Dismissed

A B Radha v. M K Ramegowda

Karnataka HC5 Dec 2023RSA/1203/2016

Case brief

AI extract

What is this about?

This court dismissed the regular second appeal filed by an unsuccessful plaintiff in a suit for specific performance. The bench upheld the concurrent findings of lower courts that dismissed the suit for failure to prove the alleged agreement to sell and receipt of earnest money, finding no infirmities or perversities in the lower judgments.

What did the court decide?

Appeal dismissed; pending applications also dismissed.

A B Radha Vs M K Ramegowda — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:43798 RSA No. 1203 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF DECEMBER, 2023

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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.1203 OF 2016 (SP)

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BETWEEN:

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A B RADHA W/O LATE BELLIYAPPA AGED ABOUT 52 YEARS R/O DOOR NO.18, EWS 3RD MAIN ROAD 1ST PHASE, HEBBAL MYSURU - 571114

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…APPELLANT

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(BY SRI.S N BHAT, ADVOCATE)

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AND:

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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M.K.RAMEGOWDA S/O LATE KENGEGOWDA AGED ABOUT 54 YEARS R/AT DOOR NO.1082 SAINIK COMPLEX NEAR HASANAMBHA B.ED COLLEGE B.ED COLLEGE ROAD VIDYANAGARA HASSAN - 573201

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…RESPONDENT

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(SERVED - UNREPRESENTED)

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NC: 2023:KHC:43798 RSA No. 1203 of 2016

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THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.04.2016 PASSED IN R.A.NO.92/2014 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE,

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AND JMFC, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.04.2014 PASSED IN O.S NO.79/2012 ON THE FILE OF THE II ADDL.CIVIL JUDGE & JMFC, HASSAN AND ETC.

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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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The captioned second appeal is filed by unsuccessful plaintiff, wherein plaintiff's suit for specific performance of contract is dismissed by both the Courts by recording a finding that plaintiff has failed to substantiate and prove the alleged agreement to sell dated 22.06.2002 and payment of Rs.30,000/- as earnest money to the defendant.

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For the sake of brevity, the parties are

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referred as they are ranked before the Trial Court.

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3 - NC: 2023:KHC:43798 RSA No. 1203 of 2016

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Brief facts leading to the case are as under;

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The plaintiff has instituted a suit for specific performance of contract in O.S.No.79/2012. The plaintiff's suit is based on the alleged agreement of sale dated 22.06.2002. The plaintiff contended that the defendant offered to sell the suit schedule property and has received advance amount of Rs.30,000/-. The plaintiff further contended that the defendant has agreed to execute the sale deed within eight years by receiving balance sale consideration of Rs.20,000/-. The present suit is filed alleging that plaintiff is always ready and willing to perform her part of contract. The defendant has committed breach of agreement and therefore, the present suit.

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The defendant on receipt of summons tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendant seriously disputed alleged advance payment of

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4 - NC: 2023:KHC:43798 RSA No. 1203 of 2016

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Rs.30,000/-. The defendant specifically pleaded that he has not executed any agreement in favour of the plaintiff. The defendant on the contrary claimed that he had availed a hand loan of Rs.30,000/- from one Devarajegowda during 2002 and the said Devarajegowda had secured signatures on the blank papers, which were offered as a security to the loan advanced by the said Devarajegowda. The defendant alleged that though Devarajegowda has received loan amount by him, he has not returned blank papers, which were offered by the defendant by way of security.

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Plaintiff and defendant to substantiate their respective claims have let in oral and documentary evidence.

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Trial Court having examined the agreement to sell marked at Ex.P.4 coupled with the witnesses examined on behalf of the plaintiff and evidence of Devarajegowda, who is examined as D.W.2, answered issue Nos.1 and 2 in

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5 - NC: 2023:KHC:43798 RSA No. 1203 of 2016

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the Negative. The Trial Court held that the plaintiff has failed to substantiate that the defendant has offered to sell the property and executed sale agreement vide Ex.P.4. While answering issue No.2 in the Negative, the Trial Court held that the plaintiff has failed to substantiate that the defendant has received an amount of Rs.30,000/- as advance amount while executing the alleged agreement. Consequently, the suit is dismissed.

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The Appellate Court being a final fact finding Authority has independently assessed the entire materials on record. The Appellate Court has culled out the evidence of D.W.2 to examine genuineness of the transaction between the plaintiff and the defendant. While examining evidence of D.W.2, the Appellate Court has taken cognizance of the fact that the plaintiff has not chosen to cross-examine D.W.2. In the evidence of D.W.2, he has acknowledged that Ex.P.4 is the blank paper, which was later handed over to him by the defendant while accepting the hand loan of Rs.30,000/-. In absence of

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6 - NC: 2023:KHC:43798 RSA No. 1203 of 2016

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cross-examination by the plaintiff, Appellate Court was of the view that plaintiff has failed to prove the alleged transaction and therefore, proceeded to dismiss the appeal. These concurrent judgments are under challenge by the unsuccessful plaintiff.

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Heard learned counsel appearing for the

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plaintiff. Perused the concurrent findings recorded by both the Courts.

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Though learned counsel appearing for the

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plaintiff would vehemently argue and persuade this Court to take cognizance of the suit agreement, I am not inclined to re-assess the entire evidence under Section 100 of CPC. The contention of the learned counsel for the plaintiff that the non-judicial stamp paper was purchased in the plaintiff's name and therefore, evidence of D.W.2 is of no consequences cannot be acceded to. It is quite strange to note that plaintiff has not chosen to crossexamine D.W.2 when there is a specific defence in the

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7 - NC: 2023:KHC:43798 RSA No. 1203 of 2016

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written statement. The defendant has specifically pleaded in the written statement that he had loan transaction with one Devarajegowda and that he had received an amount of Rs.30,000/- by way of hand loan from the said Devarajegowda. If Devarajegowda on witness summon has appeared before the Court and has tendered his evidence, the plaintiff ought to have cross-examined him when D.W.2 has specifically deposed that the stamp paper on which the agreement to sell was written was actually the stamp paper, which was offered to him by way of security.

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Therefore, contention of the learned counsel appearing for the plaintiff that stamp paper was purchased by the plaintiff and therefore, evidence of D.W.2 is of no consequence cannot be acceded to at this juncture. The defence set by the defendant stands probabilized in the light of the rebuttal evidence let in by the defendant coupled with the evidence of D.W.2. If the plaintiff has

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8 - NC: 2023:KHC:43798 RSA No. 1203 of 2016

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not chosen to cross-examine D.W.2, an adverse inference

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has to be drawn against plaintiff.

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Both the Courts referring to the recitals in the alleged suit agreement vide Ex.P.4 have concurrently held that suit agreement is not proved by the plaintiff by producing cogent evidence. Several significant details are dealt by both the Courts while discarding the suit agreement vide Ex.P.4. On examining the concurrent findings recorded by both Courts, I do not any infirmities and perversities in the judgments rendered by both the Courts.

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No substantial question of law arises for

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consideration. Accordingly, the appeal is dismissed.

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Pending applications, if any, are also dismissed.

Sd/-

JUDGE

NBM

List No.: 1 Sl No.: 5

A B Radha v. M K Ramegowda

Case brief

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A B Radha v. M K Ramegowda

Case brief

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