Allowed

Dasharatha v. G.Dasegowda

Karnataka HC22 Feb 2023RSA/400/2017

Case brief

AI extract

What is this about?

The High Court allowed an appeal and set aside decrees from the Trial Court and First Appellate Court. It found that parties were not given an opportunity to contest the original suit. The matter is remanded to the Trial Court for a fresh hearing on merits with an opportunity to file a written statement.

What did the court decide?

Set aside impugned decrees; remanded to Trial Court for fresh consideration with opportunity to file written statement; deposit of costs Rs. 1,00,000/-; suit disposed of within six months.

Dasharatha Vs G.Dasegowda — Specific Performance | Karnataka HC (2023)

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RSA No. 400 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.400 OF 2017 (SP)

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BETWEEN:

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DASHARATHA

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DEAD BY HIS LRS,

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1. SMT NAGARATHNAMMA, W/O LATE DASSHRATHA, AGED ABOUT 68 YEARS, R/O 3RD CROSS, INDIRA COLONY, ARAKESHWARA NAGAR, GUTHALU, MANDYA-571401

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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G.D. NARAYANASWAMY S/O LATE DASHARATHA, AGED ABOUT 51 YEARS, R/O 6TH CROSS, SHUKAR CHANNAIAH LAYOUT, GUTHALU, MANDYA-571401

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G D SRIKANTHA S/O LATE DASHARATHA, AGED ABOUT 40 YEARS, R/O 3RD CROSS, INDIRA COLONY, IN FRONT OF KRISHNAMURTHY CANE CRUSHAER, ARAKESHWARA NAGAR, MANDYA-571401

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G D DASEGOWDA S/O LATE DASHARATHA,

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RSA No. 400 of 2017

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AGED ABOUT 38 YEARS, R/O G D BAKERY, NEAR JAYALAKSHMI TALKIES, ARAKESHWARA NAGAR, MANDYA-571401

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G D NANDISHA S/O DASHARATHA, AGED ABOUT 36 YEARS, R/O G D BAKERY, NEAR JAYALAKSHMI TALKIES, ARAKESHWARA NAGAR, MANDYA-571401

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…APPELLANTS

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(BY SRI RAJA L, ADVOCATE)

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AND :

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G.DASEGOWDA S/O LATE DYAVARATTI VENKATEGOWDA, AGED ABOUT 69 YEARS, R/O NO.1267/1, 6TH CROSS, ASHOKNAGAR, MANDYA-571401

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…RESPONDENT

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(BY SRI G S RAVISHANKAR, ADVOCATE)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 17.12.2016 PASSED IN R.A.NO.118/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANDYA AND ETC.

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THIS R.S.A. COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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RSA No. 400 of 2017

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J U D G M E N T

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Heard the learned counsel appearing for the

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respective parties.

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This appeal is filed challenging the judgment and decree passed in O.S.No.741/2010 wherein sought for the relief of specific performance of contract against the defendants and defendants have been served with the suit summons and they were placed exparte. It is the contention of the appellants counsel that when they have received the notice in the execution petition, they comes to know about passing of the judgment and decree in O.S.No.741/2010 hence, immediately they filed an appeal before the First Appellate Court in R.A.No.118/2013 and while filing the appeal there was a delay of 695 days and hence, the delay application was filed. The First Appellate Court having receiving the statement of objections posted the matter for enquiry and recorded the statement of the appellants as PW1 and PW2 and considering the evidence of witnesses, comes to the conclusion that the appellants

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RSA No. 400 of 2017

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have not been successfully explained the delay which is apparent on the basis of the plea in the first instance and the evidence offered in support of the same is not satisfactory hence, dismissed the application filed under Section 5 of the Limitation Act. Hence, the present appeal is filed before this Court.

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The counsel for the appellants would vehemently contend that the Trial Court has not justified in decreeing the suit that the plaintiff has not complied with the statutory requirements under Section 16(c) of the Specific Relief Act and also the Trial Court has not right in justifying in decreed the suit of the plaintiff without examined the conduct of the plaintiff, though the evidence on records clearly goes to show that legal notice was issued on 14.11.2007 and suit was filed on 16.11.2010 and the suit of the plaintiff is barred by limitation and also contended that the First Appellate Court also not justified in confirming the judgment of the Trial Court without looking into the merits of the appeal and erroneously

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RSA No. 400 of 2017

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comes to the conclusion that delay has not been properly explained and hence, this Court has to frame the substantial question of law. This Court while admitting the appeal, vide order dated 26.02.2019, framed the following substantial question of law:

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Whether First Appellate Court was justified in dismissing the application for condonation of delay without considering the case of the appellants regarding fraud and

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misrepresentation alleged by them?

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Heard the arguments of the learned counsel for

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the appellants and the counsel submits that when the suit was filed before the Trial Court, notice was served and father of the respondent herein and he stated that he is not going to continue the suit and on the said statement, the appellants have believed the words of the father of the respondent and they were not aware of the decree passed in the original suit and when they comes to know about the decree passed and execution petition was filed,

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RSA No. 400 of 2017

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immediately they filed an appeal and the First Appellate Court has not accepted the grounds urged in the affidavit filed in support of condonation of delay application though considered the evidence of PW1 and PW2 and committed an error coming to the conclusion that the reasons assigned in the affidavit are not satisfactory. The counsel would submits that when the matter was not considered by the Trial Court on merits and also the reason narrated in the appeal and also in the application also not considered and apart from that total 4 properties were included in the sale agreement and only loan transaction was taken place between the appellants and the respondent and only received an amount of Rs.1,00,000/and not executed any sale agreement and the same was created, the matter has to be remanded to the Trial Court by giving an opportunity to file the written statement and time bound direction may be given to consider the matter on merits.

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RSA No. 400 of 2017

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5. Per contra, the counsel for the respondent

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would submits that the sale agreement was executed by the appellants is a registered sale agreement and also out of sale consideration of Rs.2,00,000/-, Rs.1,85,000/- was paid and remaining amount was payable at the time of registration and also the respondent has sent the notice but no reply was given to the said notice and now, they have come up with the false plea that the father of the respondent had assured that he is not going to pursue the matter and the reasons assigned by the application are not correct. The very contention of the appellants that they came to know about the judgment and decree only on receipt of the notice of execution petition cannot be accepted. The First Appellate Court having considered the evidence of PW1 and PW2 particularly, the admission given by PW2 that no money transaction was taken place, rightly dismissed the application filed under Section 5 of Limitation Act.

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RSA No. 400 of 2017

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6. Having considered the substantial question of

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law framed by this Court no doubt, in the application and affidavit, they have reiterated the grounds which have been urged before this Court and also the witnesses have been examined before the First Appellate Court as PW1 and PW2 and PW2 in the cross-examination, categorically admitted that prior to the sale agreement, no loan transaction or monitory transaction and only transaction in respect of the property as taken place. The evidence of PW2 is that prior to the sale agreement, there was no loan transaction or monitory transaction and only there was property transaction and admitted that the document was registered in the office of the Sub-Registrar. The main contention of the counsel for the appellants that the appellants’ father passed away and an assurance was given by the respondent’s father that he is not going to pursue the suit and this Court also framed the substantial question of law that whether there is a case of fraud as contended by the appellants and misrepresentation was made and the same has not been discussed by the First

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RSA No. 400 of 2017

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Appellate Court while passing the order and the reasons assigned in the order of the First Appellate Court are that the appellants have not satisfactorily explained the delay and in the reasons only extracted the admission of PW2 that during the cross-examination, he admitted that there was no loan transaction prior to sale transaction and the same is not in respect of loan transaction even monitory transaction and the transaction was with regard to the properties and the said admission has not been taken note of and comes to the conclusion that the evidence on record is so feeble to hold that the cause pleaded is a sufficient cause hence, no grounds are made out to condone the delay.

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Admittedly, the suit summons was served

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against the defendants who are the appellants before this Court and they have placed exparte and only the contention of the appellants that the respondent’s father has given the assurance to the father of the appellants that he is not going to pursue the suit and also it has to be

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RSA No. 400 of 2017

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noted that no material is placed before the Court that prior to the receipt of notice of execution petition, they are having the knowledge about the judgment and decree. It is also the ground of the appellants that only after receipt of notice by the executing Court, they came to know about the same and immediately, they have filed an appeal and also no dispute that the judgment and decree of the original suit was not on merits as it was an exparte decree and the First Appellate Court also dismissed the appeal only on the ground of delay and the same was also not considered on merits.

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Hence, it is appropriate to set aide the judgment of the First Appellate Court as well as the Trial Court when the parties have not led their evidence and not contested the matter before the Trial Court and an opportunity has to be given to the appellants to contest the matter and time bound direction may be given to the Trial Court to consider the matter on merits. Under such circumstances, this Court has to impose the cost on the

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RSA No. 400 of 2017

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appellants since inspite of service of notice against them they did not contest the matter and now, they have come up with the ground that the judgment and decree obtained by playing fraud on them and this Court also framed the substantial question of law with regard to whether First Appellate Court was justified in dismissing the application for condonation of delay without considering the case of the appellants regarding fraud and misrepresentation alleged by them and when this Court comes to the conclusion that an opportunity has to be given to the appellants herein, thus, the question of now considering the fraud and misrepresentation does not arise. Hence, it is appropriate to remanded the matter to the Trial Court to consider the same on merits imposing heavy cost.

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In view of the discussions made above, I pass the following:

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ORDER

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(i) The appeal is allowed.

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RSA No. 400 of 2017

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(ii) The impugned judgment and decree dated 10.11.2011 passed in O.S.No.741/2010 by the Trial Court as well as the judgment and decree dated 17.12.2016 passed R.A.No.118/2013 by the First Appellate Court are set aside.

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(iii) The matter is remanded to the Trial Court for fresh consideration by giving an opportunity to the parties.

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(iv) The appellants are directed to deposit the cost of Rs.1,00,000/- within two weeks from today and out of Rs.1,00,000/-, Rs.75,000/is payable to the respondent/plaintiff and Rs.25,000/- shall vest with the State. On deposit of cost only, the original suit shall be restored.

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(v) The appellants are directed to file the written statement before the Trial Court on the next date of hearing i.e., on 27.03.2023 and the parties are also directed to appear before the Trial Court on 27.03.2023 without expecting any notice from the Trial Court.

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(vi) The Trial Court is directed to dispose of the suit within a period of six months from today.

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RSA No. 400 of 2017

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(vii) The respective parties and counsel are directed to assist the Trial Court to dispose of the matter within the stipulated time.

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(viii) Registry is directed to transmit the records forthwith to enable the Trial Court to take up the matter on 27.03.2023.

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Sd/JUDGE

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Dasharatha v. G.Dasegowda

Case brief

What is this about?

What did the court decide?

Dasharatha v. G.Dasegowda

Case brief

What is this about?

What did the court decide?

What the court decided

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