Second appeal against decreed suit for specific performance based on a 1995 agreement of sale. Holding that readiness and willingness and hardship were not considered and the first appellate judgment was cryptic, the High Court set aside both judgments and remanded the suit to the Trial Court for fresh decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC-D:9496 RSA No. 5384 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5384 OF 2009 (SP-)
BETWEEN:
SRI YALLAPPA S/O MALLAPPA YARAGATTI, AGE: 35 YEARS, OCC:COOLIE, R/O MAHANTESH NAGAR, BELAGAVI.
…APPELLANT
(BY SMT. KAVITA S. JADHAV, ADVOCATE SRI SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD
- 2 - NC: 2024:KHC-D:9496 RSA No. 5384 of 2009
R/O BOCHABAL, TQ. RAMDURG.
…RESPONDENT
(BY SRI SANTOSH S. HATTIKATAGI, ADVOCATE FOR R-1; NOTICE ISSUED TO R2 TO R11 IS SERVED BUT UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.1/2009 DATED 21.04.2009 PASSED BY THE COURT OF THE CIVIL JUDGE (SR.DN.) AT RAMDURG AND DISMISS THE SUIT BEARING O.S.NO.43/2003 OF JUDGMENT DATED 29.10.2005 PASSED BY CIVIL JUDGE (JR.DN.), RAMDURG.
THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by one of the legal representative of the deceased defendant challenging the judgment and decree dated 21.04.2009 passed in R.A.No.1/2009 by the Senior Civil Judge, Ramdurg2 and the judgment and decree dated 29.10.2005 passed in O.S.No.43/2003 by the Civil Judge, Ramdurg3 wherein the suit for specific performance filed by the respondent No.1/plaintiff has been decreed by the Trial Court and affirmed by the First Appellate Court.
property bearing VPC No.831 measuring east-west 23 feet
1 Hereinafter referred to as the ‘CPC’
2 Hereinafter referred to as the ‘First Appellate Court’
3 Hereinafter referred to as the ‘Trial Court’
and north-south 10 feet 6 inches4 was owned by the defendant. That the defendant being in need of money, approached the plaintiff and accordingly the defendant agreed to sell the suit property to the plaintiff for a total sale consideration of ₹15,000/- and hence the agreement of sale dated 07.04.19955 was executed between the
parties. That out of the total sale consideration, an advance of ₹10,000/- was paid by the defendant which was acknowledged in the said agreement. That the plaintiff was put in possession of the said property on the date of the agreement and she has been using the same
as a cattle shed and to store agricultural implements.
defendant forcibly entered into possession of the suit property, as a result of which the plaintiff initiated criminal proceedings in C.C.No.808/97. That the plaintiff requested the defendant to complete the sale transaction and conveyed her readiness and willingness. However,
4 Hereinafter referred to as ‘suit property’
5 Hereinafter referred to as the ‘said agreement’
the defendant went on avoiding the same. That the defendant once again trespassed into the suit property, as a result of which the plaintiff filed the suit for specific performance.
counsel for the defendant filed a memo of retirement, subsequent to which the Trial Court ordered for issuance
of court notice which was served on the defendant. However, no counsel has entered appearance on behalf of the defendant and the defendant remained unrepresented. The cross-examination of PW.3 was taken
as nil and the defendant having remained absent, the Trial Court after hearing the submissions made on behalf of plaintiff, by its judgment and decree dated 29.10.2005 decreed the suit and passed the following order:
“The suit of the plaintiff is hereby decreed with costs.
The defendant is hereby called upon to execute the final sale-deed after taking balance sale-consideration of Rs.5000/- within 2 months from the date of decree.
Draw decree in the above terms.”
8. Being aggrieved, the one of the sons of the
defendant preferred R.A.No.1/2009. The plaintiff entered appearance before the First Appellate Court and contested
the same. The First Appellate Court by its judgment and decree dated 21.04.2009 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court and ordered that the legal representatives of the deceased defendant were to execute the same. Being aggrieved, the present second appeal is filed.
the above appeal and passed the following order:
as raised in the memorandum of appeal and also to consider the question as to:
performance is filed eight years after the date of agreement and also the trial court not adverting to the equities of the situation when the suit is being decreed ten years after the date of agreement on a price as said to have been agreed between the parties on the date of agreement, and with the defendant being admittedly in possession of the subject property, whether by use of force or otherwise?”
Jadhav appearing for learned counsel, Sri.Shriharsh A Neelopant vehemently contends that although the court notice was served on the defendant, he has not appeared and thereafter the defendant having died, his legal representatives did not have an opportunity to contest the suit on merits. It is further contended that the Trial Court nor the First Appellate Court had considered the aspect of readiness and willingness as contemplated under Section 16(c) of the Specific Relief Act, 19636 as also the aspect of hardship as contemplated under Section 20 of the Act
6 Hereinafter referred to as ‘Act of 1963’
of 1963. Hence, she seeks for setting aside of the judgment and decree passed by the Trial Court and the First Appellate Court. It is further contended on behalf of the appellant that PW.1 in her cross-examination has admitted that the suit filed by her is one for recovery of money. It is further admitted by PW.1 that the possession
of the property is not with her. Hence, she seeks for allowing of the appeal.
NC: 2024:KHC-D:9496 RSA No. 5384 of 2009
into possession of the suit property and have
dispossessed the plaintiff.
is no time fixed under the agreement, the suit of the plaintiff is within time.
appreciated. The First Appellate Court was required to reappreciate the oral and documentary evidence on record and the judgment ought to reflect its conscious application of mind and record findings supported by reasons on all the issues along with the contentions put forth by the parties. The First Appellate Court being a final
Court of facts, while recording findings, the Court ought to give adequate reasons by appreciating the material on record which has not been done in the present case.
requirement of the plaintiff to satisfy the stipulations contained under Sections 16 and 20 of the Act of 1963, it is just and proper that the judgments of the Trial Court and the First Appellate Court be set aside, the matter remanded to the Trial Court and an opportunity be afforded to the appellant to contest the suit on merits as also to enable the Trial Court to recast the issues by framing appropriate issues.
NC: 2024:KHC-D:9496 RSA No. 5384 of 2009
ORDER
NC: 2024:KHC-D:9496 RSA No. 5384 of 2009
11th September 2024 without the requirement of any fresh notice being issued in this regard;
Registry to transmit the records to the Trial Court
and First Appellate Court forthwith.
Sd/JUDGE
SH CT:GSM List No.: 1 Sl No.: 49
2 issues framed by the court
Were readiness and willingness (S.16(c)) and hardship (S.20) adequately considered before decreeing specific performance?
Should the judgments be set aside where the defendant was unrepresented and no issue on Sections 16/20 was framed?
4 provisions across 3 enactments
Sri Yallappa s/o Mallappa Yaragatti
Smt. Basawwa w/o Gadigeppa Bashetti
Smt. Hanmawwa w/o Mallappa Yaragatti
Shri Durgappa s/o Mallappa Yaragatti
Shri Gaddigeppa s/o Mallappa Yaragatti
Shri Hanmantappa s/o Mallappa Yaragatti
C.M. Poonacha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
