Allowed

Smt Yellamma v. Smt Jyothamma

Karnataka HC4 Dec 2023RFA/137/2022

Case brief

AI extract

What is this about?

The High Court allowed an appeal under Section 96 CPC against a specific performance decree. Due to alleged covid-19 restrictions preventing the appellant from cross-examining witnesses or presenting evidence, the Court set aside the trial court's decree, remanded the matter for fresh consideration, and reserved liberty to examine witnesses.

What did the court decide?

The impugned judgment and decree were set aside. The matter was remitted to the Trial Court for reconsideration within nine months, with the appellant granted liberty to cross-examine witnesses and ad

Smt Yellamma Vs Smt Jyothamma — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC:43641 RFA No. 137 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 137 OF 2022 (SP)

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BETWEEN:

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SMT YELLAMMA W/O PARASHURAMAIAH AGED 73 YEARS, R/AT NO.74, 12^TH CROSS, 15^TH MAIN ROAD, NEAR VIT COLLEGE, ARALKATTE, J.P.NAGAR, 2^ND STAGE, BENGALURU-78.

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…APPELLANT

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(BY SRI. RAMESH ADITHYA, ADVOCATE)

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AND:

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SMT JYOTHAMMA W/O LATE C.VENKATASWAMY AGED 77 YEARS, CORPORATION QUARTERS, BARLIE STREET, BANGALORE.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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…RESPONDENT

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(BY SRI. ARUN K S.,ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED: 10.12.2020 PASSED IN OS.NO.1724/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, BANGALORE (RURAL) DISTRICT, BANGALORE, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

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THIS APPEAL, COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC:43641 RFA No. 137 of 2022

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JUDGMENT

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This appeal by the defendant in O.S.No.1724/2013 is directed against the impugned judgment and decree dated 10.12.2020 passed by the Principal Senior Civil Judge, Bangalore Rural District, Bangalore whereby the said suit filed by the respondent – plaintiff against the appellant – defendant for specific performance of an alleged Agreement of sale dated 06.02.2008 in relation to the suit schedule immovable property was decreed by the Trial Court in favour of the respondent against appellant – defendant.

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Heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.

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The material on record discloses that the respondent – plaintiff instituted the aforesaid suit for specific performance of the aforesaid Sale Agreement and other reliefs.

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In the said suit, appellant – defendant entered appearance and filed her written statement pursuant to which the Trial Court framed the following issues:

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NC: 2023:KHC:43641 RFA No. 137 of 2022

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“1. Whether the plaintiff proves the agreement of sale dated 06.02.2008 and payment of advance sale consideration of Rs.9,50,000/- to the defendant?

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2. Whether the plaintiff further proves that she was always ready and willing to perform her part of contract?

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3. Whether the plaintiff is entitled for suit reliefs?

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4. To what decree or order?”

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On behalf of the plaintiff, three witnesses PW-1 to 3 were

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marked and documentary evidence at Ex.P1 to P13 were marked.

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However, the appellant – defendant neither crossexamined PW-1 nor adduced any defence evidence and Trial Court proceeded to pass the impugned judgment and decree in favour of the respondent – plaintiff against the appellant – defendant whose before this Court by way of the present appeal.

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In addition to re-iterating the various contentions urged in the appeal and referring to the material on record, learned counsel for the appellant submits that on account of the prevailing Covid-19 pandemic, it was not possible for the appellant who is the senior citizen to contact her counsel and give him necessary instructions to cross-examine PW-1 to 3 and also to adduce oral and documentary evidence in support of her defence.

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4 - NC: 2023:KHC:43641 RFA No. 137 of 2022

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It is submitted that the inability and omission on the part of

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the appellant to cross-examine PW-1 to 3 and also to adduce defence evidence was due to bonafide reasons, un-avoidable circumstances and sufficient cause and as such, it is necessary to provide one more opportunity in favour of the appellant to crossexamine PW-1 to 3 and adduce defence evidence and contest the suit on merits, failing which the appellant would be put to irreparable injury and hardship and justice to suffer.

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Per contra, the learned counsel for the respondent – plaintiff would support impugned judgment and decree and submit that there is no merit in the appeal and the same is liable to be dismissed.

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I have given my anxious consideration and perused the material on record.

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A perusal of material on record will indicate that the Trial Court proceeded to decree the suit in favour of respondent – plaintiff on the sole ground that oral and documentary evidence adduced by the respondent – plaintiff had not been challenged, impeached or controverted by way of cross-examination by the

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5 - NC: 2023:KHC:43641 RFA No. 137 of 2022

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appellant who also did not adduce any oral or documentary evidence.

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However, in the light of the specific contention of the appellant that it was not possible for her to cross-examine PW-1 to 3 and also adduce oral and documentary evidence on account of the prevailing Covid-19 pandemic, adopting a Justice oriented approach and in order to provide one more opportunity to appellant to cross-examine PW-1 to 3 and also adduce defence evidence, without expressing any opinion on merits / demerits of the rival contentions, I deem it just and appropriate to set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh within a stipulated time frame by imposing cost upon the appellant.

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In the result, I pass the following orders:

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i) Appeal is hereby allowed.

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ii) Impugned judgment and decree is hereby set aside.

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iii) The matter is remitted back to the Trial Court for reconsideration afresh in accordance with law.

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NC: 2023:KHC:43641 RFA No. 137 of 2022

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iv) Liberty is reserved in favour of appellant to crossexamine PW-1 to 3 as well as any other witnesses to be examined on behalf of the respondent – plaintiff.

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v) Liberty is also reserved in favour of appellant to adduce oral or documentary evidence in support of her defence.

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vi) All rival contentions on all aspects of the matter are

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kept open to be decided by the Trial Court and no opinion is expressed on the same.

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vii) In view of the joint submission made by the learned counsel for the appellant and learned counsel for the respondent, the registry of this Court is directed to disburse / release a sum of Rs.50,000 out of the total Court fee of Rs.64,650/- paid on the memorandum of appeal in favour of the appellant and also release / disburse the remaining sum of Rs.14,650 paid towards Court fee on the memorandum of appeal in favour of the respondent towards the cost of the present order.

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viii) Both parties undertake to appear before the Trial Court on 21.12.2023 without awaiting any further notice.

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NC: 2023:KHC:43641 RFA No. 137 of 2022

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ix) Trial Court is directed to dispose of the suit within a period of nine months from the date of receipt of a copy of this order.

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Sd/JUDGE

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DHA List No.: 1 Sl No.: 31

Smt Yellamma v. Smt Jyothamma

Case brief

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Smt Yellamma v. Smt Jyothamma

Case brief

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