Partly allowed

Ramappa S/O Kallappa Talawar, v. Farooq S/O Mahammadjafar Killedar

Karnataka HC22 Sept 2012RSA/5872/2012

Case brief

AI extract

What is this about?

This second appeal concerned a specific performance suit for agricultural land where the appellant challenged an exparte decree. The court dismissed claims of improper notice but modified the decree, requiring the plaintiff to deposit additional consideration to allow the appellant to execute the sale deed.

What did the court decide?

Appellant ordered to execute sale deed if plaintiff deposits total sum of Rs.80,000 within two months failing which deed executed by court.

Ramappa S/O Kallappa Talawar, Vs Farooq S/O… — Specific Performance | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA

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CIRCUIT BENCH AT DHARWAD

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Dated this the 22^nd day of September, 2012

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Before

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THE HON’BLE MR JUSTICE HULUVADI G RAMESH

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Regular Second Appeal 5872 / 2012

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Between:

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Sri Ramappa S/o Kallappa Talawar 47 yrs, Agriculturist, R/o Murakatti Dharwad

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Appellant

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(By Sri Chandrashekar Chakalabbi, Adv.)

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And :

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Sri Farooq S/o Mahammadjafar Killedar 43 yrs, Agriculturist, R/o Murakatti Dharwad

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Respondent

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(By Sri G S Savadatti, Adv.)

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These Second Appeals are filed under S.100, CPC praying to set aside the judgment and decree dated 13.7.2012 in RA 18/2010 by the III Addl.Civil Judge (Sr.Dvn.), Dharwad.

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These First Appeals coming on for Admission, the Court delivered the following:

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JUDGMENT

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The defendant has come up in second appeal challenging the judgment and decree passed by the III Addl. Civil Judge (Sr.Dvn), Dharwad in RA 18/2010 on 13.7.2012.

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Suit was filed by the respondent plaintiff before the Civil Judge (Jr.Dvn.), Dharwad in OS 225/2009 for specific performance in respect of the suit property which is an agricultural land measuring about 1.26 acres in Sy.No.102. Survey No.102 measures a large extent out of which, as mentioned in the schedule, it was agreed to sell the property to the extent of 1.26 acres for a sale consideration of Rs.99,000/-. The defendant received Rs.60,000/- on 10.2.2001 on executing the agreement. The balance amount to be paid remained at Rs.39,000/-. According to the plaintiff, once again on 13.8.2003, defendant has received Rs.6,000/- and another Rs.3,000/- on 1.10.2003 thereby, only Rs.30,000/- remained to be paid. Despite repeated requests as the defendant avoided executing the deed, after due legal notice, suit came to be filed.

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There is also a reply to the legal notice on 30.3.2009. The trial court based on the evidence let in by the plaintiff i.e., three witnesses regarding proof of agreement entered into between plaintiff and defendant, having raised points for determination, passed an exparte decree. In the appeal filed against the said order, the lower appellate court has dismissed the appeal. Hence, this second appeal by the defendant.

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Heard the counsel representing the parties.

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According to the appellant’s counsel, there is no proper service of notice and this aspect has not been taken into consideration by both the courts below and there is no sufficient material to decree the suit in favour of the plaintiff as there was denial of transaction by way of reply, by the defendant. At least the first appellate court could have remanded the matter for fresh trial by setting aside the exparte order. It is also contended, the appellate court was not justified when the defendant had shown sufficient cause why he could

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not enter appearance before the trial court. Learned counsel also tried to canvass, referring to O 9 R 5, CPC, Andhra Pradesh High Court has opined that there should have been marking of exhibits of refusal of notice as such, substantial question of law arises for consideration.

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Per contra, counsel representing the respondent submitted that though legal notice had been issued , though it has been replied by way of denying the transaction, the defendant would have been aware of the likelihood of filing a case despite sending the summons though it was returned unserved but as a matter of further step, notice has been issued by way of registered post and that too has been refused and thereafter, the suit has been filed. Defendant had the knowledge of filing of the suit and there is legal presumption and O 9 R 5, CPC do provide for defense of the plaintiff and not to the defendant. As the suit summons and notice sent by RPAD is returned un-served and it is part of the record that RPAD has been served as such, question of holding that there is

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non-service of notice does not arise. No presumption can be drawn adverse to the service of notice. Marking is only a formality and accordingly, contended that the defendant having received substantial consideration of Rs.60,000/- out of Rs.99,000/-, kept quite for five years even after receiving an amount of Rs.6,000/- and Rs.3,000/- intermittently and only an amount of Rs.30,000/- remained to be paid, it was for the defendant to come forward to execute the sale deed in stead, he has sought to avoid the very transaction and no substantial question of law arises for consideration. Accordingly, he has sought for dismissal of the appeal.

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In the light of the arguments advanced, it appears on perusal of both the orders of the courts below, the trial court passed an exparte order. On perusal of the said order, it is noticed that the document produced by the plaintiff has been duly proved by examining two witnesses and similarly, the lower appellate court having taking into consideration and also having noted the defense of the defendant, has rejected the

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claim of the defendant. Having noted that defendant has avoided the process of court, as such, question of once again affording him opportunity and remanding the matter to the trial court does not arise and further, in the event of remand, there is likelihood of causing irreparable loss to the plaintiff, has rejected the claim of the defendant.

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Though no substantial question of law would arise for consideration, taking into consideration the market value and the rise in price index, in modification of the order of the trial court as also the lower appellate court, I hereby order that it is for the plaintiff to part another Rs.50,000/- to the defendant within two months, in addition to the balance consideration of Rs.30,000/- to be paid. On such deposit, within two months thereafter, it is for the defendant to come forward to execute the sale deed in respect of the suit property in plaintiff’s favour failing which, the sale deed be executed through the process of court.

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Appeal is disposed of accordingly.

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Sd/- Judge

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Ramappa S/O Kallappa Talawar, v. Farooq S/O Mahammadjafar Killedar

Case brief

What is this about?

What did the court decide?

Ramappa S/O Kallappa Talawar, v. Farooq S/O Mahammadjafar Killedar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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