Allowed

Smt Govindamma v. Sri C Thimme Gowda

Karnataka HC15 Jul 2021RFA/541/2017

Case brief

AI extract

What is this about?

The High Court allowed a regular first appeal filed by the plaintiff against the dismissal of her suit for specific performance. Finding that the trial court erred in relying on a written statement filed by minor defendants whose natural guardian was absent, and noting that some minors had attained majority, the High Court set aside the impugned judgment, discharged the former guardian's role, per

What did the court decide?

Impugned judgment and decree set aside; appeal allowed; matter remanded to trial court for reconsideration; respondents permitted to prosecute in individual capacity.

Smt Govindamma Vs Sri C Thimme Gowda — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE S. SUJATHA

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AND

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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REGULAR FIRST APPEAL NO.541 OF 2017

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Between:

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Smt. Govindamma W/o late Keshavala Naidu Aged about 60 years Residing at No.67, 12^th Cross Gangamma Layout Ashoknagar Bengaluru - 560028.

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…Appellant

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(by Shri N.R. Naik, Advocate)

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And:

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Sri C. Thimme Gowda s/o late C. Channaiah aged about 58 years

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Sri Shashank S/o Sri C. Thimmegowda Aged about 20 years

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Kum. Shalini D/o Sri C. Thimme Gowda Aged about 17 years

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Since minor represented by her natural guardian and father Sri Thimme Gowda

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All are residing at No.76/2 2^nd Main, 3^rd Block Thyagarajanagara Bengaluru - 560 028.

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…Respondents

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(by Shri Aravind H., Advocate of R1; Shri S. Srinivasa Murthy, Advocate for R2 and R3)

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This Regular First Appeal is filed under Section 96 of CPC against the judgment and decree dated 01.03.2017 passed in OS No.7047 of 2013 on the file of the XI Additional City Civil Judge, Bengaluru city dismissing the suit for specific performance.

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This appeal, coming on for further hearing, this day, INDIRESH J., delivered the following:

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J U D G M E N T

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This appeal is directed against the judgment and decree dated 01^st March, 2017 passed in Original Suit No.7047 of 2013 by the XI Additional City Civil Judge, Bengaluru (for short, hereinafter referred to as 'the trial Court’), dismissing the suit of the plaintiff.

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For the sake of convenience, the parties in this appeal are referred to with their status and rank before the trial Court.

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The averments made in the plaint are that the plaintiff and defendants had entered into a sale agreement dated 15^th April, 2011 in respect of the schedule property. It is further averred that, originally the suit schedule property belong to one Venkataswamappa; and mother of the first defendant hereinBoramma purchased the schedule property under Registered sale deed dated 26^th November, 1992. Mother of the first defendant died leaving behind first defendant and his sisters Smt. C. Lakshmi and Padmavathi as her legal heirs. It is further averred in the plaint that the sisters of defendant No.1 had filed OS No.615 of 2005 against the first defendant and same came to be disposed of in terms of the Compromise Memo filed by the parties therein, allotting one-third share to each parties. In terms of the said compromise entered into between parties, ‘C’ schedule property has been allotted to defendant No.1 and item No.2 in ‘C’ schedule property is the subject matter of the present suit. It is further stated in the plaint that the defendant No.1 intend to sell the suit schedule property in the interest of minors (respondents No.2 and 3 herein) as natural guardian, and as such, entered into sale agreement with the plaintiff on 15^th April,

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2011, agreeing to sell the suit schedule property for a total sale consideration of Rs.1,00,00,000/-. In pursuance of the said agreement of sale dated 15^th April, 2011 plaintiff has paid Rs.25,00,000/- by way of Demand Draft as advance sale consideration and agreed to pay the balance amount of Rs.75,00,000/- to the defendants within six months from the date of execution of the registered Sale deed. It is further stated in the plaint that the plaintiff has paid Rs.5,00,000/- each on two occasions and as such, the total part-payment, as advance made by the plaintiff to the defendants, was Rs.35,00,000/-. In terms of the agreement of sale, defendants shall get the katha in the name of the first defendant and also pay necessary taxes to the concerned authority. It is further averred in the plaint that the plaintiff was always ready and willing to perform her part of the contract and as such, the plaintiff requested the defendants to complete the sale transaction by execution of registered sale deed in the month of November, 2012. However, for the reasons best known to the defendants, defendants postponed the execution of the sale deed on one or the other pretext and as such, plaintiff caused

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legal notice dated 19^th November, 2012 to defendants, calling upon them to honour the terms of agreement of sale. It is further pleaded in the plaint that defendants have failed to comply with the terms of the notice, nor replied to the notice and as such, the plaintiff instituted suit in OS No.7047 of 2013, seeking relief of specific performance of the agreement of sale dated 15^th April, 2011.

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Pursuant to the summons issued by the Court, defendant No.1 remained absent and placed ex-parte. However, defendants 2 and 3, being the minor children of the first defendant entered appearance through their counsel and filed detailed written statement denying the averments made in the plaint. The defendants 2 and 3 admitted that the sale agreement has been executed in favour of the plaintiff agreeing to sell the suit schedule property for consideration of Rs.1,00,00,000/- and as such, on the date of the agreement of sale, they admit that they received sum of Rs.25,00,000/through demand draft as advance sale consideration and thereafter received Rs.5,00,000/- each on two occasions and

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therefore, the defendants 2 and 3 stated that they have received Rs.35,00,000/- from the plaintiff. It is further stated in the written statement that first defendant being a natural guardian of the second and third respondents is bound to protect the interest of the minors.

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The trial Court, after considering the pleadings on record, formulated the following issues for consideration:

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Whether the plaintiff has proved that she has been ever ready and willing to perform her part of contract under sale agreement dated 15.04.2011?

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Whether the plaintiff has proved that she is entitled for the relief of specific performance of the agreement?

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What decree or order?

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In order to prove their case, plaintiff was examined as PW1 and got marked 5 documents as Exhibits P1 to P5. No evidence on the part of the defendants. The trial Court, after considering the material on record, by its judgment and decree dated 01^st March, 2017 dismissed the suit. Being aggrieved by the

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impugned judgment and decree passed by the trial Court, plaintiff has presented this appeal.

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We have heard Sri N.R. Naik, learned counsel appering for the appellant/plaintiff and Sri Aravind for Respondnet No.1; and S. Srinivas Murthy, learned counsel appearing for respondents 2 and 3.

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Sri N R Naik, learned counsel appearing for the appellant submitted that the plaintiff has paid, in total, Rs.35,00,000/- out of Rs.1,00,00,000/- to the defendants as per the agreement of sale dated 15^th April, 2011 and caused notice on 19^th November, 2012, calling upon the defendants to perform their part of contract and the said aspect of the matter was not properly appreciated by the learned trial Judge. It is his submission that the defendants 2 and 3 entered appearance, filed written statement admitting the payment of Rs.35,00,000/as advance sale consideration in terms of the agreement of sale dated 15^th April, 2011 and so also, defendant No.1 placed exparte and as such, he has not contested the case on merits, and

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therefore, he contended the finding recorded by the trial Court requires to be set aside in this appeal.

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Per Contra, Sri S. Srinivasa Murthy, learned counsel appearing for the respondents 2 and 3 argued that the defendants 1 and 2 have not appeared before the trial Court nor filed written statement. It is his submission that the defendants 1 and 2 came to know about the proceedings, only after receipt of notice from this Court.

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Having heard the learned counsel appearing for the parties, we have carefully examined the finding recorded by the trial Court and given our anxious consideration to the submission made by the learned counsel appearing for the parties. Notably, the defendants 2 and 3 were minors, aged about 16 and 13 years respectively, at the time of filing of the suit. Perusal of the finding recorded by the trial Court indicate that the defendant No.1 was placed ex-parte and defendants 2 and 3 are the children of defendant No.1 who were minors, and as such, entered appearance through their natural guardian i.e. defendant No.1. Undisputably, the defendants 2 and 3 had filed

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written statement and admitted the execution of the agreement of sale dated 15^th April, 2011, so also, receipt of Rs.35,00,000/as advance sale consideration. In the backdrop of these findings recorded by the trial Court, we have carefully considered application IA.I of 2018 filed by the appellant under Order XXXII Rule 3 of Code of Civil Procedure to appoint the defendant No.1 as natural guardian of defendant No.3 to prosecute the case. We have also noticed IA.I of 2021 filed by respondents 2 and 3 under Order XXXII Rule 12(2) read with Section 151 of the Code of Civil Procedure, seeking permission of the Court to discharge the natural guardian and to prosecute the appeal in their individual capacity as they had attained majority. In the affidavit accompanying IA.I of 2021, at paragraph 2, defendant No.2 has stated that, “ we were not aware about the earlier proceedings and we came to know when we received the notice from this Hon’ble Court. ” Perusal of the aforesaid statement made by the defendant No.2 on affidavit, conjointly the submission made by the learned counsel for the respondents 2 and 3 that the defendants 2 and 3 have not filed written statement nor contested the matter on merits. In this context,

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the finding recorded by the trial Court reveals that the trial court, on misconception of facts, accepted the averments made in the written statement and answered the issues against the plaintiff. However, taking into consideration the statement made by the defendant No.2 in IA.I of 2021 and the submission made by the learned counsel appearing for the respondent No.2, the finding recorded by the trial Court, based on the written statement of the defendant No.2 and 3 is required to interfered with in this appeal. Strangely, if at all, the defendants 2 and 3 had filed written statement before the trial Court, apparently, the defendant No.1 being a father, would have signed the written statement, as a natural guardian of defendants 2 and 3. Incidentally, defendant No.1 himself is placed ex-parte before the trial Court and therefore, we are of the view that the impugned judgment and decree passed by the trial Court is liable to be set aside, remanding the entire case on merits, to the trial Court to decide all the issues, after affording opportunity of hearing to both the parties including filing any pleadings on record in their support. We have also noticed that the appellant has filed application in IA.I of 2018 seeking to appoint the first

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respondent, i.e. father of respondent No.3, as natural guardian to prosecute the above appeal, however, both the respondents 2 and 3 having attained majority, the said application in IA.I of 2018 deserves to be dismissed. The respondents 2 and 3 have filed application in IA.I of 2021 under Order XXXII Rule 12(2) of Code of Civil Procedure seeking permission of the Court to prosecute the aforesaid appeal in their independent capacity as they have attained majority and same is disputed by the other side and therefore, IA.I of 2021 deserve to be allowed permitting the respondents 2 and 3 to prosecute the appeal in their individual capacity. In that view of the matter, in the ends of justice and to address all the issues involved in the suit, so also provide opportunity to all the parties to advance their contentious issues, and for adjudication afresh, we pass the following:

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O R D E R

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i) Appeal is allowed;

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ii) The impugned judgment and decree dated 01^st

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March, 2017 passed in Original Suit No.7047 of

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2013 is set aside and the matter is remanded to the trial Court for re-consideration keeping open all the rights and contentions of the parties;

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iii) Since the respondents 2 and 3 have attained age of majority, are permitted to prosecute the appeal in their individual capacity; In view of the same, appointment of guardian is rejected; IA.1 of 2021 is allowed. IA.1 of 2018 is dismissed;

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iv) Registry shall refund the court fee in terms of the Karnataka Court Fees and Suit Valuation Act, 1958;

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v) Since the parties are represented by their learned counsel, the parties or their learned counsel shall appear before the trial Court on 18^th August, 2021 without awaiting for any notice and shall take further orders;

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vi) All the pending IAs. stand disposed of

accordingly.

Sd/JUDGE

Sd/JUDGE

lnn

Smt Govindamma v. Sri C Thimme Gowda

Case brief

What is this about?

What did the court decide?

Smt Govindamma v. Sri C Thimme Gowda

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

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