Allowed

Smt. Kalashree v. Sri. P. Rangappashetty

Karnataka HC28 Jun 2023RFA/1071/2023

Case brief

AI extract

What is this about?

In this regular first appeal against a decree for specific performance, the High Court held that the defendant was entitled to an opportunity to defend due to a plausible cause shown regarding health injury. The ex parte decree was set aside with the case remanded for fresh trial.

What did the court decide?

Appeal allowed; judgment and decree set aside; case remanded to Trial Court for fresh trial from the stage of filing written statement.

Smt. Kalashree Vs Sri. P. Rangappashetty — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:23615-DB RFA No. 1071 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

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REGULAR FIRST APPEAL NO. 1071 OF 2023 (SP)

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BETWEEN:

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Digitally signed by ANUSHA V Location: HIGH COURT OF KARNATAKA

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SMT. KALASHREE D/O LATE MADAPPA AND SHIVANAGAMMA AGED ABOUT 40 YEARS R/AT CHENNAVADEVANAPURA VILLAGE HOREYALA HOBLI GUNDLUPET TALUK CHAMARAJANAGARA DISTRICT-571 111. …APPELLANT

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(BY SHRI. N. NANJUNDA SWAMY, ADVOCATE)

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AND:

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SRI. P. RANGAPPASHETTY S/O LATE PUTTAVENKATAPPA AGED ABOUT 73 YEARS R/AT T. K.ROAD HEBBUR VILLAGE AND HOBLI TUMKUR TALUK AND DISTRICT-572 120. …RESPONDENT

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(BY SHRI. M.N. MADHUSUDHAN, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.10.2022. PASSED IN OS NO.79/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC GUNDLUPET, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.

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NC: 2023:KHC:23615-DB RFA No. 1071 of 2023

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THIS RFA, COMING ON FOR ADMISSION , THIS DAY, P.S.DINESH KUMAR, J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the defendant is directed against the judgment and decree dated October 19, 2022 in O.S. No. 79/2022 passed by the Senior Civil and JMFC, Gundlupet, decreeing the suit for specific performance.

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For the sake of convenience, parties shall be referred as per their status before the Trial Court.

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Plaintiff’s case is, defendant is the absolute owner

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of the suit property. An ‘agreement to sell’ was executed and registered on 12.12.2018 by the defendant agreeing to sell the suit property in favour of the plaintiff for a consideration of Rs.20,00,000/-. An amount of Rs.18,00,000/- was paid as advance sale consideration and

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it was mutually agreed that the remaining consideration amount would be paid within six months from the date of registration of agreement.

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3 - NC: 2023:KHC:23615-DB RFA No. 1071 of 2023

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Plaintiff demanded for execution of sale deed by causing legal notices dated 08.05.2019 and 20.11.2021. The defendant did not accede to plaintiff’s request. Hence, plaintiff has bought the instant suit for specific performance of the agreement.

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After receipt of summons, defendant appeared

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through his Advocate, but did not file the written statement. The Trial Court has framed the following points for consideration:

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1. Whether plaintiff proves that, defendant has agreed to sell the suit properties for sale consideration amount of Rs.20,00,000/-, received advance amount of Rs.18,00,000/- and executed registered agreement of sale dated 13.12.2018?

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2. Whether plaintiff proves that, he was always ready and willing to perform his part of contract?

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3. Whether plaintiff entitled for relief of Specific performance contract?

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4. What order or decree?

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On behalf of the plaintiff, two witnesses were

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examined as P.W.1 and P.W.2 and Exs. P1 to P16 marked.

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NC: 2023:KHC:23615-DB RFA No. 1071 of 2023

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Answering points No. 1 to 3 in the affirmative, the Trial Court has decreed the suit.

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Heard Shri.Nanjundswamy, learned Advocate for

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the appellant-defendant and Shri.Madhusudhan, learned Advocate for the respondent-plaintiff.

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Shri. Nanjundswamy praying to allow the appeal

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submitted that;

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the defendant entered appearance on 23.12.2021. The case was adjourned to 22.01.2022. Thereafter, due to Covid-19

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pandemic, Courts did not function. Defendant was bed ridden for more than eleven months after suffering an injury in April 2022;

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plaintiff’s witnesses were examined on 27.09.2022. Without giving an opportunity to

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the defendant to cross-examine, the case was posted for arguments and ex-parte judgment has been passed against the defendant;

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NC: 2023:KHC:23615-DB RFA No. 1071 of 2023

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defendant learnt about the ex-parte decree only when the notice in execution

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proceedings was received;

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plaintiff has not proved payment of Rs. 18,00,000/as advance sale

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consideration, as averred in the plaint;

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no independent witnesses have been examined;

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defendant has neither agreed to sell the suit property to the plaintiff nor has received Rs. 18,00,000/- from plaintiff;

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With above submissions, he prayed to consider this

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appeal and set-aside the ex-parte judgment and decree.

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Shri. Madhusudhan for respondent argued in

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support of the impugned judgment and decree; and submitted that:

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major part of sale consideration amount has been paid by the plaintiff;

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6 - NC: 2023:KHC:23615-DB RFA No. 1071 of 2023

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plaintiff was always ready and willing to perform his part of the contract. He has demanded execution of sale deed on several occasions and also caused two legal notices;

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defendant has not made out any case for interference in this appeal.

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With the above submissions, he prayed for dismissal of this appeal.

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We have heard learned Advocates on both sides and perused the records.

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It is not in dispute that defendant had appeared through her Advocate and the case was posted to 22.01.2022. In this appeal, the cause shown by the defendant for not filing the written statement and effectively defending the suit is that she had suffered an injury and recovered only in the month of March, 2023.

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The suit is one for specific performance and the

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suit property is a piece of agricultural land measuring 2

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NC: 2023:KHC:23615-DB RFA No. 1071 of 2023

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acres 29 guntas. Defendant is a lady and residing in a village.

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In our considered view, the cause shown for not effectively defending the suit is plausible and sufficient. The defendant deserves one opportunity to defend her cause.

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Hence the following:

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ORDER

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i) Appeal is allowed ;

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ii) judgment and decree passed in O.S. No79/2021 is set-aside and the case is remanded to the Trial Court for fresh trial from the stage of filing of written statement;

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iii) parties shall appear without notice on 02.08.2023;

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iv) the defendant shall pay cost of Rs.20,000/to the plaintiff;

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8 - NC: 2023:KHC:23615-DB RFA No. 1071 of 2023

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v) court-fee paid in this appeal shall be

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refunded in accordance with law.

Sd/JUDGE

Sd/JUDGE

SPS

List No.: 1 Sl No.: 53

Smt. Kalashree v. Sri. P. Rangappashetty

Case brief

What is this about?

What did the court decide?

Smt. Kalashree v. Sri. P. Rangappashetty

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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