Allowed

Sri K a Arunachalam v. Sri B Manjunath

Karnataka HC6 Aug 2021RSA/1496/2013

Case brief

AI extract

What is this about?

The Single Judge allowed a regular second appeal filed by a defendant in a suit for specific performance. The court held that the First Appellate Court and Trial Court erred in not considering the limitation plea raised by defendants, who contested that the suit was time-barred, despite raising it explicitly in their written statements without it being framed as an issue.

What did the court decide?

The regular second appeal allowed; judgments of the First Appellate Court and Trial Court set aside; matter remanded to Trial Court to frame issue on limitation.

Sri K a Arunachalam Vs Sri B Manjunath — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No. 1496/2013(SP)

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BETWEEN:

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Sri.K.A.Arunachalam, S/o.K.Raghunath Naidu, Aged about 49 years, R/at.No.429/31, 38^th Cross, 7^th Main, 2^nd Stage, 7^th Block, Jayanagar, Bangalore-560 011.

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... Appellant

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(By Sri.Krishna Murthy N., Advocate)

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AND:

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Sri.B.Manjunath, S/o.Late Police Beeraiah, Aged about 44 years, R/at Boredoddi Village, Bidadi Hobli, Hamlet of Bidadi, Ramanagara Taluk-571 511.

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T.Amaravathi,

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W/o. Late.Ravi Kumar, Aged about 44 years,

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Beeresh Kumar, S/o. Late.Ravi Kumar, Aged about 28 years,

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Anusuya,

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D/o.Late Ravi Kumar,

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Aged about 27 years,

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Respondent No.2 to 4 are residing at No.106, New Extension, Kadarenahalli, BSK 2^nd Stage, Bangalore-560 070.

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... Respondents

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(By Sri.G.B.Nandish Gowda, Advocate for R1 Notice to R2 to R4 dispensed with)

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This R.S.A. is filed U/S. 100 of CPC against the judgment & decree dated 08.11.2011 passed in R.A.No.80/2009 on the file of the District & Sessions Judge, Ramanagara, allowing the appeal and setting aside the judgment and decree dated 10.11.2009 passed in OS.No.95/2005 on the file of the Principal Civil Judge (Sr.Dn.) Ramanagara.

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This R.S.A. coming on for Admission this day, the Court, delivered the following:

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JUDGMENT

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This appeal is preferred by defendant No.4 challenging the judgment and decree dated 08.10.2011 passed in RA.No.80/2009 by the District and Sessions Judge, Ramanagara, allowing the appeal by setting aside the judgment and decree dated 10.11.2009 passed in OS.No.95/2005 by the Principal Civil Judge (Sr.Dn.) Ramanagara, dismissing the suit of the plaintiff.

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For the sake of convenience, the parties in

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this appeal shall be referred to in terms of their status and ranking before the trial Court.

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The plaint averments are that the plaintiff

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and husband of defendant No.1-late Ravi Kumar are the brothers, defendant Nos.2 and 3 are the children of defendant No.1 and deceased-Ravi Kumar. Defendant No.4 is the subsequent purchaser of the suit schedule property. It is the case of the plaintiff that, plaintiff and husband of defendant No.1 had entered into an Agreement of Sale dated 05.04.1999, in respect of suit schedule property, for a total consideration of Rs.7,50,000/- and accordingly, in terms of the said Agreement of Sale, husband of defendant No.1 received Rs.1,00,000/- as advance

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and put the plaintiff in possession of the suit schedule property. Time stipulated was 11 months to execute the Sale Deed and in the meanwhile, husband of defendant No.1 died. Thereafter, the plaintiff

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requested the wife of late Ravi Kumar i.e. first defendant to execute the Sale Deed in terms of Agreement of Sale dated 05.04.1999 and same was denied by defendant No.1, and as such, the plaintiff has caused legal notice dated 28.02.2005 to defendant No.1. Pursuant to the same, defendant No.1 issued reply notice dated 26.03.2005 denying the transaction between her husband and the plaintiff. However, during this period, defendant Nos.1 to 3 have sold the suit schedule property in favour of defendant No.4. Hence, the plaintiff has filed OS No.95/2005 on the file of the trial Court seeking relief of specific performance of the Agreement of Sale dated 05.04.1999.

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After service of summons, defendant

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Nos.1 and 2 were placed ex-parte before the trial Court. The Court guardian on behalf of defendant No.3 has entered appearance and filed written statement contending that defendant No.3 is a minor

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and took up a contention that, the suit is not maintainable since Agreement of Sale was entered on 05.04.1999 and suit is filed in the year 2005 and as such, suit is barred by limitation. Accordingly, she sought for dismissal of the suit.

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Defendant No.4 has filed written statement

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denying the plaint averments and contended that defendant Nos.1 to 3 have colluded with the plaintiff and he has no knowledge about the previous transaction between the plaintiff and defendant Nos.1 to 3. He further contended that, he is the bonafide purchaser of property in question and the suit is barred by time. Accordingly, he prayed for dismissal of the suit.

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On the basis of the rival pleadings, the trial Court has formulated following issues for its consideration:

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1. Does the plaintiff prove that the B.Ravikumar agreed to sell the suit property to him as alleged ?

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2. Does the plaintiff prove his readiness and willingness in performance of his part of the contract as alleged ?

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3. Does the defendant No.4 prove that he is a bonafide purchaser of the suit property without any notice as alleged ?

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4. Whether the plaintiff is entitled for the relief of specific performance as prayed ?

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5. What order or decree ?

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In order to establish their case, plaintiff

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examined himself as PW1 and examined two more witnesses as PW2 and PW3 and got marked 8 documents as Exs.P1 to P8. On the other hand, no evidence was adduced on behalf of defendants.

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The trial Court, after considering the

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material on record, by its judgment and decree dated 10.11.2009, dismissed the suit of the plaintiff and

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being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA.No.80/2009 on the file

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of First Appellate Court. The said appeal was resisted by the defendants. The First Appellate Court, after reappreciating the facts on record, by its judgment and decree dated 08.11.2011, allowed the appeal by setting aside the judgment and decree passed by the trial Court in OS.No.95/2005. Being aggrieved by the judgment and decree passed by the First Appellate Court, defendant No.4 has preferred this Regular Second Appeal under Section 100 of CPC.

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Sri.Krishna Murthy.N., learned counsel for defendant/appellant contends that the First Appellate Court erred in interfering with the well reasoned judgment and decree passed by the trial Court on the ground of limitation, as there was no Issue framed relating to limitation in filing the suit before the trial Court and therefore, no opportunity was given to the defendants to adduce the evidence before the trial Court. Accordingly, he sought to allow the appeal.

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Per contra, Sri.G.B.Nandish, learned

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counsel for respondent No.1 submits that, the judgment and decree passed by the trial Court does not call for interference in this appeal and accordingly, he sought for dismissal of the appeal.

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Heard the learned counsel appearing for the parties and perused the material on record.

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After perusing the finding recorded by both the courts below, I am of the considered opinion that the following substantial question of law is required to be addressed in this appeal:

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a. Whether the First Appellate Court is justified in ignoring the principle relating to limitation?

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On perusal of findings recorded by both the courts below and considering submissions made by learned counsel appearing for the parties, Issues framed by the trial Court would clearly indicate that though defendant Nos.3 and 4 had taken a plea with

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regard to the limitation, however, the trial Court has not framed any Issue relating to the limitation to file the suit. It is not in dispute that Agreement of Sale dated 05.04.1999 was entered into between the plaintiff and husband of defendant No.1 as per the records, whereas, the suit was filed on 23.05.2005. It is also forthcoming from the records that defendants have not adduced any evidence before the trial Court.

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On considering the submission made by learned counsel appearing for the parties and perusal of the findings recorded by both the courts below, it shows that, defendant Nos.3 and 4 had taken a plea that, suit is barred by time. In this regard, paragraph 4 of the written statement of defendant No.3 reads as under:

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“4. The agreement is also of the year 5-4-1999 and suit has been filed in 2005. The suit is hopelessly barred by limitation.”

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Defendant No.4, in his written statement took up contention with regard to the fact that suit is barred by limitation. Paragraph-8 of the written statement reads as under:

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“8. This defendant further submit that without prejudice to the forgoing contentions, the relief sought against the defendants 1 to 3 by the plaintiff is barred by limitation and consequently the relief sought for by the plaintiff against this defendant is also barred by limitation. On this ground alone the suit is liable to be dismissed.”

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On careful consideration of entire material on record, it would clearly indicate that, the trial Court erred in not considering the Issue relating to limitation which was raised by defendant Nos.3 and 4 in their written statement and as such, no opportunity had been given to the parties to adduce evidence with regard to the said question of law and fact. In that view of the matter, without going to the merits of the case, I am of the view that both the Courts below

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have erred in not considering the Issue relating to the limitation. Hence, the following:

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ORDER

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a) The regular second appeal is hereby allowed;

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b) The judgment and decree dated 08.10.2011 passed in RA.No.80/2009 on the file of the District and Sessions Judge, Ramanagara, is set aside.

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c) The judgment and decree dated 10.11.2009 passed in OS.No.95/2005 by the Principal Civil Judge (Sr.Dn.) Ramanagara, is set aside and matter is remanded to the trial Court to frame the Issue pertaining to the limitation as contended by defendant Nos.3 and 4 in their written statement and proceed with the matter afresh.

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d) Suit is of the year 2005, the trial Court is directed to decide the matter at the earliest in terms of observations made hereinabove;

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e) Since, the parties are represented by their respective counsel and matter is remanded

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to the trial Court, the parties are directed to appear before the trial Court on 30.08.2021 without any further notice in this regard.

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Sd/JUDGE

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Sri K a Arunachalam v. Sri B Manjunath

Case brief

What is this about?

What did the court decide?

Sri K a Arunachalam v. Sri B Manjunath

Case brief

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