Karnataka High Court
Smt Latha W/O. Ramesh Shet vs Krishnaji S/O Srinivasrao Punji on 29 May, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC-D:7121-DB
RFA No. 100169 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100169 OF 2022 (SP)
BETWEEN:
SMT. LATHA
W/O. RAMESH SHET
AGE: 48 YEARS, OCC: BUSINESS,
R/O: 2ND CROSS, KEMPAGERI,
LINE BAZAR, DHARWAD-580001.
...APPELLANT
(BY SRI.S.C.HIREMATH, ADVOCATE)
AND:
Digitally signed
by BHARATHI H
M
Location: HIGH
COURT OF
KARNATAKA
1. KRISHNAJI
DHARWAD
BENCH
Date:
S/O. SRINIVASRAO PUNJI
2024.05.31
10:32:22 +0530 AGE: MAJOR, OCC: BUSINESS,
R/O: 32/2, KALYAN NAGAR,
VIDYA NAGAR, HUBBALLI,
DIST: DHARWAD-580031.
SHIVAPRASAD
S/O. ISHWAR KOWDI
AGE: 62 YEARS, OCC: BUSINESS,
SINCDE DECEASED BY HIS LRs.,
2. SMT. VIJAYALAXMI
W/O. SHIVAPRASAD KOWDI
-2-
NC: 2024:KHC-D:7121-DB
RFA No. 100169 of 2022
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SHAMBHAVI COLONY, GANDHI NAGAR,
DHARWAD-580001.
3. SMT. SUSHMA
W/O. VIRUPAXAPPA @ RAJU KOWDI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: IIND CROSS,
RAMANAGAR,
HOSAYALLAPUR ROAD,
DHARWAD-580001.
4. THE MANAGER
KSFC, RAYAPUR,
P.B.ROAD,
DHARWAD.
...RESPONDENTS
(BY SRI.MUKUND B.PATHAK, ADVOCATE FOR R1;
SRI.KOWDI RAJU ISHWAR, ADVOCATE FOR R3)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 29.01.2022 PASSED IN
O.S.NO. 5/2015 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD,
PARTLY DECREEING THE SUIT FILED FOR SPECIFIC
PERFORMANCE OF CONTRACT.
THIS RFA COMING ON FOR ORDERS, THIS DAY,
T.G.SHIVASHANKARE GOWDA, J., DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-D:7121-DB
RFA No. 100169 of 2022
JUDGMENT
Learned counsel for the appellant has filed a memo
for withdrawal of appeal, which reads as under:
"Herein the Appellant humbly submits as
under:
That the above appeal is filed challenging the
Judgment and Decree by which the specific
performance of contract by the Respondent was
denied and refund of earnest money was ordered.
Now the Respondent No 1 who is the developer and
executed the agreement of sale has executed the
regular sale deed on 25/3/24. Hence the appellant
does not want to prosecute with the appeal and
prays this Hon'ble Court to dispose off the appeal as
not pressed. The Appellant also humbly prays the
Hon'ble Court to refund the full court/permissible
Court Fee as per the decision of Hon'ble Supreme
Court in the interest of justice and equity."
2. Learned counsel for the respondent No.3 submitted
that IA No.2/2024 is filed by him under Section 195 of
Cr.P.C. to initiate the proceedings against the appellant
and 1st respondent for the offences under Sections 193,
199, 209 of IPC. In view of the said application, plaintiff
NC: 2024:KHC-D:7121-DB
shall not be permitted to withdraw the appeal and action
shall be initiated against appellant and 1st respondent on
the said application.
3. It is pertinent to note that the plaintiff has filed a suit
before the trial court seeking Specific Performance of
Contract against the respondent Nos.1 to 4. By judgment
dated 29.01.2022, the said suit came to be decreed partly
directing the first defendant to refund earnest money of
Rs.5,00,000/- to the plaintiff with interest at 12% p.a.
from the date of sale agreement i.e. from 12.08.2014 to
till its realization. Aggrieved by the same, plaintiff has filed
present appeal seeking relief of Specific Performance of
Contract.
4. In the meantime, the appellant and the 1st first
respondent have filed compromise petition before this
Court and this Court on 25.05.2022 has observed that the
2nd and 3rd respondents are the owners of the suit
property, 1st respondent is only the developer, without 2nd
and 3rd respondents he joined in execution of sale deed,
NC: 2024:KHC-D:7121-DB
there will be no complete transfer of interest and
compromise petition between complainant and 1st
respondent is inadmissible and notice was ordered against
the respondent Nos.2 and 4.
5. Subsequently, another compromise petition is filed
by the appellant and 1st respondent on 12.03.2024 which
is not accepted by the Court.
6. Now, by virtue of the memo, the appellant submits
that appeal is not pressed.
7. The objection of the learned counsel for the 3rd
respondent that excluding the 3rd respondent, appellant
and 1st respondent entering into a compromise in
commission of an offence against 3rd respondent and
appellant cannot be permitted to withdraw the suit and
appeal has to be decided on merits.
8. On perusal of the application in IA No.2/2024 filed by
the 3rd respondent, alleged offences are under Sections
193, 199 and 209 of IPC. We have perused the said
NC: 2024:KHC-D:7121-DB
provisions of law. The application filed by the 3rd
respondent is misconceived. The appellant cannot be
prevented from withdrawing the appeal. If 3rd respondent
is aggrieved on account of compromise between appellant
and 1st respondent, he can independently work out his
remedy in separate proceedings. Accordingly, IA
No.2/2024 is misconceived and stands dismissed.
9. Memo filed by the appellant is placed on record.
10. Appeal is dismissed as not pressed in view of the
memo filed by the appellant.
11. Refund of court fee is allowed in accordance with law.
12. Pending IAs are disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
HMB
