Allowed

Smt. Janaki C N v. Smt. Susheela

Karnataka HC23 Jul 2024MSA/133/2018

Case brief

AI extract

What is this about?

Second appeal against first appellate Court's remand of a specific performance suit to allow the defendant's handwriting-expert application. The High Court held the appellate Court gave no finding on insufficiency of evidence or due diligence and wrongly ordered a full remand, set aside its decree and remanded the appeal itself for fresh consideration.

What did the court decide?

Impugned judgment and decree in R.A.no.55/2011 set aside; appeal remanded to first appellate Court for fresh consideration; parties to appear on 10.08.2024.

Smt. Janaki C N Vs Smt. Susheela — Specific Performance | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:28865 MSA No. 133 of 2018

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF JULY, 2024

¶3

BEFORE

¶4

THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS SECOND APPEAL NO. 133 OF 2018 (RO)

¶5

BETWEEN:

¶6

SMT. JANAKI C.N., D/O LATE C.H. NANJUNDAPPA, AGED ABOUT 45 YEARS, R/AT CHIKKAHONNAVALLI, HONNAVALLI HOBLI, TIPTUR TALUK 572 217.

¶7

…APPELLANT

¶8

[BY SRI K.N.SUNIL, ADVOCATE (PH)]

¶9

AND:

¶10

SMT. SUSHEELA, W/O K.N.BALAKRISHNA, AGED ABOUT 55 YEARS, R/AT NO.16, 9^TH CROSS, VEERASAGARA MAIN ROAD, MUNISWARA NILAYA, 2^ND STAGE, ATTUR, BENGALURU - 560 064.

¶11

Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

¶12

…RESPONDENT

¶13

[BY SRI SIDDHARTH P. DESAI, ADVOCATE (PH)]

¶14

MSA FILED UNDER ORDER 43 RULE 1(u) OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 15.09.2018 PASSED IN RA.NO.55/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC TIPTUR ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.06.2011 PASSED IN O.S.NO. 64/2008 ON THE FILE OF THE PRL.CIVIL JUDGE AND JMFC TIPTUR AND (C/c) OF ADDL.CIVIL JUDGE AND JMFC TIPTUR REMANDED BACK THE MATTER TO TRIAL COURT WITH A DIRECTION TO OBTAIN REPORT OF HANDWRITING EXPERT AS PER ORDER ON IA.NO.7 FILED BY THE DEFENDANT U/O 26 RULE 10 (A) OF CPC.

¶15

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶16

2 - NC: 2024:KHC:28865 MSA No. 133 of 2018

¶17

CORAM: THE HON'BLE MR JUSTICE RAVI V HOSMANI

¶18

ORAL JUDGMENT

¶19

(PER: THE HON'BLE MR JUSTICE RAVI V HOSMANI)

¶20

Challenging judgment and decree dated 15.09.2018 passed by Senior Civil Judge & JMFC., Tiptur, in R.A.no.55/2011 confirming judgment and decree dated 21.06.2011 passed by Addl. Civil Judge & JMFC., Tiptur, in O.S.no.64/2008, this appeal is filed.

¶21

Sri K.N.Sunil, learned counsel for appellant submitted, appellant was plaintiff in suit filed for specific performance of agreement of sale dated 09.08.2007, executed by respondent/defendant agreeing to sell suit schedule properties to plaintiff for total sale consideration of Rs.50,000/by receiving Rs.30,000/- as advance. It was submitted in suit, defendant had entered appearance and filed written statement denying execution of agreement of sale. Thereafter, plaintiff got himself and another witness examined as PWs 1 and 2. He got marked, original agreement of sale as Ex.P.1 and record of rights as Exs.P.2 and 3. It was submitted, respondent had duly cross-examined plaintiff witnesses and thereafter, filed I.A.no.VII under Order XXVI Rule 10-A of CPC for appointment

¶22

3 - NC: 2024:KHC:28865 MSA No. 133 of 2018

¶23

of handwriting expert to compare admitted signatures of defendant with that on agreement of sale - Ex.P.1, to determine whether it was signed by defendant or otherwise.

¶24

It was submitted, said application was allowed by trial Court, on 02.01.2010. Thereafter, trial Court directed defendant to furnish name and address of Commissioner and to deposit Commissioner's fee. It was submitted, despite innumerable opportunities, defendant failed to furnish name and address. Thereafter, he failed to deposit Commissioner's fee. In view of default, on 22.01.2011, trial Court recalled its order dated 02.01.2010 and posted matter for recording defendant's evidence. As no evidence was adduced, it was posted for arguments and thereafter impugned judgment and decree was passed. Same was assailed by defendant in R.A.no.55/2011.

¶25

It was contended, signature of defendant on Ex.P.1agreement of sale was forged and trial Court proceeded to decide suit without providing adequate opportunity to defendant to lead evidence. It was also contended, application filed by defendant under Order XXVI Rule 10-A CPC having been allowed, recalling was not justified. It was also contended,

¶26

¶27

NC: 2024:KHC:28865 MSA No. 133 of 2018

¶28

finding of trial Court on issue nos.1 and 2 was not conformity with evidence of PWs.1 and 2. And defendant having failed to take advantage of allowing I.A.no.VII, could not once again file similar application before first appellate Court (in I.As.no.3 and 4 to produce additional evidence and for appointment of Commissioner).

¶29

It was submitted, first appellate Court on consideration of said application allowed appeal setting-aside judgment and decree passed by trial Court and remanded matter back to trial Court. While giving its findings on issues no.1 and 2, insofar as IAs no.3 and 4, first appellate Court had not taken note of requirement of law for consideration of application for additional evidence. It had merely stated, additional evidence was required by defendant to substantiate her defence. It had also not given specific findings about insufficiency of evidence on record and need of additional evidence for passing judgment. Even lack of diligence on part of defendant to participate in trial and lead evidence was overlooked.

¶30

Learned counsel further contended, even if first appellate Court were to have considered I.A. for additional

¶31

5 - NC: 2024:KHC:28865 MSA No. 133 of 2018

¶32

evidence, remand of entire suit, was not justified and would be contrary to provisions of Order XLI Rule 27 of CPC. On above grounds sought for answering substantial question of law in favour of appellant and to allow appeal.

¶33

In support of his submission, learned counsel sought to rely on ratio laid down by this Court in Girish v. Shivamurthappa reported in 2001 (1) KCCR 597.

¶34

On other hand, Sri Siddarth P. Desai, learned counsel for defendant sought to oppose appeal. It was submitted, first appellate Court had taken note of facts and circumstances of case, wherein due to ill-health defendant was prevented from placing substantial evidence on record and in interest of justice and equity granted opportunity to lead additional evidence. In support, he relied on following decisions:

¶35

i) Billa Jagan Mohan Reddy & Anr. Vs. Billa Sanjeeva Reddy & Ors. Reported in (1994) 4 SCC 659.

¶36

ii) Jaipur Development Authority Vs. Kailaswati Devi (Smt) reported in (1997) 7 SCC 297.

¶37

iii) Sanjay Kumar Singh Vs. State of Jharkhand reported in (2022) 7 SCC 247.

¶38

6 - NC: 2024:KHC:28865 MSA No. 133 of 2018

¶39

iv) Sri Achyut and Anr. Vs. Smt. Nanda & Ors. Reported in ILR 2009 KAR 87

¶40

v) Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katji and Ors. Reported in (1987) 2 SCC 107.

¶41

It was submitted, while considering application for additional evidence, true test was not whether appellant had opportunity for adducing evidence in earlier stage or not, but, whether appellate Court was able to pronounce judgment on material placed before it without taking additional evidence sought to be adduced.

¶42

It was contended that in Billa Jagan Mohan Reddy 's case (supra), Hon'ble Supreme Court had held delay would not be determining factor for consideration of application. And in Jaipur Development Authority 's case (supra) it was held, even a party who had not led any evidence before trial Court, would be entitled to file application for additional evidence. It was submitted in Sri Achyut 's case (supra), this Court had highlighted need for scientific testing of signatures on disputed document. On above grounds sought for answering substantial questions of law against appellant and to dismiss appeal.

¶43

¶44

NC: 2024:KHC:28865 MSA No. 133 of 2018

¶45

Heard learned counsel and perused impugned judgment and decree.

¶46

As stated above, following substantial questions of

¶47

law are framed for consideration:

¶48

i) Whether first appellate Court was justified in remanding matter back to trial Court merely on ground that application under Order XLI Rule 27 of CPC filed by respondent was allowed?

¶49

ii) Whether first appellate Court was justified in allowing application for additional evidence merely on ground that additional evidence sought to be lead was required for substantiating defence by defendant without finding whether evidence available on record is not sufficient and additional evidence is necessary to pass judgment ?

¶50

Perusal of order sheet of trial Court reveals that I.A.no.VII was filed by defendant on 20.06.2009 and allowed on 02.01.2010. Thereafter, defendant was called upon to furnish details of handwriting expert. Same was furnished on 30.01.2010 and defendant directed to deposit Commissioner's fee of Rs.1,000/- and both parties are directed to file memo of instructions. Memo of instructions was filed on 19.04.2010. Subsequently, defendant was called upon to pay process fee for

¶51

8 - NC: 2024:KHC:28865 MSA No. 133 of 2018

¶52

issuance of Commissioner's warrant and for deposit of Commissioner's fee.

¶53

Thereafter, up to 22.01.2011, needful was not done. Hence, trial Court recalled order dated 02.01.2010 and passed impugned judgment and decree.

¶54

It is seen, plaintiff examined himself as PW.1 and one of witnesses to agreement of sale. Plaintiff got marked agreement of sale and record of rights. Both were crossexamined. Defendant did not adduce oral or documentary evidence, but filed I.A.no.VII for appointment of Court Commissioner as stated above. And, first appellate Court by answering points no.1 to 3, without examination of material available, passed order remanding matter to trial Court.

¶55

From decisions relied, to allow application for additional evidence, first appellate Court would be required to examine whether evidence available was insufficient and additional evidence required for passing judgment. There is no weighing of evidence by first appellate Court. On cursory consideration, it held additional evidence is required by

¶56

9 - NC: 2024:KHC:28865 MSA No. 133 of 2018

¶57

defendant to substantiate his defence, allowed applications and remanded matter.

¶58

It was also required to give finding under Order XLI Rule 27 of CPC, whether notwithstanding exercise of due diligence, additional evidence sought to be led, was not within knowledge and could not be produced before trial Court. In Shivakumar & Ors. Vs. Sharanabasappa & Ors. reported in (2021) 11 SCC 277 , it is held there cannot be routine remand of matters even if I.A. for additional evidence is allowed. And either first appellate Court itself ought to record additional evidence or in alternative, remand matter back to trial Court for purpose of recording additional evidence only and after securing finding, proceed to dispose of appeal on merits.

¶59

On both counts, impugned judgment and decree falls short. Therefore, substantial questions of law no.1 and 2 are answered in favour of appellant and impugned judgment and decree is set aside. Consequently, following:

¶60

ORDER

¶61

Appeal is allowed, impugned order 15.09.2018 passe, in R.A.no.55/2011 is remanded back to first appellate Court for fresh consideration.

¶62

10 -

¶63

NC: 2024:KHC:28865 MSA No. 133 of 2018

¶64

Since both parties are represented before this Court and original suit is of year 2008, it would be appropriate to direct them to appear before first appellant Court on 10.08.2024 without awaiting fresh notice.

¶65

Registry to transmit trial Court records to first appellate

¶66

Court well before said date.

¶67

First appellate Court shall endeavor dispose of appeal on

¶68

priority basis.

¶69

Sd/(RAVI V HOSMANI) JUDGE

¶70

Psg*