Allowed

Sri Gunda @ Thimmarayappa v. Sri M N Vijendra

Karnataka HC10 Sept 2024RFA/1846/2024

Case brief

AI extract

What is this about?

The High Court allowed the first appeal against a decree for specific performance passed in the absence of proper contest by the appellants. The delay in filing was condoned, and the suit was remitted to the trial court for fresh disposal on payment of costs.

What did the court decide?

The impugned decree dated 16.02.2023 passed in O.S.No.747/2019 is set aside and the matter is remitted to the Trial Court for fresh disposal on payment of costs.

Sri Gunda @ Thimmarayappa Vs Sri M N Vijendra — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:36919 RFA No. 1846 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO.1846 OF 2024 (SP)

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BETWEEN:

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SRI GUNDA @ THIMMANAYAKA S/O THIMMANAYAK, AGED ABOUT 64 YEARS,

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SMT. PUTTASIDDAMMA, W/O GUNDA @ THIMMANAYAKA, AGED ABOUT 58 YEARS

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SRI RAVI S/O GUNDA @ THIMMANAYAKA, AGED ABOUT 41 YEARS,

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SMT. RENUKA, D/O GUNDA @ THIMMANAYAKA, AGED ABOUT 38 YEARS

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SRI M CHANDRA S/O GUNDA @ THIMMANAYAKA, AGED ABOUT 37 YEARS

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ALL ARE R/AT DOOR NO.496, BHAIRAVESHWARA TEMPLE STREET, (NAYAKARA BEEDI), HINKAL VILLAGE, KASABA HOBLI, MYSURU TALUK AND DISTRICT - 570030.

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…APPELLANTS (BY SRI VIJAYA KUMAR T M, ADVOCATE)

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2 - NC: 2024:KHC:36919 RFA No. 1846 of 2024

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AND:

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SRI M N VIJENDRA S/O LATE P NAGARAJU, AGED ABOUT 37 YEARS, R/AT 480, KASHI NANJAPPA BLOCK, BEHIND BHAIRAVESHWARA TEMPLE, LINGAYATH STREET, HINKAL, MYSURU - 570030.

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…RESPONDENT

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(BY SRI ROOPESHA B, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.02.2023 PASSED IN O.S.NO.747/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MYSURU AND ETC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard the learned counsel Sri Vijaya Kumar T M and

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Sri Roopesha B appearing for the respective parties.

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2. There is a delay of 427 days in filing the appeal.

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The same is objected by filing a detailed objection.

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Taking note of the fact that the appellants did

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not contest the suit in the Trial Court except filing the

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3 - NC: 2024:KHC:36919 RFA No. 1846 of 2024

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written statement, the judgment and decree of the Trial Court needs to be set aside and the matter is to be remitted to the Trial Court. Accordingly, the delay of 427 days in filing the appeal is condoned.

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By the consent of the parties, the appeal is taken up for final disposal.

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The facts in brief which are utmost necessary for disposal of the appeal as under:

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A suit came to be filed in O.S.No.747/2019 on the file of the Principal Senior Civil Judge and CJM, Mysuru for the relief of specific performance of contract. The defendants entered appearance pursuant to the suit summons and filed written statement. Thereafter, did not contest the suit properly. After affording sufficient opportunity, the learned trial Judge noted that the defendants are not interested in prosecuting the suit properly and decreed the suit of the plaintiff.

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NC: 2024:KHC:36919 RFA No. 1846 of 2024

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Being aggrieved by the same, the defendants

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have filed the present appeal.

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Having heard the parties and on perusal of the material available on record, it is crystal clear that the suit was decided in the absence of the defendants as they failed to contest the suit properly except filing of the written statement.

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Since the right in respect of the immovable property is affected by the impugned judgment, an opportunity needs to be provided for the appellants to contest the suit on merits on payment of cost of Rs.40,000/- and in a time bound manner.

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Accordingly, without discussing on the merits of

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the matter, this Court pass the following:

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ORDER

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a) I.A.No.1/2024 is allowed and the appeal is also allowed.

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5 - NC: 2024:KHC:36919 RFA No. 1846 of 2024

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b) The impugned judgment and decree dated 16.02.2023 passed in O.S.No.747/2019 is set aside.

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c) The matter is remitted to the Trial Court for fresh disposal in accordance with law on payment of cost of Rs.40,000/- payable by the appellant to the respondent on or before 28.09.2024.

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d) Parties shall appear before the Trial Court without further notice on 30.09.2024. Thereafter, the learned trial Judge shall consider the matter afresh on merits and dispose of the same in accordance with law on or before 31.03.2025.

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e) It is made clear that payment of cost is condition precedent for restoration of the suit.

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f) In view of disposal of the main appeal, pending interlocutory applications if any, does not survive for consideration and the same stands disposed of.

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Sd/(V SRISHANANDA) JUDGE

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Sri Gunda @ Thimmarayappa v. Sri M N Vijendra

Case brief

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Sri Gunda @ Thimmarayappa v. Sri M N Vijendra

Case brief

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