Allowed

T S Jagadeesh v. Panchaksharappa

Karnataka HC21 Nov 2023RFA/2066/2022

Case brief

AI extract

What is this about?

In a Regular Appeal against a decree for specific performance, the High Court set aside the judgment and remitted the matter to the Trial Court. The Court held that the Trial Court erred in proceeding to decree the suit without providing the appellants an opportunity to re-instruct counsel, after their counsel filed a retirement memo without proper service of notice.

What did the court decide?

Impugned judgment and decree set aside; matter remitted to Trial Court for fresh consideration with liberty to adduce evidence.

T S Jagadeesh Vs Panchaksharappa — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC:41853 RFA No. 2066 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 2066 OF 2022 (SP)

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BETWEEN:

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T S JAGADEESH S/O LATE T.S VEERESHAPPA ADOPTED : S/O LATE SHANKARI SANNAVEERAPPA AGED ABOUT 46 YEARS.

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T.O UMA @ BHUVANESHWARI W/O T.S. JAGADEESH AGED ABOUT 39 YEARS.

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KUMARI AISWARYA ALIAS BHARAMARAMBA T.J D/O T.S. JAGADEESH AGE ABOUT 13 YEARS SINCE MINOR REPTD BY T.S JAGADEESH

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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APPELLANT NO. 1 TO 3 ARE R/AT TYAJAVALI VILLAGE HARANAHALLI HOBLI SHIVAMOGGA TQ AND DIST.

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…APPELLANTS (BY SRI. NATARAJ G.,ADVOCATE)

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AND:

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PANCHAKSHARAPPA S/O LATE M. SIDDARAMAPPA AGED ABOUT 70 YEARS R/O: - “ KUSHALA” , NO. 150, 6^TH CROSS III PHASE, VINOBA NAGARA SHIVAMOGGA 577 201.

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…RESPONDENT

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(BY SRI. K.N. MAHABALESHWARA RAO.,ADVOCATE)

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NC: 2023:KHC:41853 RFA No. 2066 of 2022

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THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.07.2022 PASSED IN OS.NO.67/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

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

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JUDGMENT

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This appeal by the defendants in O.S.No.67/2019, is directed against the impugned judgment and decree dated 18/07/2022 passed by the I Addl. Senior Civil Judge and CGM at Shivamogga whereby the said suit filed by the respondent – plaintiff against the appellants 1 to 3 – defendants 1 to 3 for specific performance and other reliefs in relation to the suit schedule immovable property, pursuant to alleged Sale Agreement dated 12.04.2013, was decreed by the Trial Court.

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The material on record discloses that the respondent – plaintiff instituted the aforesaid suit for specific performance of alleged Sale Agreement dated 12.04.2013 and for other reliefs interalia contending that the appellants had received an advance sale consideration of Rs.8,00,000/- out of the total sale consideration of Rs.15,00,000/- and since they did not perform their part of the contract, the respondent – plaintiff was constrained to

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NC: 2023:KHC:41853 RFA No. 2066 of 2022

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institute the aforesaid existing suit against the appellants. The appellant No.2 – defendant No.2 filed a written statement and contested the suit by filing the written statement pursuant to which the Trial Court framed the following issues.

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“1) Whether the plaintiff proves that the defendants being the absolute owners of the suit property by agreeing to sell the suit property for the total sale consideration amount of Rs.15,00,000/- in favour of this plaintiff executed the sale agreement on 12.04.2013 wherein the 1^st defendant as a natural guardian signed the document after receipt of the advance sale agreement amount of Rs.3,50,000/- before the witnesses?

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2) Whether the plaintiff proves that the defendants under the sale agreement have adjusted the earlier loan amount of Rs.4,50,000/- payable by the 1^st defendant in favour of this plaintiff, executed the sale agreement by accepting and acknowledging the total amount of Rs.8,000/under the sale agreement?

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3) Whether the plaintiff proves that the defendants have undertaken to execute the registered sale deed within 6 years from the date of sale agreement after receiving the balance sale consideration amount in his favour in the sale agreement dated 12.04.2013?

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4) Whether the defendant No.2 proves that the suit is bad for non joinder of necessary party as contended in para 9 of written statement?

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5) Whether the plaintiff proves that he is always ready and willing to perform his part of the contract as per the terms of the sale agreement and even in spite of his best efforts to get the registered sale deed, the defendants have failed to perform their part of the contract as per the terms of the sale agreement?

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6) Whether the plaintiff is entitled for the specific performance of contract as prayed?

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NC: 2023:KHC:41853 RFA No. 2066 of 2022

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7) Whether the plaintiff is entitled for alternative relief of refund of advance sale consideration amount of Rs.8,00,000/- together with interest at the rate of 18% p.a.,?

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8) What order of decree?”

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On behalf of the respondent – plaintiff, he examined himself as PW1 and two witnesses as PW.2 and PW.3. The respondent – plaintiff produced documentary evidence at Ex.P1 to P38 on his behalf. During the course of cross examination of PW.1, a Birth Certificate was confronted to PW.1 and marked as Ex.D1 filed appeal in advance. It is seen that through PW.1 remained present and tendered himself for cross examination, the appellants did not complete the cross examination of PW.1, so also the appellants did not adduce any oral or documentary evidence on their behalf. Similarly, the appellants also did not cross examine PW.2 and 3 examined on behalf of the respondent – plaintiff.

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In these circumstances, the Trial Court proceeded to pass the impugned judgment and decree in favour of the respondent – plaintiff against the appellants – defendants who are before this Court by way of the present appeal.

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NC: 2023:KHC:41853 RFA No. 2066 of 2022

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Heard learned counsel for the appellants and learned counsel for the respondent - plaintiff and perused the material on record.

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In addition to reiterating the various contentions urged in the memorandum of appeal and referring to the material on record, learned counsel for the appellants submits that during the pendency of the suit before the Trial Court, learned counsel appearing on behalf of the appellants filed the Retirement memo pursuant to which, the Trial Court on 23.05.2022 passed the following order:

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“PW3 filed his examination in chief affidavit. No representation from defendants. Hence Cross of PW3 taken as nil.

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In term advocate for D.1 and 3 filed retirement memo along with notice dated 21.05.2022. The notice is issued on 21.05.2022 but there is no material before the court to show that, the said notice is delivered to D.1 and D.3. Hence before granting permission for retirement advocate for D.1 and 3 is hereby directed to furnish postal acknowledgment to show that notice issued by him is served to the defendant.

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Plaintiff side evidence closed. To furnish acknowledgment by the counsel for defendant. Call on 31.05.2022”.

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It is submitted that despite having directed the learned counsel to produce the proof for having served his retirement notice upon the appellants, the learned counsel neither intimated

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6 - NC: 2023:KHC:41853 RFA No. 2066 of 2022

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the appellants about his retirement nor proceeded further in the matter and the Trial Court committed an error in taking the further the cross examination of PW.1 and the cross examination of PW.2 and 3 by the appellants as nil and proceeding to decree the suit without recording the evidence of the appellants – defendants.

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Under these circumstances, it is submitted that non providing of an opportunity in favour of the appellants – defendants on ground of the non communication by the learned counsel, has resulted in the impugned judgment and decree, warranting the interference by this Court in the present appeal by setting aside the impugned judgment and decree and remitting the matter back to the Trial Court for reconsideration afresh in accordance with law, by providing one more opportunity to the appellants to engage different counsel and proceed to contest the matter.

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

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

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NC: 2023:KHC:41853 RFA No. 2066 of 2022

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As rightly contended by the learned counsel of the appellants, a perusal of the order sheet contending the Order dated 23.05.2022 maintained by the Trial Court will indicate that the Trial Court has stated that a memo of retirement was filed on behalf of the appellants – defendants. The Trial Court has further instructed the learned counsel to furnish postal acknowledgement to show that the notice issued by him was served upon the appellants - defendants; However, on 31.05.2022, the Trial Court has noticed the absence of the learned counsel for the defendants and despite the learned counsel not furnishing the acknowledgement, the Trial Court has proceeded further and decreed the suit without either issuing the Court notice to the appellants or intimating the appellants – defendants about the retirement of their counsel.

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Under these circumstances, in the absence of the postal acknowledgement evidencing service of retirement notice upon the defendants and since the learned counsel has not been permitted to retire by the Trial Court which also did not intimate appellants and nor notify them despite the learned counsel remaining absent before the Trial Court, I am of the view that the Trial Court erred in

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8 - NC: 2023:KHC:41853 RFA No. 2066 of 2022

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proceeding further in the matter in the absence of the appellants and their counsel.

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It is therefore clear that sufficient and reasonable opportunity has not been provided by the Trial Court to the appellants – plaintiffs who were unrepresented and were not aware of the retirement of their learned counsel and consequently, I am of the view that one more opportunity is to be provided in favour of the appellants by setting aside the impugned judgment and decree and remitting the matter back to the Trial Court for reconsideration afresh in accordance with law.

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In the result I pass the following:

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ORDERS

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i) The appeal is hereby allowed

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ii) Impugned judgment and decree passed by the Trial Court is hereby set aside.

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

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iv) Liberty is reserved in favour of the appellant to cross examine PW.1, 2 and 3 as well as any other witnesses to be examined by the respondent – plaintiff.

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NC: 2023:KHC:41853 RFA No. 2066 of 2022

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v) Liberty also reserved in favour of the appellants to adduce

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oral and documentary evidence on their behalf.

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vi) Liberty is also reserved in favour of the respondent –

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plaintiff to cross examine the appellant and their witnesses and also to adduce further oral and documentary evidence if he so desires.

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vii) Party undertake to appear before the Trial Court without awaiting further notice on 18.12.2023.

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viii) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.

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ix) The Trial Court is directed to dispose of the suit as expeditiously as possible and at any rate within a period of six months from 18.12.2023.

Sd/-

JUDGE

DHA

List No.: 1 Sl No.: 41

T S Jagadeesh v. Panchaksharappa

Case brief

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T S Jagadeesh v. Panchaksharappa

Case brief

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