Allowed

Dr. Khurram Niaz Ahmed Shariff v. K. C. Mahantesh

Karnataka HC3 Sept 2022RSA/39/2021

Case brief

AI extract

What is this about?

The High Court allowed a second appeal filed by a legal heir, holding that the Appellate Court erred in decrying a suit for specific performance without bringing on record the Class-I heir of the deceased sole defendant, whom the plaintiff knew existed.

What did the court decide?

The Second Appeal was allowed. The judgment and decree of the Appellate Court are set aside. The matter is remitted back to the Appellate Court for rehearing.

Dr. Khurram Niaz Ahmed Shariff Vs K. C. Mahantesh — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.39 OF 2021 (SP)

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BETWEEN:

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DR.KHURRAM NIAZ AHMED SHARIFF S/O LATE P.S.ABDUL JABBAR SAB AGE: 55 YEARS R/O LIONS CANCER CENTER NEW CIVIL HOSPITAL, MAJURA GATE SURAT - 395001 GUJARAT STATE NOW CAMPING AT DOOR NO.161, 4^TH MAIN SHANTHINIKETAN LAYOUT ARAKERE, BENGALURU - 76

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...APPELLANT

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(BY SRI.MAHESH R UPPIN, ADVOCATE)

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AND

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K.C.MAHANTESH S/O K.R.CHANDRAPPA AGE: 41 YEARS R/O THOLAHUNASE VILLAGE DAVANGERE TALUK AND DISTRICT – 577001

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FARIDA BANU (WRONGLY SHOWN AS SMT.FARIDA BANK IN THE IMPUGNED JUDGMENT),

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D/O ABDUL JABBAR SAB AGE: 65 YEARS (WRONGLY SHOWN AS 40 YEARS IN THE IMPUGNED JUDGMENT) IN THE IMPUGNED ORDER WRONGLY SHOWN AS R/O NO.282, 4^TH MAIN ROAD YELAHANKA NEW TOWN 707 UPANAGAR, BENGALURU NORTH TALUK ACTUALLY RESIDING AT NO.187, 4^TH CROSS, 4^TH PHASE YELAHANKA NEW TOWN BENGALURU - 64

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…..RESPONDENTS

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(BY SRI.R.GOPAL, ADVOCATE FOR R.1; NOTICE TO R.2 IS D/W V/O/D 16.04.2021)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.06.2019 PASSED IN R.A.NO.101/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, DAVANGERE ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.09.2016 PASSED IN O.S.NO.754/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AT DAVANGERE AND ETC.

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THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by legal heir of

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the sole defendant feeling aggrieved by judgment and decree dated 25.06.2019 passed in R.A.No.101/2016 by

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the Appellate Court in decreeing the suit of plaintiff granting relief of specific performance of contract.

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For the sake of brevity, the parties are referred as they are ranked before the Trial Court.

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The plaintiff has instituted a suit by specifically contending that defendant – Smt.Syed Taherabanu has executed an agreement to sell and has received a sum of Rs.1,70,000/- as an advance amount out of total sale consideration of Rs.1,80,000/-. The plaintiff has filed the present suit alleging that original defendant declined to perform her part of contract. Therefore, filed a suit for specific performance of contract in O.S.No.754/2014.

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The original defendant, though appeared and filed

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vakalath, however, did not choose to file written statement and contest the proceedings.

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Though there was no contest, Trial Court dismissed the suit and therefore, plaintiff preferred an

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appeal before Appellate Court in R.A.No.101/2016. Pending consideration of regular appeal, the sole defendant, who was arrayed as respondent, died. The plaintiff filed an LR application and brought on record one Fariba Banu D/o Abdul Jabbar Sab as a legal representative of the deceased sole defendant. The Appellate Court heard the matter on merits and consequently, allowed the appeal and decreed the suit.

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The present appellant has filed this captioned second appeal by alleging that he is only Class-I heir of sole defendant - Smt.Syed Taherabanu and this fact is not at all disputed by the plaintiff. Therefore, he would contend that plaintiff consciously did not bring actual legal heir of the deceased defendant on record and therefore, judgment and decree of the Appellate Court is a nullity as the decree is reversed without bringing Class-I heir on record. He has placed reliance on para No.5 of the plaint to support his contention.

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The learned counsel appearing for plaintiff, however, countering arguments canvassed by the appellant herein would contend that Appellate Court has rightly dealt with the matter and has decided the case on merits. The daughter of the sole defendant was brought on record after due enquiry and she did not choose to contest the proceedings as she was placed absent and the matter was heard on merits. Therefore, he would contend that no substantial question of law arises for consideration. Since the Appellate Court has decided the case without asserting as to who are the legal heirs, the matter needs to be admitted and consequently, second appeal is admitted today. The substantial question of law framed by this Court is culled out as under;

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Whether judgment and decree of the Appellate Court is liable to be set-aside on the ground that decree of the Trial Court is reversed without bringing on record the class-I heir of the defendant?

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With the consent of both counsels, this matter is taken up for final hearing today. Before I proceed to further, it would be useful for this Court to cull out para No.5 of the plaint.

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"Again the plaintiff approached the defendant repeatedly requesting her to receive the balance of the consideration and execute the sale deed. But the defendant went on postponing the compliance of the terms and conditions of the agreement of sale for one reason or the other. In fact, she had a good reason also. Her husband's health was deteriorating and she was not in a position to leave him. As such in the bonafide belief, the plaintiff waited all these days for her to discharge her obligation under the contract of sale. But recently the plaintiff came to know that the husband of the defendant died leaving behind his wife the defendant and a son who is abroad. The plaintiff also came to know that the defendant is planning to join her son. Immediately the present rushed to Bangalore and approached the defendant. The defendant had assured the plaintiff that she would come

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and discharge her obligation under the contract of sale within October 2014, but has not done so. She is also not answering the calls made by the plaintiff. Since the time is running out, the plaintiff has no other go except to come forward with this suit for specific performance."

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On perusal of para No.5 of the plaint, this Court would find that original defendant had a son and it was known to plaintiff. At para No.5, plaintiff himself as stated that sole defendant had a son, who is staying abroad. If plaintiff was aware that defendant has a son, then it was incumbent on the part of the plaintiff to seek impledment of her son as one of the legal heir of the deceased sole defendant. Therefore, reversal of the judgment by the Appellate Court without brining on record the legal heir of sole defendant is not at all sustainable. On this short point, the substantial question of law framed by this Court has to be answered in the Affirmative. Accordingly, answered in the Affirmative. Hence, I pass the following;

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ORDER

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The Second Appeal is allowed .

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The judgment and decree of the Appellate Court dated 25.06.2019 passed in R.A.No.101/2016 is set-aside.

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The matter stands remitted back to the Appellate Court. The Appellate Court shall rehear the matter after affording opportunity to all the parties.

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Since the present appellant and plaintiff are before this Court, they are directed to appear before the Appellate court without awaiting any further notice from the Appellate Court. They are hereby directed to appear before the Appellate Court on 10.10.2022.

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Sd/JUDGE

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NBM

Dr. Khurram Niaz Ahmed Shariff v. K. C. Mahantesh

Case brief

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Dr. Khurram Niaz Ahmed Shariff v. K. C. Mahantesh

Case brief

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