Karnataka High Court

Rajesh S/O Meghraj Jain vs Kallappa S/O. Basavantappa Karennavar on 19 November, 2025

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                                                               NC: 2025:KHC-D:15868
                                                            RSA No. 100503 of 2017


                         HC-KAR




                        IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
                         DATED THIS THE 19TH DAY OF NOVEMBER, 2025
                                              BEFORE
                                THE HON'BLE MR. JUSTICE C M JOSHI
                        REGULAR SECOND APPEAL NO.100503 OF 2017 (SP)
                         BETWEEN:

                         RAJESH S/O. MEGHRAJ JAIN,
                         AGE: 33 YEARS, OCC. AGRICULTURE, BUSINESS,
                         R/O. RAMDATTA APARTMENT,
                         KESHWAPUR, HUBBALLI,
                         DIST. DHARWAD-580032.
                                                                          ...APPELLANT
                         (BY SRI. PRASHANT S. HOSMANI, ADVOCATE)
                         AND:
                         1.   KALLAPPA S/O. BASAVANTAPPA KARENNAVAR,
                              AGE: 52 YEARS, OCC. AGRICULTURE,
                              R/O. KUSUGAL, HUBBALLI,
                              DIST. DHARWAD-580032.

                         2.   NEELAWWA W/O. KALLAPPA KARENNAVAR,
                              AGE: 47 YEARS, OCC. HOUSEHOLD WORK,
                              R/O. KUSUGAL,
                              HUBBALLI, DIST. DHARWAD-580032.
           Digitally
           signed by

YASHAVANT
           YASHAVANT
           NARAYANKAR    3.   SHIVAPPA S/O. KALLAPPA KARENNAVAR,
NARAYANKAR Date:
           2025.11.20
           14:49:15
                              AGE: 44 YEARS, OCC. HOUSEHOLD WORK,
           +0530
                              R/O. KUSUGAL,
                              HUBBALLI, DIST. DHARWAD-580032.
                                                                       ...RESPONDENTS
                         (R1 TO R3-HELD SUFFICIENT)

                               THIS RSA IS FILED UNDER SECTION 100 R/W. ORDER 41 RULE
                         1 OF CPC, PRAYING TO CALL FOR THE RECORDS, PERUSE THE SAME
                         AND MODIFY THE JUDGMENT AND DECREE IN R.A.NO.105/2015
                         PASSED BY THE I ADDL. SENIOR CIVIL JUDGE, HUBBALLI DATED
                         08.12.2016 AND THE JUDGMENT AND DECREE IN O.S.NO.420/2012
                         PASSED BY THE III ADDL. CIVIL JUDGE AND JMFC HUBBALLI, DATED
                         07.08.2015 AND DECREE THE SUIT OF THE APPELLANT IN ENTIRETY
                         IN THE INTEREST OF JUSTICE AND EQUITY.
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                                            NC: 2025:KHC-D:15868
                                         RSA No. 100503 of 2017


HC-KAR




     THIS APPEAL, COMING ON FOR ADMISSION                THIS     DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER.

                          ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C M JOSHI )

Heard the learned counsel appearing for the appellant.

2. None appears for the respondents.

3. Being aggrieved by the judgment and decree in

R.A.No.105/2015 by I Additional Senior Civil Judge, Hubballi

dated 08.12.2016 and the judgment and decree in

O.S.No.420/2012 passed by III Additional Civil Judge and

J.M.F.C., Hubballi dated 07.08.2015 whereby the suit filed by the

appellant for specific performance was decreed in part directing

the defendants to refund the sum of ₹1,40,000/- along with

interest at the rate of 12% per annum from the date of

agreement. The plaintiff is before this Court in second appeal.

4. The factual background of the case is that on

21.01.2010 defendant No.1 executed a registered agreement of

sale in favour of the appellant/plaintiff concerning an agricultural

land measuring 1 acre 32 guntas in R.S.No.144/4 of Kusugal

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village out of a total 3 acres 24 guntas. Defendant No.1 had

received a sum of ₹1,00,000/- at the time of executing the

agreement of sale and thereafter, an additional sum of ₹40,000/-

was paid to defendant No.1 since there was family necessity for

him. A receipt was also executed for the same. When the

appellant requested defendant No.1 to execute the registered

sale deed by receiving the balance amount of ₹4,000/-, the

defendants under one or the other pretext, postponed and

avoided the execution of the sale deed. Therefore, the plaintiff

was constrained to file the suit seeking the specific performance

of the agreement of sale dated 21.01.2010.

5. On service of notice, all the defendants appeared

through their counsels and defendant No.1 filed his written

statement denying the contentions of the plaintiff. It was

contended that defendant No.1 is an illiterate person and was a

simpleton and he had not entered into any sale agreement with

the plaintiff. It is contended that one real estate agent had taken

defendant No.1 to the office of the sub-registrar and asked him

to sign as a witness and by misrepresentation, the suit

agreement was got executed by the plaintiff. It was alleged that

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he never received any amount as advance sale consideration

from time to time and therefore, defendant No.1 receiving the

sum of ₹1,40,000/- do not arise and as such, the suit be

dismissed.

6. On the basis of the above pleadings, the Trial Court

framed the following issues:

"i) Whether the plaintiff proves that defendant No.1 has agreed to sell suit property in favour of plaintiff for valuable consideration of Rs.

1,44,000/- vide registered agreement of sale deed 21.01.2010 in favour of plaintiff?

ii) Whether the plaintiff proves that plaintiff has performed his part of contract?

iii) Whether the plaintiff proves that defendant has failed to perform his part of remaining contract?

iv) Whether the plaintiff proves that plaintiff is ever ready and willing to perform his part of remaining contract?

v) Whether the defendant No.1 proves that the plaintiff in collusion with real estate agent obtained his signature and photograph of defendant No.1 on alleged agreement of sale by playing fraud?

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vi) Whether the plaintiff is entitled to the remedy as prayed for?

vii) Whether the plaintiff is entitled to any other remedy?

viii) What order or decree?"

7. The plaintiff examined himself as PW.1 and Ex.P.1 to

Ex.P.7 were marked. The Defendants did not enter the witness

box to adduce any evidence.

8. After hearing the arguments, the Trial Court

answered issue Nos.1 to 4 in the affirmative, issue No.5 in the

negative and answering issue Nos.6 and 7 partly in the

affirmative decreed the suit directing the defendants to pay the

sum of ₹1,44,000/- with interest at the rate of 12% per annum

from the date of agreement, till realization.

9. Being aggrieved, the plaintiff approached the First

Appellate Court and after hearing the appellant, the respondents

in the appeal had not appeared despite service of notice. The

First Appellate Court held that it was only the sum of

₹1,40,000/- which should have been ordered to be refunded by

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the defendants to the plaintiff and accordingly, modified the

decree passed by the Trial Court.

10. Being aggrieved, the plaintiff is before this Court.

11. The learned counsel appearing for the appellant

would submit that the exercise of the discretion by the Trial

Court as well as the First Appellate Court is erroneous. He would

submit that out of the total sale consideration of ₹1,44,000/-, he

had paid a sum of ₹1,40,000/- to defendant No.1 and therefore,

there was no reason to hold that defendant No.1 is not liable to

execute the sale deed. He further submits that exercise of the

discretion by the Trial Court as well as the First Appellate Court

is not on sound judicial principles and therefore, the decree to

refund the earnest money paid by the appellant is incorrect. He

submits that when the defendants had not adduced any evidence

placing on record the hardship that they may encounter, it was

not right on the part of the Trial Court and the First Appellate

Court to exercise the discretion in favour of the defendants. He

also points out that the conduct of the plaintiff demonstrates that

he was always ready and willing to perform his part of the

contract. But on the other hand, the conduct of defendant No.1

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is not acceptable. He points out that earlier the name of the

defendant No.1 was entered in the revenue records and later,

conspicuously, defendant No.1 got entered the names of

defendant Nos.2 and 3 also in the revenue records. On this

ground, he submits that the appeal be admitted.

12. A careful perusal of the records would reveal that

even though there was no evidence on record on behalf of the

defendants, the Trial Court in paragraph No.25 of its judgment

holds that the total extent of the land is 3 acres 24 guntas and it

was a property acquired by defendant No.1 in a partition among

his father and brothers. Therefore, it is an ancestral property in

the hands of defendant No.1 and as such, defendant Nos.2 and 3

are also entitled for having their share in the suit schedule

property. It was noticed that the names of defendant Nos.2 and

3 have been entered in the records, which cannot be disputed. It

was observed that the share of defendant No.1 was only 1/3rd,

which would come to about 1 acre 8 guntas. But the agreement

was in respect of 1 acre 32 guntas. Therefore, it opines that the

agreement in any way binds defendant No.1 alone and except

mentioning that there was a family necessity for defendant No.1,

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there is nothing else on record which is available. Therefore, the

Trial Court opines that the agreement will not bind the entire

claim made by the plaintiff. In that background, it came to the

conclusion that the discretion cannot be exercised in favour of

the plaintiff.

13. The First Appellate Court, in paragraph No.23 of its

judgment records that the plaintiff is a businessman and not an

agriculturalist and there is no evidence on record to show that he

is an agriculturalist by profession. It notices that the plaintiff has

no intention to purchase the property and therefore, it concurs

with the reasoning assigned by the Trial Court.

14. It is pertinent to note that the question whether the

plaintiff was a businessman or not and whether he had an

intention to purchase the property or not cannot be the ground

for exercising or denying the discretion. What is the discretion

that is to be exercised by the Trial Court is judicial discretion but

not anything else. The reasons for discretion are to be judicially

acceptable. They cannot act in the vacuum. It is not under the

whims and fancies of either the Trial Court or the First Appellate

Court. If we examine the discretion and the reason given by the

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Trial Court, no fault can be found that it had exercised a judicial

discretion in that regard. Though the First Appellate Court holds

that the plaintiff is a businessman and he is not an agriculturalist

etc., they are not based on any evidence on record and

therefore, they cannot fall in the category of judicial discretion

which is enunciated by the High Court and the Hon'ble Apex

Court.

15. It is also pertinent to note in the case of Satya Jain

(dead) through LRs. and others vs. Anis Ahmed Rushdie

(dead) through LRs. and others1, the Hon'ble Apex Court has

held that escalation of the price is also one of the reasons which

may be considered. Though Section 16 of the Specific Relief Act,

1963 (for short, hereinafter referred to as 'the Act') specifically

says that the escalation of the price may not be a reason for

denying the specific performance, the judicial pronouncements

which may be found in the judgment of the Hon'ble Apex Court

in the case of Satya Jain (supra) shows that there is a marked

deviation from the principles laid down under Section 16 of the

Act.