Karnataka High Court
B V Srinivas vs Sri Ujinappa on 10 September, 2024
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NC: 2024:KHC:36983
RSA No. 270 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 270 OF 2021 (SP)
BETWEEN:
B.V. SRINIVAS
S/O LATE VENKATARAMAIAH,
AGED ABOUT 53 YEARS,
R/AT NO.1246,
J P NAGAR, 2ND STAGE
BENGALURU - 560 078.
...APPELLANT
(BY SRI. GANGADHARAIAH A.N., ADVOCATE)
AND:
SRI. UJINAPPA
S/O MUNINANJAPPA
SINCE DECEASED
REPRESENTED BY HIS LRS
Digitally signed by 1. GIRIJAMMA
SHARMA ANAND
CHAYA W/O LATE PUTTANNA
Location: High Court
of Karnataka AGED ABOUT 56 YEARS,
2. RAJAMMA
W/O LATE PUTTANNA
AGED ABOUT 52 YEARS,
3. MUNINANJAPPA
S/O UJINAPPA
AGED ABOUT 50 YEARS,
4. NAGARAJA
S/O UJINAPPA
AGED ABOUT 38 YEARS,
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RSA No. 270 of 2021
RESPONDENTS NO.1 TO 4 ARE
R/AT ADUR VILLAGE,
KASABA HOBLI, ANEKAL TALUK
BENGALURU URBAN DISTRICT.
5. A. FRANSIS
S/O ANTHONAPPA
AGED ABOUT 37 YEARS,
6. A. BALARAJU
S/O ANTHONAPPA
AGED ABOUT 32 YEARS
7. A. JOSEPH
S/O ANTHONAPPA
AGED ABOUT 29 YEARS,
RESPONDENTS NO. 5 TO 7 ARE
R/AT KALENA AGRAHARA
M L A LAYOUT,
BANNERUGHATTA MAIN ROAD,
BENGALURU - 560 076.
8. BOBEN GEORGE
S/O GEORGE KARACHIRA
AGED ABOUT 49 YEARS,
R/AT VILLA NO. C-01
PRIDE CROSS WINDS
BUKKASAGARA JIGANI HOBLI
ANKEAL TALUK
BENGALURU - 560 083.
...RESPONDENTS
(BY SRI. M.A.SEBASTIAN, ADVOCATE FOR R8;
R1 TO R7 SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
JUDGMENT AND DECREE DATED 14.10.2020 PASSED IN
R.A.No.5045/2017 ON THE FILE OF THE III ADDITIONAL
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RSA No. 270 of 2021
DISTRICT AND SESSIONS JUDGE, ANEKAL, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 11.11.2016 PASSED IN OS.No.1554/2006 (OLD OS
No.328/2005) ON THE FILE OF THE SENIOR CIVIL JUDGE,
ANEKAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by the plaintiff challenging the
Judgment and Decree dated 14.10.2020 in R.A.No.5045/2017
on the file of III Addl. Dist. and Session Judge, Bengaluru Rural
District, Sitting at Anekal, dismissing the appeal and confirming
the Judgment and Decree dated 11.11.2016 in
O.S.No.1554/2006 (O.S.No.328/2005), partly decreeing the
suit of the plaintiff.
2. For the sake of convenience, parties are referred to as
per their status before the Trial Court.
3. It is the case of the plaintiff that defendants are the
absolute owner of the suit schedule property and they agreed
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to sell the suit schedule property in favour of plaintiff for sum of
Rs.2,29,125/- as per the agreement of sale dated 24.03.2003
and the plaintiff has paid Rs.1,00,000/- as advance amount and
agreed to pay the balance sale consideration within six months
from the date of agreement. It is the case of the plaintiff that
despite plaintiff requested the defendants to execute the
registered Sale Deed, however, the defendants failed to
perform their part of the contract and as such plaintiff has filed
suit in O.S.No.328/2005 before the Trial Court seeking relief of
specific performance of Agreement of Sale dated 24.03.2003,
and the same was re-numbered as O.S.No.1554/2006.
4. On service of summons, defendants 1 to 3 failed to
appear and accordingly, they were placed ex-parte. Defendant
Nos.4 to 6 appeared through their counsel and filed written
statement denying the averments made in the plaint. It is the
case of the defendants that the plaintiff has created Agreement
of Sale to knock off the property and further stated that, the
defendants 4 to 6 have purchased the suit schedule property
from defendant Nos.1 to 3 as per the registered Sale Deed
dated 29.06.2005, and therefore, defendants sought for
dismissal of the suit.
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5. The Trial Court based on the pleadings formulated issues
for its consideration. In order to establish their case, plaintiff
has examined himself as P.W.1 and got marked ten documents
as Exs.P1 to P10. Defendant No.4 was examined as D.W.1 and
produced twenty-two documents which were marked as Exs.D1
to D22. The Trial Court, after considering the material on
record, by its Judgment and Decree dated 11.11.2016,
dismissed the suit of the plaintiff in respect of the specific
performance of the contract, however directed the defendant
Nos.1 to 3 to refund the earnest money with interest. Feeling
aggrieved by the same, the plaintiff has preferred appeal in
R.A.No.5045/2017 and same was resisted by defendants. The
First Appellate Court after re-appreciating the material on
record dismissed the appeal, consequently, confirmed the
Judgment and Decree in O.S. No.1554/2006. Feeling aggrieved
by the same, plaintiff has preferred this appeal.
6. I have heard Sri. A.N. Gangadharaiah, learned counsel
for the appellant. It is the contention of the appellant that both
the Courts below have not considered the material on record in
the right perspective and further the finding recorded by the
courts below, that plaintiff was not ready and willing to perform
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his part of contract within six months from the date of the
contract, is without any basis and accordingly, sought for
interference of this court.
7. In the light of the submissions made by the learned
counsel appearing for the appellant, it is not in dispute that
defendants 1 to 3 are owner of the schedule property and they
have agreed to sell the suit schedule property in favour of
plaintiff for a sum of Rs.2,29,125/- as per the agreement of
sale dated 24.03.2003. It is stated in the agreement that the
plaintiff has to perform his part of contract within six months
from the date of Agreement of Sale. In the backdrop of the
said aspect, it is the case of the plaintiff that he was always
ready and willing to execute the registered Sale Deed.
However, perusal of the finding recorded by both the courts
below reveals that, no steps have been taken by the plaintiff
calling upon the defendant to execute the registered Sale Deed
within six months from the execution of the contract. It is also
forthcoming from the records of the Courts below that plaintiff
has not taken steps to issue notice to the defendant Nos.1 to 3
calling upon them to execute the registered Sale Deed.
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8. On the other hand, defendants have issued legal notice
dated 24.06.2004 (Ex.P2) calling upon the plaintiff to register
the sale deed and at that juncture, plaintiff has issued reply
seeking relevant documents with regard to the subject land in
question. It is to be noted that the said notice dated
24.06.2004 is issued after the expiry of one year and therefore,
the plaintiff has not shown any cogent evidence to satisfy that
he was always ready and willing to perform his part of the
contract. At this juncture, it is relevant to follow the declaration
of law made by the Hon'ble Supreme Court in the case of
VIJAY KUMAR AND OTHERS VS. OM PARKASH reported in AIR
2018 SC 5098, wherein it is held that the plaintiff has to prove
his readiness and willingness to perform his part of contract
and same has to be shown throughout the existence of the
agreement. It is also relevant to cite the Judgment of the
Hon'ble Supreme Court in the case of SHENBAGAM AND
OTHERS Vs. K.K. RATHINAVEL reported in AIR 2022 SC 1275,
and following the declaration of above mentioned judgments,
the finding recorded by both the Courts below is just and
proper and does not call for interference in this appeal.
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9. In that view of the matter, as the appellant has not made
out a case for framing substantial question of law as required
under Section 100 of CPC, this Regular Second Appeal is
rejected at the admission stage itself.
10. Consequently, I.A.1/2021 does not survive for
consideration.
Sd/-
(E.S.INDIRESH)
JUDGE
sac
