Karnataka High Court
Smt Noorjan Begum vs Sri Yellappa on 15 November, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2024:KHC:46515
RFA No. 587 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 587 OF 2023 (SP-)
BETWEEN:
SMT. NOORJAN BEGUM
W/O JAMEELULLA KHAN,
AGED ABOUT 67 YEARS,
RA/T NO 45, 2ND MAIN ROAD,
KRISHNAREDDY LAYOUT,
SARABANDEPALYA,
BANASHANKARI, J. P. NAGAR,
BENGALURU - 560 078.
...APPELLANT
(BY SRI. RAJA SUBRAHMANYA BHAT, ADVOCATE)
AND:
SRI. YELLAPPA
S/O B. M. RAMAKRISHNAPPA,
AGRICULTURIST,
Digitally signed by
VEDAVATHI A K R/O ANNAHALLI VILLAGE,
Location: High KASABA HOBLI,
Court of MULABAGILU TALUK,
Karnataka
KOLAR DISTRICT - 563 131.
...RESPONDENT
(BY SRI. RAMACHANDRA HALINATHOTA, ADVOCATE)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W
SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
25.06.2019 PASSED IN OS No.297/2016 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, MULBAGILU, ALLOWING THE
SUIT FOR SPECIFIC PERFORMANCE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-2-
NC: 2024:KHC:46515
RFA No. 587 of 2023
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
Though this matter has come up for admission.
2. This appeal is filed by the appellant/ defendant
under Section 96 of CPC., for setting aside the judgment and
decree passed by the Senior Civil Judge, JMFC, Mulbagilu, in
O.S.No.297/2016 dated 25.06.2019.
3. Heard the arguments of learned counsel for the
respondent and appellant.
4. The rank of the parties before the Trial Court is
retained for the sake of convenience.
5. The case of the plaintiff before the Trial Court is
that the plaintiff and defendant entered into an agreement of
sale for selling of the suit schedule property for sale
consideration of Rs.14,00,000/-, said to be paid the advance
consideration at the first instance of Rs.5,50,000/- and later
part payment made, totally Rs.9,50,000/- has been paid to the
defendant and the defendant not execute the sale deed. Hence,
constrained to file the suit against the defendant for specific
NC: 2024:KHC:46515
performance of contract by receiving the balance sale
consideration of Rs.4,50,000/-.
6. After issuing of summons the defendant appeared
before the court and filed written statement by denying the
agreement of sale, taking the contention that it is only the loan
agreement and prayed for dismissal of suit.
7. Trial Court has framed the 7 issues which are as
under;
1) Whether the plaintiff proves that the defendant
has agreed to sell the suit properties for a sum of
Rs.14 lakhs and executed a registered sale
agreement in his favour on 05.12.2013 after
receiving an advance amount of Rs.4 lakhs?
2) Whether the plaintiff proves that he has paid a
total sum of Rs.5,50,000/- to the defendant on
various days as averred in para 4 and 5 of the plaint
excluding the payment of advance amount on
05.12.2013?
3) Whether the plaintiff proves that he is ready,
every and always to perform his part of contract?
4) Whether the defendant proves that the
plaintiff has insisted her to execute a security bond
for the loan borrowed by her and obtain her
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signatures on some documents on 05.12.2013 by
stating that it is a security bond?
5) Whether the defendant proves that the
plaintiff has misrepresented and cheated her to get
the alleged sale agreement executed in his favour?
6) Whether the plaintiff is entitled for the suit
reliefs as prayed for?
7) What order or decree?
8. The plaintiff himself examined as P.W.1 and
examined one witness as P.W.2 and got marked 8 documents.
The defendant not led any evidence and not marked any
documents in support of her case. The Trial Court after hearing
the arguments decreed the suit of the plaintiff. Being aggrieved
by the same the defendant is before this court.
9. The learned counsel for the appellant/defendant is
contended that though the Trial Court has given an opportunity
to cross examine the P.W.2 on the application filed by the
appellant/defendant, but without giving an opportunity for
leading defendant evidence, directly posted the matter for
arguments of the defendant and even no arguments has been
addressed, directly posted the matter for the judgment, and
decreed the suit. Hence prayed for setting aside the judgment
NC: 2024:KHC:46515
and giving an opportunity to lead evidence of the defendant
and dispose the matter on merits. The learned counsel also
produced the order sheet of the Trial Court.
10. The respondent counsel objected the appeal
contending that the opportunity was given to the appellant,
they are not led any evidence subsequent to the recalling of the
P.W.2 for the cross examination. Thereafter the question of
giving an opportunity does not arises, except request made by
the defendant before the court, no application came to be filed
for leading defendant evidence. Hence prayed for dismissal of
the appeal.
11. Having heard the arguments and perused the
record.
12. The plaintiff claims the property under the
agreement of sale, as they have paid Rs.9,50,000/- as advance
sale consideration under the agreement, and Rs.4,50,000/-
payable as balance amount but in spite of issuing notice the
defendant failed to perform his part of contract, the plaintiff is
ready and willing to perform his part of contract. Therefore filed
the suit against the defendant. Of course the defendant also
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appeared before the Trial Court and Trial Court also framed the
issues. It is seen from the order sheet of the Trial Court which
is produced by the learned counsel for the appellant, where the
evidence of the P.W.1 was completed, later the plaintiff
examined one more witness as P.W.2. When the defendant
counsel was absent, the cross examination of P.W.2 was taken
as nil. Thereafter the case was adjourned for arguing the
matter. The Trial Court heard the arguments of plaintiff on
22.10.2018 and post the matter for arguments of the
defendant and later on 26.10.2018 the counsel for the
defendant files I.A. for recalling the P.W.1 and accordingly
which was allowed by the Trial Court by imposing cost of
Rs.250/- and later the P.W.1 was partly cross examined on
04.12.2018. On 13.03.2019 P.W.1 was fully cross examined
and P.W.2 was cross examined only on 11.06.2019. In this
intervening period the witness remained absent continuously
and for one or other reasons the case was dragged by the
parties. On 11.06.2019 evidence of P.W.2 was completed as
per the order sheet of the Trial Court and posted the matter for
arguments of the defendant. On 18.06.2019 it has stated heard
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the arguments of defendant and ultimately the impugned
judgment passed by the Trial Court.
13. On careful perusal of the records once, case was
closed by completing the evidence of plaintiff side and taken
the evidence of defendant as nil and once reopen the case for
allowing the defendant to cross examine the P.W.1 and 2 the
Trial Court ought to have given the opportunity for leading the
evidence by the defendant also, directly posted the matter for
arguments, once the case is reopened, recalled the witnesses,
the opportunity ought to have given by the Trial Court for
leading evidence of the defendant, whether they requested or
not requested, it is the procedure should be followed by the
Trial Court, opportunity should be given by the Trial Court to
the defendant to establish the case. Therefore without going to
the merits of the case, in order to give an opportunity to the
defendant to lead the evidence and also for the purpose of
cross examination, matter is required to be remitted back to
the Trial Court. Hence the following;
ORDER
(i) The appeal is allowed in part.
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(ii) The judgment and degree passed by
Senior Civil Judge, JMFC, Mulbagilu, in
O.S.No.297/2016 dated 25.06.2019 is hereby set
aside.
(iii) The matter is remitted back to the trial
Court for fresh consideration
(iv) The appellant-defendant shall pay cost of
Rs.5,000/- to the respondent-plaintiff within two
weeks.
(v) The parties shall appear before the trial
Court on 03.12.2024, without any further notice.
(vi) The trial Court shall dispose of the matter
within 6 months.
(vii) The parties shall not take any
adjournments.
Sd/-
(K.NATARAJAN)
JUDGE
SRK/-
List No.: 1 Sl No.: 34/-
CT:SK
