Karnataka High Court

Shafi-Ur-Rehman S/O Atha Ur-Rehman vs Sri Mohammed Abdulla S/O Late Mohammed on 9 September, 2025

Author: S.R. Krishna Kumar

Bench: S.R. Krishna Kumar

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                                                         NC: 2025:KHC-D:11591-DB
                                                         RFA No. 100372 of 2024


                        HC-KAR




                       IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
                         DATED THIS THE 9TH DAY OF SEPTEMBER 2025
                                          PRESENT
                        THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
                                             AND
                          THE HON'BLE MR. JUSTICE C.M. POONACHA
                       REGULAR FIRST APPEAL NO. 100372 OF 2024 (SP-)

                       BETWEEN:

                       SHAFI-UR-REHMAN S/O. ATHA-UR-REHMAN,
                       AGED ABOUT 47 YEARS, OCC: BUSINESSMAN,
                       R/O. B.J. EXTENSION, 22ND WARD, BELLARY ROAD,
                       BEHIND METRO HARDWARE, HOSAPETE,
                       DIST: VIJAYANAGARA-583 201.
                                                                       ...APPELLANT
                       (BY SRI. R.H. ANGADI, ADVOCATE)

                       AND:

                       SRI. MOHAMMED ABDULLA
                       S/O. LATE MOHAMMED SIDDQUI SAB,
YASHAVANT
                       AGED ABOUT 50 YEARS, OCC: BUSINESSMAN,
NARAYANKAR
                       R/O. DOOR NO.1950/2, 29TH WARD, 7TH CROSS,
Digitally signed by
YASHAVANT
                       B.D.C.C. BANK COLONY, M.J. NAGAR, HOSAPETE,
NARAYANKAR
Location: HIGH COURT
OF KARNATAKA
                       DIST: VIJAYANAGARA-583 201.
DHARWAD BENCH
DHARWAD                                                         ...RESPONDENT
                       (BY SRI. GURUDEV GACHHINAMATH, ADVOCATE FOR C/R)

                            THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING
                       TO SET ASIDE THE IMPUGNED JUDGMENT DATED 10.07.2024
                       AND DECREE DATED 19/07/2024 IN O.S.NO.81/2020, ON THE
                       FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
                       HOSAPETE, AND CONSEQUENTLY DISMISS THE SUIT FILED BY
                       THE PLAINTIFF BY ALLOWING THE APPEAL, TO MEET THE ENDS
                       OF JUSTICE.
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                                                    NC: 2025:KHC-D:11591-DB
                                                    RFA No. 100372 of 2024


    HC-KAR




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


CORAM:          THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
                 AND
                 THE HON'BLE MR. JUSTICE C.M. POONACHA


                                  ORAL JUDGMENT

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

The present appeal is filed under Section 96 of the Code

of Civil Procedure, 19081, by the appellant/defendant

challenging the judgment and decree dated 10.07.2024

passed in O.S.No.81/2020 on the file of Additional Senior Civil

Judge and JMFC, Hosapete2, whereunder, the suit for specific

performance of contract filed by the respondent/plaintiff has

been decreed by the Trial Court.

2. The parties will be referred to as per their ranking

before the Trial Court, for the sake of convenience.

3. It is the case of the plaintiff that the defendant

agreed to sell the suit property to the plaintiff, and

Hereinafter referred to as the 'CPC'

Hereinafter referred to as the 'Trial Court'

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accordingly, the parties entered into an agreement of sale

dated 29.12.2018, whereunder the defendant agreed to sell

the suit property to the plaintiff for a total sale consideration

of ₹75,52,000/-. That the plaintiff has paid a total sum of

₹64,00,000/- towards the said sale consideration. It is the

case of the plaintiff that he was always ready and willing to

pay the balance sale consideration, but since the defendant

failed to complete the sale transaction in terms of the

agreement dated 29.12.2018, the plaintiff issued a legal

notice dated 28.08.2020, and thereafter filed the suit.

4. The defendant entered appearance through his

counsel and filed a written statement contending, inter alia,

that the plaintiff and defendant were friends, and that the

defendant, being an innocent and gullible person, was taken

undue advantage of by the plaintiff, who got the agreement

executed from him. It was specifically contended that the

agreement dated 29.12.2018 was not an agreement of sale.

The payment of part sale consideration by the plaintiff was

also disputed. It was also contended that the plaintiff has no

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fixed avocation and lacked the capacity to pay the sale

consideration. The various other defences were also raised by

the defendant.

5. Consequent to the pleadings of the parties, the

Trial Court framed the following issues:

"1) Whether the plaintiff proves that he has advanced loan of Rs.24 lakhs on 12.12.2018, Rs.12 lakhs on 31.10.2018, 18 lakhs on 16.11.2018 and Rs.10 lakhs on 29.12.2018 to the defendant and in total Rs.64 lakhs?

2) Whether the plaintiff proves that the defendant agreed to sell the suit schedule property in favour of the plaintiff and executed a Sale Agreement on 29.12.2018?

3) Whether the plaintiff further proves that the defendant agreed to repay the loan borrowed by him with interest @ 1.50% per month?

4) Whether the plaintiff is entitle for the relief sought for?

5) What order or decree?"

6. The plaintiff examined himself as PW.1 and marked

documents as Exs.P1 to Ex.P17. Four witnesses have been

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examined as PW.2 to PW.5. In order to prove his defence, the

defendant did not adduce any oral or documentary evidence.

The Trial Court, by its order dated 10.07.2024, decreed the

suit of the plaintiff and passed the following:

ORDER

"The suit of the plaintiff's is hereby decreed with cost.

The defendant is hereby directed to execute the register sale deed in favour of the plaintiff with respect to suit schedule property within two months from the date of this judgment.

If the defendant failed to execute the register sale deed within two months, the plaintiff is at liberty to get execute the register sale deed through court as per law.

Draw decree accordingly."

7. Being aggrieved, the defendant has filed the

present appeal.

8. Heard the submissions of learned counsel for the

appellant/defendant and learned counsel for the

respondent/plaintiff.

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9. Assailing the judgment and decree passed by the

Trial Court, learned counsel for the appellant contends, inter

alia, that the finding of the Trial Court that the agreement

dated 29.12.2018 was an agreement of sale is erroneous,

having regard to the various materials on record. It is also

specifically contended that the plaintiff has not paid the

alleged amount of ₹64,00,000/- and that the plaintiff does not

have the capacity to pay the said amount.

10. Per contra, the learned counsel for the respondent

submits that the judgment and decree passed by the Trial

Court is just and proper and the same ought not to be

interfered with by this Court in the present appeal.

11. Although various contentions have been urged by

both the parties, it is forthcoming from the material on record

that the defendant has filed his written statement contesting

the case of the plaintiff. However, the defendant has not

cross-examined the witnesses examined by the plaintiff and

has also not adduced any oral or documentary evidence.

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12. It is forthcoming from paragraph No.6 of the

impugned judgment that the counsel appearing for the

defendant retired from the case. The notice issued by the Trial

Court to the defendant was returned with the endorsement

'unclaimed'.

13. It is clear from the aforementioned that the

defendant except filing of the written statement has not

contested the case of the plaintiff. In the present case,

valuable rights of the contesting parties are required to be

adjudicated including rights in immovable property. Therefore,

before adjudication on the merits is made, it is expedient that

the defendant be afforded another opportunity to contest the

case of the plaintiff on its merits by cross-examining the

witnesses examined on behalf of the plaintiff, and also by

affording another opportunity to adduce oral and documentary

evidence.

14. In view of the aforementioned, the following:

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ORDER

i) The above appeal is allowed;

ii) The judgment and decree dated 10.07.2024

passed in O.S.No.81/2020 on the file of

Additional Senior Civil Judge and JMFC,

Hosapete, is set aside;

iii) Both the parties shall appear before the Trial

Court on 16.10.2025 without the requirement of

any further notice being issued in this regard;

iv) Upon appearance of the parties, the Trial

Court shall afford another opportunity to the

defendant to cross-examine the witnesses

examined on behalf of the plaintiff;