Karnataka High Court
Sushilkumar S/O Appasaheb Kodate vs Basavaraj S/O Shankrappa Tumbaraguddi ... on 23 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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RFA No. 100132 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 23RD 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. 100132 OF 2024 (SP-)
BETWEEN:
SUSHILKUMAR,
S/O APPASAHEB KODATE,
AGE: 42 YEARS,
OCC: LECTURER,
R/O. RUSHED ROAD,
GANDHINAGAR, 5TH CROSS,
DHARWAD-580002.
...APPELLANT
SAMREEN (BY SRI. B V SOMAPUR,ADVOCATE)
AYUB
DESHNUR
AND:
SAMREEN AYUB
DESHNUR
HIGH COURT OF
KARNATAKA BASAVARAJ,
DHARWAD BENCH
S/O SHANKRAPPA TUMBARAGUDDI,
(SINCE DECEASED BY HIS LRS)
1. SMT GEETA,
W/O BASAVARAJ TUMBARAGUDDI,
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK,
R/O. 1ST CROSS, GANDHINAGAR,
DHARWAD-580002.
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RFA No. 100132 of 2024
HC-KAR
2. TARUN,
S/O BASAVARAJ TUMBARAGUDDI,
AGE: 22 YEARS,
OCC: STUDENT,
R/O. 1ST CROSS, GANDHINAGAR,
DHARWAD -580002
3. SNEHA,
D/O BASAVARAJ TUMBARAGUDDI,
AGE: 20 YEARS,
OCCU: STUDENT,
R/O. 1ST CROSS, GANDHINAGAR,
DHARWAD-580002.
4. PREETI,
D/O BASAVARAJ TUMBARAGUDDI,
AGE: 16 YEARS, OCCU: STUDENT,
R/O. 1ST CROSS, GANDHINAGAR,
DHARWAD-580002
(SINCE MINOR REPRESENTED BY HER
NATURAL MOTHER APPELLANT NO 1
SMT GEETA,
W/O BASAVARAJ TAMGBARAGUDDI )
...RESPONDENTS
(RESPONDENTS - SERVED & UNREPRESENTED)
THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD
29.11.2023 PASSED IN O.S.NO.388/2022 ON THE FILE OF THE
IV ADDL. SENIOR CIVIL JUDGE AND JMFC DHARWAD, PARTLY
DECREED THE SUIT FILED FOR SPECIFIC PERFORMANCE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RFA No. 100132 of 2024
HC-KAR
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
JUDGMENT
(PER: HON'BLE MR. JUSTICE C.M. POONACHA)
The above appeal is filed by the plaintiff calling in question
the judgment and decree dated 29.11.2023 passed in O.S.
No.388/2022 by the IV Additional Senior Civil Judge & JMFC,
Dharwad1, whereunder the suit for specific performance filed by
the plaintiff has been dismissed by the Trial Court.
2. The parties will be referred to as per their rank
before the Trial Court, for the sake of convenience.
3. It is the case of the plaintiff that one Basavaraj (who
was originally arrayed as defendant in the suit) was the owner of
the suit properties and that he had agreed to sell the same to
the plaintiff for a total sale consideration of Rs.20,00,000/-.
Accordingly, the plaintiff and the said Basavaraj entered into a
registered agreement of sale dated 05.05.2021 whereunder the
original deceased defendant agreed to sell the suit properties to
Hereinafter referred to as 'the Trial Court'
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the plaintiff for a total sale consideration of Rs.20,00,000/- and
an advance of Rs.6,00,000/- was paid by the plaintiff to the said
original deceased defendant on the said date. It was agreed
between the parties that the registered sale deed would be
executed within one month on which date the balance sale
consideration of Rs.14,00,000/- was required to be paid. It is the
further case of the plaintiff that he was ready and willing to pay
balance sale consideration and complete the sale transaction and
was following up with the original deceased defendant for the
said purpose. However, the original deceased defendant was
postponing the same due to various reasons. It is the further
case of the plaintiff that in the month of July 2021, the original
deceased defendant obtained a sum of Rs.5,00,000/- as hand
loan from the plaintiff promising to pay the same within three
months and issued a cheque with respect to the said hand loan
transaction which was dishonoured when presented for
encashment. That the plaintiff got issued a legal notice to the
original deceased defendant and vide reply dated 16.09.2022,
the deceased defendant refused to execute the sale deed
consequent to which the plaintiff filed the suit seeking for specific
performance.
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4. The defendant was served with the suit summons,
however, he was placed ex parte. During pendency of the suit,
the original defendant having died, his wife and children were
brought on record as defendants No.1(a) to 1(d). The said
defendants No.1(a) to 1(d) also having been served with the suit
summons did not enter appearance before the Trial Court and
were placed ex parte. The defendant No.1(d) being a minor, the
Trial Court appointed a court guardian on her behalf to contest
the suit. The court guardian representing defendant No.1(d) filed
written statement contesting the plaint averments and sought for
dismissal of the suit.
5. Consequent to the pleadings of the parties, the Trial
Court framed the following issues:
"1. Whether the plaintiff proves that the defendant has
executed an agreement of sale on 05.05.2021
agreeing to sell the suit properties in his favour for
the total sale consideration of Rs.20 lakh and out of
it, he has received an amount of Rs.6 lakh as earnest
money?
2. Whether the plaintiff further proves that he has always
been ready and willing to perform his part of
contract?
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3. Whether the plaintiff is entitled to the specific
performance of agreement of sale dated 05.05.2021
as sought for?
4. What order or decree?"
6. The plaintiff examined himself as P.W.1 and got
marked Exs.P.1 to P.9. No oral or documentary evidence was
adduced on behalf of the defendants. The Trial Court, by its
judgment and decree dated 29.11.2023 recorded a finding that
the agreement between the parties being a registered one, the
plaintiff has adequately proved the execution of the same. With
regard to readiness and willingness, the Trial Court recorded a
finding that the plaintiff proved his readiness and willingness to
complete his part of the contract, but however,since the original
defendant had died during the pendency of the suit, the Trial
Court granted the alternative relief of refund of earnest money of
Rs.6,00,000/- together with interest at 10% per annum. Being
aggrieved, the plaintiff has preferred the above appeal.
7. Heard the submissions of the learned counsel for the
appellant/plaintiff.
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8. The notice issued to respondents No.1 to 4 in the
present appeal has been served and they have remained
unrepresented.
9. It is the contention of the learned counsel for the
appellant/plaintiff that the Trial Court having recorded a finding
that the plaintiff has proved the agreement of sale dated
05.05.2021 and has also proved his readiness and willingness to
complete his part of the sale transaction, has erred in denying
the relief of specific performance. Hence, he seeks for allowing of
the present appeal and granting of the relief sought for.
10. The submissions of the learned counsel for the
appellant-plaintiff have been considered, and the materials on
record including the records of the Trial Court have been
perused.
11. The question that arises for consideration in this
appeal is:
Whether the Trial Court was justified in
refusing the relief of specific performance as sought
for by the plaintiff?
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12. It is pertinent to note here that the Trial Court has
framed issued No.1 as to whether the plaintiff has proved the
execution of the agreement of sale dated 05.05.2021, as also
frame issued No.2 as to whether the plaintiff proves that he was
ready and willing to perform his part of the contract. The Trial
Court while considering the said issues has recorded a finding
that the plaintiff has proved the due execution of the agreement
dated 05.05.2021 (Ex.P.1). The Trial Court has further recorded
a finding that the plaintiff has proved his readiness and
willingness to complete his part of the sale transaction. The Trial
Court has framed issue No.3 as to whether the plaintiff is entitled
for specific performance of the agreement of sale dated
05.05.2021. The Trial Court while considering the said aspect of
the matter as to whether the plaintiff is entitled to specific
performance of the agreement of sale has held as under:
"8(d). It is also the contention of the plaintiff that
he has been ever ready and willing to perform his part of
contract as envisaged under Ex.P1. But the deceased
defendant during his lifetime, he did not come forward to
perform his part of contract as envisaged under Ex.P1.
There is no contrary evidence on record against this
averment of the plaintiff with regard to readiness and
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willingness. Therefore, I am of the opinion that the
plaintiff has been ready and willing to perform his part of
contract as envisaged under Ex.P1. Though the plaintiff
proves the execution of agreement of sale dated
05.05.2021 and also his readiness and willingness to
perform his part of contract as envisaged under Ex.P1,
but it pertinent to mention here that the suit properties
are standing in the name of deceased defendant namely
Basavaraj Shankrappa Tumbarguddi and he died during
the pendency of this suit. Though the plaintiff brought the
wife of deceased and his three children on records as
defendant No.1(a) to (d), but it is not clear from the
documents produced by the plaintiff that, whether the
deceased defendant had only four LRs or he had any
other person as his legal representative/heir. Further,
defendant No.1(d) is a minor and he is represented by
court guardian. The defendant No.1(d) being minor, no
liability can be fixed against him. Therefore, I am of the
opinion that, if the earnest money received by the
deceased defendant is ordered to be returned to the
plaintiff with interest at the rate of 10% from the
defendant No.1(a) to (c), then the purpose would be
served and the plaintiff will not to be subjected to much
hardship. Therefore, having regard to the facts and
circumstances of this case and in view of death of
defendant during the pendency of this suit, the specific
performance of agreement of sale dated 05.05.2021 with
respect to the suit properties in favour of plaintiff cannot
be performed, as such the plaintiff is entitled to
alternative relief of refund of earnest money with interest
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at the rate of 10% from the date of 05.05.2021 till the
realization of entire amount from the defendant No.1(a)
to (c)".
(emphasis supplied)
13. It is pertinent to note that the Trial Court has noticed
that the owner of the property i.e., the original defendant died
during the pendency of the suit and that his wife and children
have been brought on record as defendants No.1(a) to 1(d).
Although it is the vehement contention of the learned counsel for
the appellant/plaintiff that there are material to demonstate that
defendants No.1(a) to 1(d) are the sole surviving legal
representatives of the deceased defendants, it is pertinent to
note here that the Trial Court held that there is no material
brought on record by the plaintiff to demonstrate that
defendants No.1(a) to 1(d) are the sole surviving legal
representatives of the deceased defendant. The finding recorded
by the Trial Court to refuse the specific performance is ex facie
erroneous and liable to be interfered with.
14. However, it is pertinent to note here that
respondents No.1 to 4 have been served and are unrepresented
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in the present appeal. Having regard to the same and having
regard to the fact that it is expedient to afford another
opportunity to the appellant/plaintiff to adduce material before
the Trial Court to place on record material to demonstrate that
the respondents herein are the sole surviving legal
representatives of the deceased defendant, and to enable the
Trial Court to re-appreciate the oral and documentary evidence
on record and to consider the aspect with regard to grant of
specific performance of the agreement of sale dated 05.05.2021,
keeping in mind the Specific Relief (Amendment) Act of 2018, it
is just and appropriate that the matter be remanded to the Trial
Court. The question framed for consideration is answered
accordingly.
15. In view of the aforementioned, the following:
ORDER
i) The above appeal is allowed;
ii) The judgment and decree dated 29.11.2023 passed
in O.S. No.388/2022 by the IV Additional Senior Civil
Judge & JMFC, Dharwad, is hereby set aside and the
matter is remitted back to the Trial Court for fresh
consideration in accordance with law;
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iii) The appellant/plaintiff shall appear before the Trial
Court on 29.10.2025 without the requirement of any
further notice being issued in this regard;
iv) After appearance of the appellant/plaintiff, the Trial
Court shall issue notice to defendants No.1(a) to 1(d)
and thereafter proceed further in accordance with
law;
v) Until the conclusion of the proceedings before the
Trial Court, the respondents herein are restrained
from alienating the suit property in any manner.
Registry of this Court shall refund the Court fee paid by the
appellant in the present appeal to the appellant.
The Registry shall transmit the records of the Trial Court
forthwith.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
KMS
