Karnataka High Court
Rekha W/O Peerappa Dalawai vs Mahadev S/O Siddappa Hallure on 6 November, 2024
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NC: 2024:KHC-D:16241
RFA No. 100150 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100150 OF 2023 (SP)
BETWEEN:
1. REKHA W/O. PEERAPPA DALAWAI,
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O: C/O. PUNDALIK H. GURUSWAMY,
AT POST MARAPUR,
TQ: RABAKAVI-BANAHATTI,
DIST: BAGALKOTE.
PIN - 587311.
2. SHRINIVAS S/O. PEERAPPA DALAWAI,
AGE: 16 YEARS,
OCC: STUDENT,
R/O: C/O. PUNDALIK H. GURUSWAMY,
AT: POST MARAPUR,
TQ: RABAKAVI-BANAHATTI,
DIST: BAGALKOTE-
ASHPAK
3. SHRIDEVI D/O. PEERAPPA DALAWAI,
KASHIMSA
MALAGALADINNI AGE: 15 YEARS, OCC: STUDENT,
R/O: C/O. PUNDALIK H. GURUSWAMY,
AT: POST MARAPUR,
TQ: RABAKAVI-BANAHATTI
DIST: BAGALKOTE-587311.
Location:
HIGH
COURT OF
KARNATAKA 4. SHREYA D/O. PEERAPPA DALAWAI,
AGE: 13 YEARS, OCC: STUDENT,
R/O: C/O. PUNDALIK H, GURUSWAMY,
AT: POST MARAPUR,
TQ: RABAKAVI-BANAHATTI,
DIST: BAGALKOTE-587311
[SINCE TJHE APPELLANTS NO 2 TO 4
ARE MINORS REPRESENTED BY THEIR
GUARDIAN NATURAL MOTHER APPELLANT NO. 1].
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NC: 2024:KHC-D:16241
RFA No. 100150 of 2023
5. KENCHAPPA S/O. BASAPPA DALWAI,
AGE: 80 YEARS,
OCC: AGRICULTURE,
R/O: ALAGAWADI,
TQ: RAIBAG, DIST: BELAGAVI.
PIN- 591317.
6. SMT. GOURAVVA
W/O. KENCHAPPA DALAWAI,
AGE: 75 YEARS,
OCC: HOUSE WIFE,
R/O: ALAGAWADI,
TQ: RAIBAG
DIST: BELAGAVI
PIN - 59317.
...APPELLANTS
(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
1. MAHADEV S/O. SIDDAPPA HALLURE,
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O: ALAGAWADI,
TQ: RAIBAG, DIST: BELAGAVI.
2. BASAPPA S/O. KENCHAPPA DALAWAI,
AGE: 55 YEARS, OCC: HOUSEWIFE,
R/O. ALAGAWADI, TQ: RAIBAG,
DIST: BELAGAVI
NOW AT C/O.MAHADEVAPPA MADALAGI,
SADHUN GUDI RASTE,
AT: MAHALINGAPUR, TAL: MUDHOL,
DIST: BAGALKOTE-587313.
...RESPONDENTS
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R-1;
R-2 SERVED)
THIS RFA FILED UNDER SECTION 96 OF CPC., PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 07.06.2019 PASSED IN
O.S.NO. 15/2019 PASSED BY THE COURT OF SENIOR CIVIL JUDGE
AND JMFC., RAIBAG AND DISMISS THE SUIT BEARING
O.S.NO.344/2021 IN ITS ENTIRETY IN THE ENDS OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:16241
RFA No. 100150 of 2023
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
The legal representatives of deceased defendant No.1
are before this Court challenging the decree for refund of
earnest amount of Rs.14,50,000/- ordered to be repaid to
the plaintiff along with interest @ of 5% per annum.
2. The suit was one for specific performance of the
contract. Plaintiff claimed that on 17.03.2016 1st defendant
executed an agreement for sale to which 2nd defendant was
the consenting witness. It is further stated that
Rs.14,50,000/- was paid to 1st defendant and balance the
consideration amount of Rs.50,000/- was agreed to be paid
at the time of registration of the property agreed to be sold.
3. The suit is filed in the year 2019 alleging refusal
on the part of the defendants to execute the registered sale
deed, pursuant to the alleged agreement for sale dated
17.3.2016. Both the defendants remained exparte before the
trial Court.
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4. The trial Court recorded the evidence of the
plaintiff who apart from examining himself, examined two
witnesses and produced nine documents in support of his
claim. The trial Court framed points for consideration as to
whether the plaintiff is entitled for decree as prayed for and
held that the plaintiff is entitled to the relief of refund of the
amount and relief of specific performance is declined.
5. Though the trial Court has found that the
execution of agreement is proved and the plaintiff has
proved his readiness and willingness to perform his part of
the contract, did not grant the relief of specific performance
and granted decree for refund of the amount and no reason
is assigned as to why the plaintiff is not entitled to the relief
of the specific performance. Nevertheless, the plaintiff has
not chosen to file an appeal seeking relief of specific
performance.
6. It is also stated that the plaintiff has filed
Execution Petition to recover the decreetal amount.
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7. 1st defendant died on 26.05.2021 and the
impugned judgment and decree is delivered on 07.06.2019.
It is the legal representatives of 1st defendant who are in
appeal before this Court. It is urged that 1st defendant could
not contest the suit as he met with an accident and was
undergoing treatment when the suit summons was served.
And after the demise of 1st defendant and after the receipt of
notice in execution proceedings, the appellants came to
know about the decree passed against 1st defendant.
8. The learned counsel appearing for the appellants
would contend that 1st defendant could not have been placed
exparte as he was prevented from a genuine cause from
attending the Court on account of injuries sustained by him.
9. It is also his contention that assuming that the
notice is duly served, the Trial Court could not have decreed
the suit without properly appreciating the contentions raised
in the plaint. And it is his further contention that the
evidence led before the trial Court is not sufficient enough to
grant a decree for refund of the amount. And it is also urged
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that proper points for consideration were not framed by the
trial Court before deciding the case.
10. Learned counsel appearing for the respondents
would contend that no materials are placed before this Court
to show that 1st defendant was undergoing treatment on
account of accident when the suit summons was served on
him. It is further stated that 1st defendant could have moved
the Court to set-aside the order placing him as exparte and
could have contested the matter by seeking leave of the
Court. He would further contend that there is no challenge to
the evidence led by the plaintiff and the plaintiff has proved
the execution of agreement and witnesses have been
examined in support of the plaintiff's claim. Thus, he would
contend that no justifiable grounds are made out to set-aside
the decree which is passed based on the best evidence
available on record.
11. This Court has considered the contentions raised
at the bar and perused the records.
12. The following points arises for consideration:
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(a) Whether the appellants have made out a
case to set aside the impugned judgment
and decree and to remit the matter to the
trial Court for fresh consideration on the
premise that 1st defendant was prevented
by a genuine cause from attending the
Court?
(b) Whether the trial Court has framed proper
points for consideration while deciding the
suit.
13. It is noticed that the trial Court has not framed
any points for consideration relating to the readiness and
willingness on the part of the plaintiff to perform his part of
the contract. Nevertheless, the trial Court has given a finding
that the plaintiff was ready and willing to perform his part of
contract. However, having given that finding trial Court has
not granted relief of specific performance and granted a
decree for refund of earnest amount. It is also noticed that
the plaintiff has not filed an appeal seeking relief of specific
performance of the contract. On the other hand, he has filed
an Execution Petition to recover the amount decreed in his
favour. This aspect would clearly suggest that the plaintiff is
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not keen on getting the decree for specific performance and
he is only interested in recovering the earnest amount which
is said to have been paid to 1st defendant.
14. Learned counsel for the appellants has urged that
1st defendant was undergoing treatment in the hospital for
the injuries sustained by him. It is forthcoming from the
medical record dated 01.01.2019 that 1st defendant had
undergone surgery. Medical certificate of Ganga Surgical and
Fracture Clinic, produced by the appellants would indicate
that 1st defendant was visiting the hospital for various kinds
of treatments and he has undergone surgery for fixing the
fracture. The treatment has continued upto 12.06.2020 and
he was inpatient from 05.12.2019 to 13.12.2019. It is also
forthcoming from the records that treatment has commenced
in the month of January 2019 itself.
15. The judgment would reveal that evidence
commenced on 04.06.2019 and the judgment was delivered
on 07.06.2019. From the certificate which is produced, it is
evident that 1st defendant was in hospital/visiting the
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hospital for a considerable length of time when the trial was
going on. This being the position, this Court is of the view
that the legal representatives of 1st defendant have made out
a case that 1st defendant was prevented from a genuine
cause from attending the Court when the case was set down
for trial.
16. It is also noticed that a decree is passed for
recovery of Rs.14,50,000/- along with interest @ 5% per
annum and it is now stated that 1st defendant is no more. In
such situation in case the appellants inherit the property of
1st defendant, then the liability if proved will have to be
discharged by the legal representatives of 1st defendant.
17. Under these circumstances, this Court is of the
view that the impugned judgment and decree have to be set-
aside. However, it is also required to be noticed that the
plaintiff is put to inconvenience on account of default on the
part of 1st defendant in not contesting the matter. Hence, to
balance equity, the appellants should be directed to deposit
Rs.14,50,000/- said to have been paid by the plaintiff
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pursuant to alleged agreement for sale. However, this order
directing the appellants to deposit the amount should not be
construed as a finding on the merits of the claim of the
plaintiff.
18. As already noticed the suit is decided without
framing proper points for consideration. Hence, the matter is
to be remitted to the Trial Court.
19. Hence the following:
ORDER
(i) The appeal is allowed in-part.
(ii) The impugned judgment and decree
dated 07.06.2019 passed by the Senior
Civil Judge, Raibag, in O.S.No.15/2019
are set aside.
(iii) The matter is remitted to the trial Court
for fresh consideration in accordance with
law.
(iv) Appellants are permitted to file a written
statement within 30 days from the date
of their appearance before the trial Court.
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(v) Appellants and respondent No.1 shall
appear before the trial Court on
01.12.2024 without any further notice
from the Trial Court. The Trial Court shall
issue notice to 2nd defendant.
(vi) The appellants shall deposit
Rs.14,50,000/- before the trial Court
within 30 days from the date of their
appearance and they are also permitted
to file a written statement within 30 days
from the date of their appearance and
deposit of Rs.14,50,000/- is a condition
precedent for filing the written statement.
(vii) On such deposit, the amount shall be
kept in a nationalized Bank in Fixed
Deposit for one year with auto renewal
mandate.
(viii) In case the plaintiff succeeds in
establishing his case, the amount in
deposit shall be released in favour of the
plaintiff. In case the appellants succeed,
the amount shall be released in favour of
the appellants.
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(ix) Registry shall refund the Court fee to the
appellants or any of the appellant as
suggested by the appellants.
(x) The suit shall be decided as early as
possible within a period of one year from
the date of appearance.
(xi) It is made clear that this Court has not
expressed any opinion on the merits of
the matter and all contentions of the
parties are kept open.
(xii) Registry to return the Trial Court records.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
GVP
CT:ANB
