Remanded

Sajeeda Begum v. Smt Saraswathamma

Karnataka HC15 Dec 2023RSA/1917/2012

Case brief

AI extract

What is this about?

In this second appeal, the High Court held that the First Appellate Court violated Order XLI Rule 31 of CPC by failing to frame points for determination, assign reasons, or re-appreciate evidence. The impugned judgment was set aside, and the matter was remitted to the First Appellate Court for a fresh hearing.

What did the court decide?

The judgment and decree of the First Appellate Court were set aside, and the matter was remitted to reconsider the appeal afresh.

Sajeeda Begum Vs Smt Saraswathamma — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:45758 RSA No. 1917 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1917 OF 2012 (SP)

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BETWEEN:

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SAJEEDA BEGUM

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W/O ABDUL WAHAB, AGED ABOUT 61 YEARS,

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MAHAMAD JAMEEL

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S/O ABDUL WAHAB, AGED ABOUT 39 YEARS, BOTH ARE R/O AKKIRAMPURA, HOLAVANAHALLI HOBLI, KORTEGERE TALUK.

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…APPELLANTS

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(BY SRI. K. N. NITHISH, ADVOCATE)

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AND:

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SMT. SARASWATHAMMA SINCE DEAD BY LRS:

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(a) RAVIKUMAR S/O GURUSIDDAIAH, AGED ABOUT 30 YEARS, 1175, 7^th MAIN, TRIVENI ROAD, 2^nd CROSS, KAMALA NEHRU EXTENSION, YESHWANTHAPURA, BANGALORE - 560 022.

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(b) HEMANTH S/O GURUSIDDAIAH, AGED ABOUT 24 YEARS,

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NC: 2023:KHC:45758 RSA No. 1917 of 2012

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1175, 7th MAIN, TRIVENI ROAD,

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2^nd CROSS, KAMALA NEHRU EXTENSION, YESHWANTHAPURA, BANGALORE - 560 022.

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S/O GURUSIDDAIAH, AGED ABOUT 27 YEARS, 1175, 7^th MAIN, TRIVENI ROAD, 2^nd CROSS, KAMALA NEHRU EXTENSION, YESHWANTHAPURA, BANGALORE - 560 022.

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…RESPONDENTS

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(BY SRI. A.V.GANGADHARAPPA, ADVOCATE FOR R1(A-C) (AVG ASSOCIATES), VIDE ORDER DATED 7/1/2015, NOTICE IS HELD SUFFICIENT IN R/O R1(B) & R1(C) )

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 20.6.2012 PASSED IN R.A.NO.65/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-V, MADHUGIRI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 22.12.2009 PASSED IN OS.NO.96/2006 ON THE FILE OF ADDITIONAL CITY CIVIL (SR.DN.) & JMFC,MADHUGIRI.

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

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JUDGMENT

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This second appeal is filed challenging the judgment dated 20.06.2012 passed in R.A.No.65/2010 by the Fast Track Court-V, Madhugiri.

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For the sake of convenience, parties are referred to as per their ranking before the Trial Court. The

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3 - NC: 2023:KHC:45758 RSA No. 1917 of 2012

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appellants are the plaintiffs and respondents are the LRs of the deceased-defendant.

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiffs filed a suit for specific performance of contract against the defendant seeking a direction to the defendant to execute a registered sale deed as per the terms and conditions of agreements of sale dated 15.07.2006. It is the case of the plaintiffs that the defendant is the absolute owner of the suit schedule properties. The defendant agreed to sell the suit schedule properties for consideration of Rs.1,66,000/and Rs.1,06,000/- and defendant executed two separate agreements of sale in favour of the plaintiffs on 15.07.2006 and accordingly, the plaintiffs paid a sum of Rs.1,00,000/- as an advance amount. On 19.10.2006, the defendant demanded for enhancement of consideration amount and consideration amount was enhanced by another Rs.35,000/- and it was fixed at Rs.3,10,000/- for

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4 - NC: 2023:KHC:45758 RSA No. 1917 of 2012

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both the lands and the defendant received another sum of Rs.75,000/-. Thereafter, the plaintiffs approached the defendant and requested to execute a registered sale deed, but the defendant did not executed the registered sale deed. The plaintiffs got issued a legal notice on 23.11.2006 calling upon the defendant to receive the balance consideration amount and to execute a registered sale deed. The said notice was served on the defendant, the defendant replied to the legal notice. The defendant denied to execute a registered sale deed and attempted to alienate the suit properties to the strangers for higher rate

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to get wrongful gain. Hence, cause of action arose for the plaintiffs to file suit for specific performance of contract.

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The defendant filed a written statement denying

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the execution of the agreements of sale and contended that the said transaction is the loan transaction and denied the averments made in the plaint. It is contended that the suit schedule properties are the ancestral properties of the defendant and her children and it is contended that the

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plaintiffs have obtained her signature by playing a fraud and created the agreements of sale. Hence, prayed to dismiss the suit.

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The Trial Court on the basis of the pleadings of

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the parties, framed the following issues:

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"1. Whether the plaintiffs prove that the defendant agreed to sell the item No.1 of the schedule property for Rs.1,66,000/- on 15-7-2006 and received the advance amount of Rs.50.000/agreeing to execute the registered sale deed after receiving the balance amount of Rs.1,16,000/-?

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2. Whether the plaintiffs prove that they were ready and willing to perform their part of the contract?

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3. Whether the defendant proves that the schedule properties are the ancestral joint family properties of her deceased husband and she along with her sons in joint possession and enjoyment of the same as absolute owner?

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4. Whether the defendant proves that the suit is barred under Sec.20 of the Specific Relief Act?

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5. Whether the plaintiffs are entitle for reliefs sought in the suit?

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6. What order or decree?"

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The plaintiffs examined themselves as P.W.1

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and P.W.2 and examined 3 witnesses as P.W.3 to P.W.5 and got marked 5 documents as Exs.P.1 to P.5. The

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defendant examined herself as D.W.1 and no documents are marked on behalf of the defendant.

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The Trial Court on the assessment of oral and documentary evidence, answered issue Nos.1, 2, 5 in the affirmative, issue Nos.3 and 4 in the negative and issue No.6 as per the final order. Consequently, the Trial Court decreed the suit of the plaintiffs with cost and it is ordered and directed the defendant to execute a registered sale deed in favour of plaintiffs, totally receiving the balance consideration of Rs.1,35,000/- from the plaintiffs within a period of 3 months and further it is also ordered that in case the defendant fails to execute a registered sale deed as directed above after the expiry of 3 months, the plaintiffs are at liberty to apply for appointment of Court

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7 - NC: 2023:KHC:45758 RSA No. 1917 of 2012

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Commissioner for the purpose of execution of the sale deeds in their favour.

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The defendant aggrieved by the judgment and decree passed by the Trial Court preferred an appeal in R.A.No.65/2010 on the file of Fast Track Court-V, Madhugiri.

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The First Appellate Court after hearing the parties, framed the following points for consideration:

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"1. Whether the appellant/defendant has made out bonafied grounds to interfere in the judgment of the lower court that the lower court has not properly appreciated the documentary and oral evidence and the suit is liable to be dismissed?

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2. What order?"

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The First Appellate Court on reassessment of

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oral and documentary evidence answered point No.1 in the affirmative and point No.2 as per the final order. Consequently, the First Appellate Court allowed the appeal and dismissed the suit for specific performance of contract

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and decreed the suit for an alternative prayer i.e., the defendant is directed to repay the amount of Rs.1,75,000/- to the plaintiff No.1 with a simple interest at the rate of 6% per annum from the date of the suit within three months from the date of the said order. The plaintiffs aggrieved by the judgment and decree passed by the First Appellate Court has filed this second appeal.

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This Court admitted the appeal on the following substantial question of law:

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"Whether the plaintiff proves that the judgment and decree passed by the First Appellate Court is not in accordance with Order XLI Rule 31 of CPC."

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Heard the learned counsel for the plaintiffs and also learned counsel for the defendant.

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Learned counsel for the plaintiffs submits that except extracting the deposition of witnesses and referring to the exhibits, the First Appellate Court has not assigned any reasons. He submits that the impugned judgment

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9 - NC: 2023:KHC:45758 RSA No. 1917 of 2012

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passed by the First Appellate Court is in violation of Order XLI Rule 31 of the CPC and he submits that the First Appellate Court except framing point No.1 has not answered the issues framed by the Trial Court. He submits that the appeal under Section 96 of the CPC is the last fact finding of the Court. The First Appellate Court is required to re-appreciate the entire evidence on record and also required to frame points for consideration and answer all the issues framed by the Trial Court. He submits that the First Appellate Court has not applied its mind while passing the impugned judgment. Hence, on this ground, he prays to allow the appeal and remit the matter to the First Appellate Court to reconsider the appeal afresh.

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Per contra , learned counsel for the defendant supports the impugned judgment and he submits that the First Appellate Court after re-appreciating the material on record was justified in passing the impugned judgment. Hence, on this ground, he prays to dismiss the appeal.

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NC: 2023:KHC:45758 RSA No. 1917 of 2012

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10 -

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Perused the records and considered the

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submission of the learned counsel for the parties.

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Substantial question of law: The plaintiff

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has filed a suit for specific performance of contract against

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the defendant contending that the defendant is the absolute owner of the suit schedule properties and the defendant agreed to sell the suit schedule properties in favour of the plaintiffs for total consideration of Rs.3,10,000/- and accordingly, the plaintiffs have paid a sum of Rs.1,75,000/- towards part consideration amount and the remaining consideration amount was agreed to be paid within three months from the date of agreements of sale. The plaintiffs were ready and willing to perform their part of contract. The plaintiffs requested the defendant to execute the registered sale deed but the defendant did not execute the registered sale deed. The plaintiffs got issued a legal notice calling upon the defendant to receive the balance consideration amount to execute registered sale

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11 - NC: 2023:KHC:45758 RSA No. 1917 of 2012

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deeds. The defendant replied to the legal notice denying

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the execution of the agreements of sale.

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17 . The plaintiffs in order to prove their case, examined themselves as P.W.1 and P.W.2 and examined three witnesses as P.W.3 to P.W.5 and produced 5 documents as Ex.P.1 to P.5. Ex.P.1 and Ex.P.5 are the agreements of sale executed by the defendant in favour of plaintiffs; Ex.P.2 is the RTC extract; Ex.P.3 is the legal notice got issued by the plaintiffs to the defendant calling upon the defendant to receive the balance consideration amount and to execute the registered sale deeds; Ex.P.4 is the postal receipts. In rebuttal, the defendant examined herself as D.W.1 but no documents were marked.

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From the perusal of the judgment passed by the First Appellate Court, the First Appellate Court has not assigned any reasons. Without assigning the reasons, the First Appellate Court dismissed the suit of the plaintiffs. The first appeal under Section 96 of CPC is a continuation of the suit and it is incumbent upon the First Appellate

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Court to reassess the entire evidence on record and has to follow the guidelines provided under Order XLI Rule 31 of the CPC while deciding the appeal. The right of appeal, under Section 96 of CPC carries with it a right of rehearing on law as well as on fact, unless the statute conferring a right of appeal, limits the re-hearing in some way as had been done in second appeal arising under Section 100 of the CPC. The First appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial Court are open for re-consideration. The First Appellate Court is required to address itself to all the issues and decide the case by giving reasons. The Court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence oral as well as documentary, led by the parties. The judgment of the First Appellate Court must display conscious application of mind and record findings supported by reasons on all issues and contention.

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A First appeal under Section 96 of the CPC is entirely different from a second appeal under Section 100 of the CPC. Section 100 of the CPC expressly bars the second appeal unless a question of law is involved in a case and the said question of law so involved is substantial in nature.

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Order XLI Rule 31 of the CPC, reads as under:

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" Contents, date and signature of judgment. -The judgment of the Appellate Court shall be in writing and shall state-

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(a) the points for determination;

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(b) the decision thereon;

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(c) the reasons for the decision; and

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(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled,

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and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

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It is clear from the above provisions that the

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judgment of the First Appellate Court has to set out points

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for determination, record the decision thereon and give its

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NC: 2023:KHC:45758 RSA No. 1917 of 2012

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own reasons. Non observance of this requirement leads to infirmity in the judgment of the First Appellate Court. Keeping in mind the above principles, I have examined the judgment passed by the First Appellate Court. The judgment and decree passed by the First Appellate Court is in violation of Order XLI Rule 31 of the C.P.C. The First Appellate Court being a final fact finding Court is required to re-appreciate the material on record and answer all the issues framed by the trial Court.

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From the perusal of the judgment passed by the First Appellate Court, the First Appellate Court has not framed the points for determination properly and further the First Appellate Court has not assigned any reasons for reversing the judgment passed by the Trial Court. Further, the appeal under Section 96 of the CPC is that the First Appellate Court is required to re-appreciate the entire evidence and answer all the issues framed by the Trial Court and assign reasons. Further, the impugned judgment is not in accordance with Order XLI Rule 31 of

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15 -

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NC: 2023:KHC:45758 RSA No. 1917 of 2012

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CPC. Hence, on this ground, the impugned judgment is liable to be set aside. Hence, in view of the above discussion, I answer substantial question of law in the affirmative.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed .

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The judgment and decree passed the First Appellate Court in R.A.No.65/2010 dated 20.06.2012 is set aside.

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The matter is remitted to the First Appellate Court.

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The First Appellate Court is directed to consider the appeal afresh and pass appropriate judgment in accordance with Order XLI Rule 31 of CPC.

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All the contentions of the parties are kept open.

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This Court has not made any adjudication on the merits in issue.

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NC: 2023:KHC:45758 RSA No. 1917 of 2012

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Parties are directed to appear before the First

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Appellate Court on 11.01.2024.

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Office is directed to transmit the records to the First Appellate Court forthwith.

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Office is directed to refund the court fee as per provision under Section 64 of the Karnataka Court fees and Suits Valuation Act, 1958 paid on the memorandum of appeal..

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In view of disposal of the main appeal, pending I.A.No.2/2013 does not survive for consideration and the

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same is disposed of.

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Sd/JUDGE

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GBB List No.: 1 Sl No.: 26 CT:SK

Sajeeda Begum v. Smt Saraswathamma

Case brief

What is this about?

What did the court decide?

Sajeeda Begum v. Smt Saraswathamma

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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