Allowed

Mallappa Dundappa Maneppagol v. Bhimappa Beerappa Yallatti

Karnataka HC5 Jul 2024RSA/100364/2023

Case brief

AI extract

What is this about?

Second appeal against ex parte decree of specific performance where the First Appellate Court dismissed the appeal for delay in filing. The High Court held an opportunity to contest on merits should be afforded subject to terms, set aside both orders, remanded the suit and imposed costs and a deposit.

What did the court decide?

Appeal allowed; orders of First Appellate Court and Trial Court set aside; suit remanded subject to ₹5,00,000 deposit and ₹25,000 costs by defendant No.2, failing which decrees restored automatically.

Mallappa Dundappa Maneppagol Vs Bhimappa Beerappa… — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC-D:9265 RSA No. 100364 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5^TH DAY OF JULY, 2024 BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR SECOND APPEAL NO. 100364 OF 2023 (SP-)

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BETWEEN:

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MALLAPPA DUNDAPPA MANAPPAGOL AGE: 42 YEARS, OCC: AGRICULTURE, R/O. MARADI THOTA, SHINDIKURBET VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591306.

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…APPELLANT

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(BY SRI DINESH M. KULKARNI, ADVOCATE)

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AND:

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BHIMAPPA BEERAPPA YALLATTI AGE: 53 YEARS, OCC: AGRICULTURE, R/O. SHINDIKURBET VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591306.

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Digitally signed by SAROJA HANGARAKI

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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NINGAPPA DUNDAPPA MANAPPAGOL, AGE: 44 YEARS, OCC: AGRICULTURE, R/O. SHINDIKURBET VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591306.

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VITHAL DUNDAPPA MANAPPAGOL, AGE: 40 YEARS, OCC: AGRICULTURE R/O. SHINDIKURBET VILLAGE, TAL. GOKAK, DIST: BELAGAVI-591306.

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MAHANTESH DUNDAPPA MANAPPAGOL AGE: 45 YEARS, OCC: AGRICULTURE, R/O SHINDIKURBET VILLAGE, TAL. GOKAK , DIST. BELAGAVI-591306.

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…RESPONDENTS

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(BY SRI P.G.NAIK AND G.B.NAIK, ADVOCATES FOR R1; NOTICE IN R/O R2-4 IS DISPENSED WITH)

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2 - NC: 2024:KHC-D:9265 RSA No. 100364 of 2023

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.7/2020 DATED 24.02.2023 BY LEARNED THE II ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, AND THE JUDGMENT AND DECREE PASSED IN O.S. NO. 486/2014 DATED 04.08.2016 BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC, GOKAK, AS NULL AND VOID. THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present second appeal is filed under Section 100 of the Code of Civil Procedure, 1908¹ by the defendant No.2 challenging the order dated 24.02.2023 passed on I.A.No.1 in R.A.No.7/2020 by the II Additional Senior Civil Judge, Gokak² and the judgment and decree dated 04.08.2016 passed in O.S.No.486/2014 by the Additional Civil Judge and JMFC, Gokak.³

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

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3. The relevant facts necessary for consideration

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of the present appeal are that the plaintiff filed a suit for

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘First Appellate Court’

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3 Hereinafter referred to as the ‘Trial Court’

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specific performance of the registered sale agreement dated 11.12.2006 and agreement dated 08.07.2010 contending, inter alia that, the property in Sy.No.292/C measuring 1 acre out of 2 acres 30 guntas situated within the limits of Shindikurbet village, Gokak Taluk⁴ was agreed to be sold by one Dundapa Manappagol⁵ who was the owner of the suit property, since he was in need of money for family necessities and for paying of the hand loan. That the said deceased agreed to sell the suit property in favour of the plaintiff for a total sale consideration of ₹1,20,000/- and a sum of ₹1,00,000/was paid on the date of the agreement. That the deceased died on 06.08.2008 and the defendants being his sons executed the sale agreement dated 08.07.2010 wherein they admitted the execution of the agreement dated 11.12.2006 and the receipt of ₹1,00,000/- towards part of the sale consideration by the deceased. That the defendants agreed to receive the balance sale

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4 Hereinafter referred to as ‘suit property’

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5 Hereinafter referred to as ‘deceased’

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consideration of ₹20,000/- and would also get the suit property measured by preparing the map and clearing the encumbrance so as to execute the same. That despite the plaintiff requesting the defendants many times to perform the contract, since they went on avoiding the same, the plaintiff filed the suit.

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4. Despite the service of summons, the defendants

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did not appear before the Trial Court and they were placed exparte. The plaintiff examined himself as PW.1. PW.2 to PW.4 have been examined. Ex.P.1 to Ex.P.3 were marked in evidence. The Trial Court framed four points for consideration:

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“1. Whether the plaintiff proves that, the defendants executed sale agreement dated 08.07.2010 agreeing to sell the suit property for valuable consideration of Rs. 1,20,000/- after receiving advance amount of Rs.1,00,000/from the plaintiff on the date of execution of sale agreement?

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2. Whether the plaintiff proves that, he has been always ready and willing to perform his part of contract?

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3. Whether the plaintiff is entitled to the relief of Specific performance of sale agreement.

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4. What order or decree?”

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The Trial Court vide judgement and decree dated 04.08.2016 decreed the suit and passed the following order:

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“ The suit for specific performance of contract filed by the plaintiff against defendants is hereby decreed with costs.

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The defendants are hereby directed to execute the registered sale deed in respect of the suit property in favour of the plaintiff after receiving balance sale consideration amount of Rs.20,000/- from the plaintiff within three months from this date and deliver actual and vacant possessions of suit property to the plaintiff.

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If the defendant fails to execute the registered sale deed in respect of the suit property in the name of plaintiff and deliver actual and vacant possession, the plaintiff is at liberty to get the same in his name through the process of court.

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Draw decree accordingly.”

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Being aggrieved, the defendant No.2 preferred RA No.07/2020. Along with the said appeal, I.A No.1 was filed seeking to condone the delay of 1163 days in filing the appeal. The defendant No.2 examined himself as PW.1 before the First Appellant Court and marked Ex.P.1 to Ex.P.7. The plaintiff examined himself as RW.1.

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The First Appellate Court, upon appreciation of the oral and documentary evidence on record, vide order

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dated 24.02.2023 dismissed IA No.1 filed under Section 5 of the Limitation Act and consequently dismissed the appeal. Being aggrieved, the present second appeal is filed.

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This Court vide order dated 04.07.2024 framed

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the following substantial questions of law:

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Whether the First Appellate Court was justified in dismissing the appeal on the ground that the appellant had not made out sufficient grounds to condone the delay as sought for vide I.A No.I in R.A No.7/2020 without affording an opportunity to the appellant/ defendant No.2 to contest the suit on merits?

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Learned counsel for the appellant Sri. Dinesh M. Kulkarni vehemently contends that the defendant did not have an opportunity to contest the suit on merits and hence, submits that an opportunity be afforded. He further submits that the suit summons was served on the defendant No.1 and not the appellant herein who is the defendant No.2. He further contended that the delay has

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NC: 2024:KHC-D:9265 RSA No. 100364 of 2023

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been explained which has not been adequately

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appreciated by the First Appellate Court.

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Per contra, learned counsel Smt.P.G.Naik appearing for the respondent No.1/ plaintiff vehemently contends that the agreement of sale dated 11.12.2006 is a registered one which was executed by the deceased and that the subsequent agreement dated 08.07.2010 executed by the defendants who are the legal representatives of the deceased also referred to the registered agreement of sale dated 11.12.2006. It is further contended that the plaintiff having parted with a sum of ₹1,00,000/- in the year 2006 itself, despite passage of nearly 20 years the plaintiff is still litigating seeking for performance of the said agreement. It is further contended that the suit summons having been served on the defendants and they not having appeared before the Trial Court, the question of granting further opportunity to the defendants does not arise. It is further contended that only defendant No.2 has filed the appeal

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before the First Appellate Court as well as the second appeal and the other defendants have not challenged the same. Hence, the learned counsel for the respondent No.1 seeks for dismissal of the above appeal.

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The fact situation leading to the filing of the suit is a matter of record in as much as the registered agreement of sale dated 11.12.2006 has been executed by the deceased in favour of the plaintiff. It is relevant to note that out of the total extent of 2 acres 30 guntas in Sy. No.292/C, an extent of 1 acre is agreed to be sold. The same would amount to bifurcating the property that was owned by the deceased which has devolved upon the legal hairs/ the defendants.

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Although, the notice has been served on defendant No.1, who has received the suit summons of the other defendants on their behalf, they have not appeared before the Trial Court nor filed the written statement. In the appeal filed by the defendant No.2 before the First Appellate Court, the defendant No.2 has

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taken the various grounds/ contentions on the merits of the matter also. However, the appeal on merits also has not been considered since, the First Appellate Court dismissed IA No.1 filed under Section 5 of the Limitation Act seeking to condone the delay of 1163 days in filing the appeal.

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It was the contention of the appellant before the First Appellate Court that he was not served the summons and that did not have an opportunity to contest the suit. However, the First Appellate Court, noticing that the summons was received by the defendant No.1 on behalf of all the defendants, has held that the appellant has failed to demonstrate sufficient grounds for condoning the delay and recorded a finding that there was a delay of two years four months and fourteen days which has not been explained and hence, dismissed IA No.1 and consequently, dismissed RA No.07/2020.

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It is forthcoming from the aforementioned that the defendant No.2 did not contested the suit on merits.

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Although a finding is recorded that the suit summons have been served on the appellant, it is a matter of record that the service of the suit summons is on the defendant No.1 who has received it on behalf of the defendant No.2.

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The fact situation discloses that in the suit for specific performance valuable rights in immovable property are required to be adjudicated. Although there has been some delay, in the interest of justice, it is just and proper that an opportunity be afforded to the appellant herein to contest the suit. Although it is the contention of the learned counsel for the respondent No.1/ plaintiff that an adequate opportunity has been granted to the defendant No.2, in the considered opinion of this Court, the hardship that is caused to the plaintiff can be adequately compensated by imposing appropriate terms on the defendant No.2, whereas the situation wherein the appellant being bound by a decree of specific

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performance consequent to a proceedings which was not contested by him on merits, is an irreparable one.

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Learned counsel for respondent No.1/ plaintiff relies on the judgment rendered by a co-ordinate Bench of this Court in the case of Sairabanu and Others Vs. Prakash Acharya⁶ to contend that the application seeking condonation of delay is an attempt in prolonging the proceedings. The said judgment is inapplicable to the facts of the present case since, there is no material on record to indicate that the application for condonation of delay is merely to drag on the matter and is malafide. On the contrary, as noticed above, valuable rights of the parties having been involved in the present lis between them, which is a suit for specific performance, which has been decreed exparte, it is necessary to afford an opportunity to the appellant to contest the suit on merits, subject to suitable terms being imposed on the appellant.

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6 2022 (2) KCCR SN 108

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In view of the discussion made above, the

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substantial question of law is answered in the negative.

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The learned counsel for the respondent No.1/ plaintiff submits that the decree for specific performance has been executed and the registered sale deed has been executed through the Court Commissioner. However, it is submitted by the learned counsel for the appellant/ defendant No.2 that possession of the property is still with the defendants.

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As noticed above, although, the sale deed has been executed through the Court Commissioner, admittedly the appellant/ defendant No.2 is in possession of the property and the possession has not been handed over to the respondent No.1/ plaintiff. Hence, in the peculiar facts and circumstances of the case, it is just and proper that the no order be made either with regard to handing over of the possession or with regard to the sale deed executed in the execution proceedings initiated by the respondent No.1/ plaintiff at the present stage and

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the said aspect of the matter will also be a subject matter of consideration in the judgment that shall be passed by the Trial Court on merits after remand.

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In view of the aforementioned, the following:

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ORDER

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i) The above appeal is allowed.

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ii) The order dated 24.02.2023 passed in RA No.07/2020 by the Court of II Additional Senior Civil Judge, Gokak is set aside.

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iii) The judgement and decree dated 04.08.2016 passed in OS No.486/2014 by the Court of Additional Civil Judge and JMFC, Gokak is set aside subject to the following:

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a) The appellant/ defendant No.2 shall deposit a sum of ₹5,00,000/- before the Trial Court on or before the date of appearance before the Trial Court;

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b) The appellant/ defendant No.2 shall pay a cost of ₹25,000/- to the respondent No.1/ plaintiff on or before the date of appearance before the Trial Court and if the respondent No.1/ plaintiff refuses to receive the same, the said cost be deposited before the Trial Court;

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c) The appellant/ defendant No.2 and respondent No.1/ plaintiff shall appear before the Trial Court on 11.09.2024 without the requirement of any fresh notice being issued in this regard;

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d) The defendant No.2 shall file his written statement on the date of his appearance before the Trial Court;

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e) In the event of the appellant/ defendant No.2 failing to fulfill the any of the conditions as ordered above, he will lose the benefit of this order and the judgment and decree of the Trial

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Court and the order of the First Appellate Court shall automatically stand restored;

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iv) The amount of ₹5,00,000/- which is ordered to be deposited by the appellant/ defendant No.2 shall be kept by the Trial Court in a fixed deposit in any nationalised Bank with an automatic renewal clause for a minimum period and the said amount together with accrued interest shall be subject to the final order that shall be passed by the Trial Court in the suit.

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v) The decree of the Trial Court has been set aside only at the instance of the defendant No.2 and no fresh notice is ordered to defendant Nos.1, 3 and 4 since they have not challenged the same. However, in the event defendant Nos.1, 3 and 4 files a written statement before the Trial Court consequent to remand, the same shall be dealt with appropriately by the Trial Court;

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vi) The plaintiff shall be at liberty to adduce further evidence after filing of the written statement by the defendant No.2;

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vii) Needless to state that since the above matter is a old one and the litigation between the parties is pending for a long time, both the parties shall co-operate with the Trial Court to expeditiously dispose of the suit and the Trial Court shall endeavour to dispose of the suit expeditiously without granting any unnecessary adjournment.

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Sd/JUDGE

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SH upto para 4, PJ, CT:GSM List No.: 1 Sl No.: 48

Mallappa Dundappa Maneppagol v. Bhimappa Beerappa Yallatti

Case brief

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Mallappa Dundappa Maneppagol v. Bhimappa Beerappa Yallatti

Case brief

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