Dismissed

Smt Sukanya v. Sri Syed Abdul Ghani

Karnataka HC2 Dec 2024RSA/144/2023

Case brief

AI extract

What is this about?

This second appeal challenges specific performance decrees. The court found the defendants agreed to sell property for Rs. 4,72,000. Revenue and trial courts established readiness and willingness. The High Court dismissed the appeal, ruling non-framing of an issue was not fatal as courts below decided the point on merits.

What did the court decide?

The regular second appeal was dismissed; the decrees of the Senior Civil Judge and Additional Civil Judge were confirmed.

Smt Sukanya Vs Sri Syed Abdul Ghani — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:49726 RSA No. 144 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 144 OF 2023 (SP)

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BETWEEN:

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SMT SUKANYA W/O KEMAPAIAH AGED ABOUT 56 YEARS HOUSE WIFE

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SRI KEMPAIAH S/O HELAVEGOWDA AGED ABOUT 62 YEARS AGRICUTURIST

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BOTH ARE R/AT CHAMANAHALLI VILLAGE KOPPA HOBLI, MADDUR TALUK MANDYA DISTRICT - 571429

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Digitally signed by B VEENA KUMARI

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Location: HIGH COURT OF KARNATAKA

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…APPELLANTS

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(BY SRI. T SHESHAGIRI RAO., ADVOCATE)

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AND:

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SRI SYED ABDUL GHANI S/O SYED RASOOL AGED ABOUT 57 YEARS R/AT NO 197, 4^TH CROSS SRS BUILDING, KK ROAD DASARAHALLI BENGALURU 560057 …RESPONDENT (RESPONDENT SERVED)

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2 - NC: 2024:KHC:49726 RSA No. 144 of 2023

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.09.2022 PASSED IN RA.NO.17/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADDUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.11.2018 PASSED IN O.S.NO. 136/2017 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, MADDUR.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This regular second appeal is filed challenging the

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judgment and decree dated 28.09.2022 passed in R.A.No.17/2019 by the learned Senior Civil Judge, Maddur and the judgment and decree dated 28.11.2018 passed in O.S.No.136/2017 by the learned III Additional Civil Judge and JMFC, Maddur.

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For convenience, the parties are referred to based on their ranking before the trial Court. The appellants were the defendants, and the respondent was the plaintiff.

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

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NC: 2024:KHC:49726 RSA No. 144 of 2023

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The plaintiff filed a suit against defendants for specific performance of contract. It is the case of the plaintiff that defendant No.1 is the absolute owner of the suit schedule property, which was acquired by her. Further, it is contended that there are no encumbrances in respect of the suit schedule property. Defendant No.2 i.e., the husband of defendant No.1, for their family necessity and for the purpose of construction of house offered to sell the suit schedule property in favour of the plaintiff for a consideration of Rs.4,72,000/and accordingly, defendants have executed registered agreement of sale on 10.08.2016. The defendants received an advance sale consideration of Rs.4,00,000/- by way of cash and agreed to receive balance consideration amount of Rs.72,000/- at the time of registration of sale deed. It was agreed that the defendants shall execute a registered sale deed within six months from the date of execution of the agreement of sale after arranging revenue records. Thereafter, the defendants started to alienate the suit schedule properties

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NC: 2024:KHC:49726 RSA No. 144 of 2023

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to strangers suppressing the agreement of sale dated 10.08.2016.

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After expiry of six moths, the plaintiff issued a legal notice on 19.01.2017 calling upon the defendants to receive balance ale consideration amount and execute a registered sale deed in favour of the plaintiff. The said notice was duly served on the defendants. The defendants have not replied to the legal notice and failed to execute a registered sale deed. Hence, a cause of action arose for the plaintiff to file the suit for specific performance of contract. Accordingly, prayed to decree the suit.

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Defendants filed a written statement denying the averments made in the plaint and also denied the execution of a registered agreement of sale. It is contended that defendant No.1 borrowed a loan of Rs.4,00,000/from the plaintiff and executed an agreement and the said agreement of sale was only for the security purpose. The defendants have no intention to sell the suit schedule property. It is contended that the

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plaintiff was not ready and willing to perform his part of contract. It is contended that the defendants have agreed

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to pay the interest @2% per month on the principle sum. It is contended that there is no privity of contract regarding the sale between the plaintiff and defendants. Hence, on these grounds prays to dismiss the suit.

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The trial Court, based on the aforesaid

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pleadings, framed the relevant issues.

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The plaintiff, to substantiate his case examined

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himself as PW-1 and examined one witness as PW-2 and marked 12 documents as Ex.P.1 to Ex.P.12. Defendant No.1 examined herself as DW-1 and examined one witness as DW-2 and marked four documents as Ex.D.1 to Ex.D.4.

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The trial Court, on assessment of oral and documentary evidence, decreed the suit of the plaintiff with cost and defendants are directed to execute a registered sale deed in favour of the plaintiff in terms of a registered sale agreement dated 10.08.2016 by receiving

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the balance consideration amount of Rs.72,000/- within 30 days from the date of judgment or else, the plaintiff is entitled to get the registered sale deed through the process of law. The defendants, aggrieved by the judgment and decree, passed in O.S.No.136/2017, preferred an appeal in R.A.No.17/2019 on the file of learned Senior Civil Judge, Maddur. The appellate Court, on reassessment of oral and documentary evidence, dismissed the appeal and confirmed the judgment and decree passed by the trial Court vide judgment dated 28.09.2022. The defendants, aggrieved by the impugned judgments filed this regular second appeal.

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9. Heard the learned counsel for the defendants.

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Learned counsel for the defendants submits

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that the plaintiff was neither pleaded or proved that plaintiff was/is always ready and willing to perform his part of contract. He submits that the trial Court has not framed an issue regarding readiness and willingness. He submits that the plaintiff has failed to prove the

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NC: 2024:KHC:49726 RSA No. 144 of 2023

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ingredients of Section 16(c) of the Specific Relief Act, 1963. Hence, on these grounds, he prays to allow the appeal.

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Perused the records and considered the submissions of the learned counsel for the defendants.

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The plaintiff to prove his case, examined himself as PW-1. He reiterated the plaint averments in the examination-in-chief. To prove that the defendants have executed a sale agreement in favour of the plaintiff, produced original registered sale agreement marked as Ex.P.1. The sale agreement discloses that the defendants agreed to sell the suit schedule property for consideration of Rs.4,72,000/- and the plaintiff paid a sum of Rs.4,00,000/- towards advance consideration amount and agreed to pay balance consideration amount at the time of registration of sale deed. It was agreed that the defendants shall execute a registered sale deed within six months from the date of execution of sale agreement after receiving the balance consideration amount.

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Ex.P.2 is the RTC extract which discloses that

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defendant No.1 was the absolute owner of the suit schedule property. Ex.P.3 is MR extract, Ex.P.4 is Form No.15, Ex.P.5 is copy of legal notice issued by the plaintiff to the defendants calling upon to receive the balance consideration amount and execute a registered sale deed. The plaintiff to establish that he was/is always ready and willing to perform his part of contract. Ex.P.6 and Ex.P.7 are the postal receipts. Ex.P.8 is the postal cover, Ex.P.9 is the reply notice wherein, the defendants have denied the execution of sale agreement and contended that it is not a sale transaction but, it is a loan transaction. Ex.P.10 to 12

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are the RTC extracts in respect of the suit schedule property.

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During cross-examination, the defendants have suggested to PW-1 that it is not a sale transaction but a loan transaction, the said suggestion was denied by the PW-1. Further, PW-2 was examined, who is the attesting witness to Ex.P.1, he has deposed that defendants agreed

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to sell the suit schedule property for consideration of Rs.4,72,000/- by receiving a sum of Rs.4,00,000/towards advance consideration amount and to execute sale agreement in favour of the plaintiff. He identified his signature and his signature was marked as Ex.P.1 (d).

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In rebuttal, defendant No.1 examined as DW-1.

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He reiterated the written statement averments in the examination-in-chief and she has deposed that sale agreement executed by the defendants in favour of the plaintiff is only for security purpose for repayment of loan obtained by the defendants from the plaintiff. She deposed that the defendants had no intention of selling the suit schedule property in favour of plaintiff. Defendants have produced document at Ex.D.1 which is a reply notice, Ex.D.2 is the postal receipt, Ex.D.3 is the endorsement, Ex.D.4 is loan availed documents. Further, the defendants during the cross-examination admitted regarding the execution of sale agreement in favour of the plaintiff and

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NC: 2024:KHC:49726 RSA No. 144 of 2023

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also receiving the amount of Rs.4,00,000/- from the plaintiff.

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From the perusal of the entire evidence and records, it clearly establishes that the defendants have agreed to sell the suit schedule property for a consideration of Rs.4,72,000/- and the plaintiff paid a sum of Rs.4,00,000/- towards advance consideration amount, and agreed to pay the balance consideration amount within six months from the date of execution of a registered sale deed. After the expiry of six months, the plaintiff got issued a legal notice as per Ex.P.5, calling upon the defendants to receive the balance consideration amount, and execute a registered sale deed. The defendant replied to the legal notice as per Ex.P.9 (Ex.D.1) wherein, the defendants have taken a defence that the agreement of sale is not a sale transaction but, it is a loan transaction. Admittedly, Ex.P.1 is registered sale agreement. As per Section 92 of the Evidence Act any such contract is reduced to a form of a document and no

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evidence of any oral or agreement or statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, adding, subtracting from its terms. Admittedly, from the perusal of recital of the Ex.P.1, it discloses that it was a sale transaction but, it is not a loan transaction. The defendants cannot vary the oral evidence to contradict the terms of Ex.P.1. The plaintiff has proved that the defendants have agreed to sell the suit schedule property in favour of the plaintiff. The plaintiff has to prove the execution of sale agreement by the defendants in favour of the plaintiff.

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The learned counsel for the defendants submits that the plaintiff has neither pleaded nor led any evidence to establish his readiness and willingness. Further the trial Court had not framed issue under Section 16(C) of the Specific Relief Act, 1963. From the perusal of the judgment passed by the Courts below, both the Courts below have recorded the finding on readiness and willingness. The appellate Court, in paragraph 22 of the

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judgment has recorded that the plaintiff was ready and willing to perform his part of obligation under the contract. Merely, omission to frame an issue is not a fatal to the trial of the suit unless, it has affected the disposal on merits. Though, no issue was framed on the fact the parties have led the evidence on the facts and both the Courts below have discussed and decided the point as if there was an issue framed on it. Merely, non-framing of issue is not a ground to set aside the judgment and decree passed by the Courts below. Further, the said view is supported by the Coordinate Bench of this Court in the

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case of M.C. Suresh Vs. B. Srinivas Naik and Others reported in ILR 2009 KAR 3897 . Further the Hon'ble Apex Court in the case of Bachhaj Nahar Vs. Nilima Mandal & Another reported in AIR 2009 SC 1103 has held as under:

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"12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on

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the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto."

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Both the Courts below have concurrently recorded the finding that the plaintiff has proved execution of sale agreement and also the payment of part consideration amount and plaintiff has established that the plaintiff was/is ready and willing to perform his part of contract. Both the Courts below have rightly passed the

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NC: 2024:KHC:49726 RSA No. 144 of 2023

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impugned judgments. Hence, I do not find any error in the impugned judgments or substantial question of law that arise for consideration in this appeal.

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Accordingly, I proceed to pass the following:

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ORDER

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(i) The appeal is dismissed.

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(ii) The judgment and decree dated 28.09.2022 passed in R.A.No.17/2019 by the learned Senior Civil Judge, Maddur and the judgment and decree dated 28.11.2018 passed in O.S.No.136/2017 by the learned III Additional Civil Judge and JMFC, Maddur are hereby confirmed.

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No order as to the costs.

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In view of the dismissal of the main appeal I.A.

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No.2/2023, does not survive for consideration and is accordingly, disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

Smt Sukanya v. Sri Syed Abdul Ghani

Case brief

What is this about?

What did the court decide?

Smt Sukanya v. Sri Syed Abdul Ghani

Case brief

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