Karnataka High Court
G Lakshmipathaiah vs Sri. Doddannachar on 19 November, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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RSA No. 2439 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO. 2439 OF 2018 (SP)
BETWEEN:
G.LAKSHMIPATHAIAH
SINCE DEAD BY LR'S,
1. SRI. MALLEGOWDA,
S/O LATE G.LAKSHMIPATHAIAH,
AGED ABOUT 66 YEARS,
2. SRI. D.L.GOPANNA,
S/O LATE G.LAKSHMIPATHAIAH,
AGED ABOUT 45 YEARS,
3. SRI. D.L.JAYARAMEGOWDA,
S/O LATE G.LAKSHMIPATHAIAH,
AGED ABOUT 40 YEARS,
4. SRI. D.L.MANJUNATH,
LATE G.LAKSHMIPATHAIAH,
AGED ABOUT 38 YEARS,
Digitally signed by
THEJASKUMAR N
Location: High ALL ARE R/AT DODDAHOSAHALLI VILLAGE,
Court of Karnataka
PURAVARA HOBLI,
MADHUGIRI TALUK-572 175.
...APPELLANTS
(BY SRI. NAGARAJA.S., ADVOCATE)
AND:
1. SRI. DODDANNACHAR
S/O LATE HANUMANTHACHAR,
AGED ABOUT 65 YEARS,
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RSA No. 2439 of 2018
2. SRI. PRAKASH
S/O DODDANNACHAR,
AGED ABOUT 34 YEARS,
3. SRI. MOHANKUMAR
S/O DODDANNACHAR,
AGED ABOUT 30 YEARS,
RESPONDENTS NO.1 TO 3 ARE
R/AT DODDAHOSAHALLI VILLAGE,
PURAVARA HOBLI,
MADHUGIRI TALUK-572 175.
4. SRI H.VENKATARAMACHAR
S/O LATE HANUMANTHACHAR,
AGED MAJOR,
R/AT 1ST CROSS ROAD,
NEAR FOREST DEPARTMENT,
HOSAKOTE, HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT-582 114.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908,
SEEKING CERTAIN RELIEFS.
THIS REGULAR SECOND APPEAL IS LISTED FOR
ADMISSION, THIS DAY, A JUDGMENT IS DELIVERED AS
UNDER:
ORAL JUDGMENT
Sri.S.Nagaraja., counsel for the appellants has appeared
in person.
2. This is an appeal from the court of Prl. Senior Civil
Judge and JMFC, Madhugiri.
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3. For the sake of convenience, the parties are
referred to as per their status and rankings before the Trial
Court.
4. The brief facts are these:
The plaintiff filed a suit seeking the relief of specific
performance of a contract in respect of the suit schedule
property and the event of their failure, for the appointment of a
Court Commissioner to execute the sale deed. It is contended
that during March 1998, the sale talks were held and the sale
price was fixed at Rs.8,000/-. On 12.03.1998, defendant No.1
agreed to sell with the plaintiff for himself and on behalf of
minor defendants 2 and 3 as the minor guardian. It is
contended that the defendants received the full sale
consideration amount of Rs.8,000/- on the date of the
agreement and agreed that they would execute a regular sale
deed as and when desired by the plaintiff.
It is contended that in April 1998, the plaintiff approached
the defendants to execute the sale deed, but the defendants
postponed the matter. During the second week of July 2007,
they refused to perform their part of the contract. It is
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contended that the plaintiff was always ready and willing to
perform his part of the contract. Hence, he issued legal notice
and after that, was constrained to take shelter under the Court
of law and filed a suit seeking the relief of specific performance.
After the service of the suit summons, the defendants
appeared through their counsel filed a written statement and
denied the plaint averments. They specifically contended that
the suit schedule property is a joint family property and the
katha and pahani are standing in their joint names, as such,
defendant No.1 was not the absolute owner of the suit schedule
property. The fourth defendant specifically denied the execution
of an agreement of sale. Among other grounds, they prayed for
the dismissal of the suit.
Based on the above pleadings, the Trial Court framed
issues, and the parties led evidence and exhibited the
documents. On the trial of the action, the Trial Court vide
Judgment dated 29.01.2015 dismissed the suit. The plaintiff
assailed the Judgment and Decree of the Trial Court before the
First Appellate Court in R.A.No.37/2015 on the file of Prl. Senior
Civil Judge and JMFC, Madhugiri. On an appeal, the First
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Appellate Court vide Judgment dated 06.08.2018 dismissed the
appeal and confirmed the Judgment and Decree of the Trial
Court.
5. Sri.S.Nagaraja., counsel for the appellants in
presenting his arguments submits that the Judgment and
Decree of the Trial Court and the First Appellate Court are
contrary to the law and facts and the evidence available on
record.
Next, he submits that the Court of Facts has failed to
consider the evidence of PW1 to PW4, wherein it has been
specifically stated that the plaintiff was always ready and willing
to obtain the sale deed by performing his part of the obligation.
A further submission is made that the Court of Facts has
failed to consider that the executant of Ex.P.9 Agreement of
Sale, defendant No.1 has not been examined.
Counsel further contended that the Courts have failed to
consider and appreciate the admission made by DW2 who has
admitted the signature of defendant No.1, who is none other
than his brother.
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Counsel vehemently contended that the Trial Court has
erred in holding that defendant No.4 has not agreed to sell the
suit schedule property even though the material evidence
available on record proves that defendant No.4 is also a
signatory to the document. Counsel submits that the Trial Court
has erred in concluding that the first notice was issued during
the year 1998 in the absence of any pleading and evidence
regarding the same.
Lastly, he submits that viewed from any angle the
findings recorded by both the Courts lack judicial reasoning.
Therefore, he prayed that this Second Appeal may be admitted
by framing substantial questions of law.
Heard the arguments and perused the appeal papers with
care.
6. The facts are sufficiently said and they do not
require reiteration. The issue revolves around a narrow
compass. The suit is one for specific performance. Article 54 of
the Limitation Act prescribes three years as the period within
which a suit for specific performance can be filed. The period of
three years is to be calculated from the date specified in the
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agreement for performance or in the absence of any such
stipulation, within three years from the date of the performance
is refused. The Apex Court in a catena of decisions has made it
clear that even where time is not the essence of the contract,
the plaintiff must perform his part of the contract within a
reasonable time. In the present case, the plaintiff contends that
defendants 1 and 4 executed an agreement for sale in his favor
on 12.03.1998. However, the plaintiff filed a suit in the year
2007.
An attempt was made on behalf of the plaintiff to contend
that several oral requests were made to the defendants to
come forward and execute the sale deed but the defendants
never performed their part of the contract. In this Court also,
he has adhered to the said contention. It is pivotal to note that
according to the plaintiff the agreement was executed in the
year 1998 but he did not take steps to enforce the same till
2007. There is nothing on record to show that from the date of
the alleged agreement till the issue of a legal notice in the year
2007, a single attempt was made by the plaintiff to perform his
part of the contract and compel the defendants to come
forward and execute the sale deed. Though the time was not
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the essence of the contract, the plaintiff has not approached
the Court within a reasonable time.
Moreover, specific performance is a relief that the Court
will not give, unless in cases when the parties seeking it come
promptly. There is a substantial delay in seeking the relief. The
rights must be exercised within a reasonable time and the
rights of equity are rights that are given to people who are
vigilant and not to those who sleep.
The Trial Court extenso referred to the material on record
and rightly concludes that the plaintiff has failed to perform his
part of the contract and there is an inordinate delay in seeking
the relief of specific performance and dismissed the suit. The
Trial court also concluded that the plaintiff has failed to prove
that the defendants have executed an agreement for sale of the
property in question. In my view, the conclusion arrived at by
the Trial court requires no interference.
On an appeal, the First Appellate Court has examined the
evidence on record and re-appreciated it. I am satisfied that it
has been appreciated from the correct perspective. The
concurrent finding of facts, however erroneous, cannot be
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disturbed by the High Court in the exercise of the power under
Section 100 of CPC. The substantial question of law has to be
distinguished from a substantial question of fact. The findings
recorded by both the Courts are either vitiated by non-
consideration of relevant evidence or by an erroneous approach
to the matter. Where based on evidence on record the Trial
Court and the First Appellate Court had concurrently arrived at
a finding of fact, the High Court in the Second Appeal cannot
reverse the said concurrent findings under ordinary
circumstances.
It is perhaps well to observe that after the 1976
amendment, the scope of Section 100 of the CPC has been
drastically curtailed and narrowed down. Under Section 100 of
the Code of Civil Procedure 1908 (as amended in 1976) the
jurisdiction of the High Court to interfere with the judgment of
the Court below is confined to hearing substantial questions of
law. Interference with a finding of a fact by the High Court is
not warranted if it involves re-appreciation of the evidence.
No substantial question of law arises for consideration in
this appeal. As a result, I find no merit in this appeal.
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7. Resultantly, the Regular Second Appeal is
dismissed at the stage of admission.
In view dismissal of the appeal at the stage of admission,
pending interlocutory applications if any are disposed of.
Sd/-
(JYOTI MULIMANI)
JUDGE
TKN
