Allowed

Smt Nanjamma v. Sri T T Venkatappa

Karnataka HC5 Feb 2024RSA/574/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the RSA, holding that the First Appellate Court committed gross error by dismissing the appeal cryptically without framing points for determination, adverting to issues, or recording reasons as mandated by Order 41 Rule 31 of CPC. The appeal was remitted for fresh consideration.

What did the court decide?

Judgment and order of the First Appellate Court dated 29.11.2022 are set aside and matter remitted for fresh consideration.

Smt Nanjamma Vs Sri T T Venkatappa — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:4894 RSA No. 574 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 574 OF 2023 (SP)

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BETWEEN:

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SMT. NANJAMMA

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W/O LATE HANUMAIAH AGED ABOUT 79 YEARS R/AT SINGONAHALLI VILLAGE TIPPUR POST, YADIYUR HOBLI KUNIGAL TALUK, TUMKUR DISTRICT-573 120.

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SMT NINGAMMA @ LINGAMMA W/O LATE C. HANUMANTHA AGED ABOUT 51 YEARS

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SRI GIRISHA S/O LATE C HANUMANTHA AGED ABOUT 23 YEARS

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SMT DEVIKA D/O LATE C. HANUMANTHA AGED ABOUT 20 YEARS

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APPELLANTS 2 TO 4 ARE R/AT NO.222/3, SWATHI NILAY NARAYANAPPA COMPOUND, BEHIND KEB OFFICE KUNIGAL TOWN, KUNIGAL TALUK TUMKUR DISTRICT-572 130.

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…APPELLANTS

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(BY SRI. SAMPATH A.,ADVOCATE A/W SRI. MALLIKARJUN N.K., ADVOCATES)

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NC: 2024:KHC:4894 RSA No. 574 of 2023

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AND:

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SRI T T VENKATAPPA S/O THIMMAIAH AGED ABOUT 65 YEARS R/A NO.189, 5TH CROSS 6TH MAIN ROAD, INDUSTRIAL NAGAR WEST OF CHORD ROAD, BENGALURU-560 086.

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…RESPONDENT

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(BY SRI. NAVEEN KUMAR L., ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND ORDER DATED 29.11.2022 PASSED IN R.A.No.134/2022 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.02.2022 PASSED IN O.S.No.8/14 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KUNIGAL.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Appeal was admitted on 16.01.2024 to consider the

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following substantial question of law:

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"Whether the First Appellate Court is justified in dismissing the appeal confirming the judgment and decree passed by the Trial Court without framing the points for consideration and without adverting to the issues raised and considered by the Trial Court independently in compliance of Order XLI Rule 31 of CPC."

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NC: 2024:KHC:4894 RSA No. 574 of 2023

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This appeal is by the defendants aggrieved by the Judgment and decree dated 02.02.2022 passed in O.S.No.8/2014 on the file of Senior Civil Judge and JMFC, Kunigal by which trial court has decreed the suit of the plaintiff for specific performance which Judgment and decree has been confirmed by Judgment and order dated 29.11.2022 passed in appeal in R.A.No.134/2022 on the file of II Additional District and Sessions Judge, Tumakuru. Being aggrieved by the same the defendants are before this Court.

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The above suit is filed by the respondent/plaintiff seeking relief of specific performance of an agreement of sale dated 06.11.2012 contending interalia that defendant No.1 is the absolute owner of the property bearing Sy.No.128/P2 measuring 3 acres situated at Turuvekere Village, Yediyur Hobli, Kunigal Taluk. That the defendant No.1 had entered into agreement of sale dated 06.11.2012 for a total sale consideration of Rs.10 lakhs out of which plaintiff had paid a sum of Rs.9,75,000/- and balance consideration of Rs.25,000/was to be paid. That the plaintiff being ready and willing to perform his part of the contract had approached the defendants on several occasions and requested defendants to execute deed

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4 - NC: 2024:KHC:4894 RSA No. 574 of 2023

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of sale in respect of the suit schedule property. Though the defendant had promised to execute the registered deed of sale did not comply with the same. Plaintiff had caused issuance of notice on 30.01.2014 by Registered Post Acknowledgement Due which was returned unserved with an endorsement "addressee not found". Having left with no other alternate plaintiff filed the above suit for specific performance.

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On service of summons defendants filed written statement denying the case of the plaintiff. It is contended that defendant No.1 is the absolute owner of suit schedule property. Except suit schedule property defendant No.1 had no other property for his avocation or livelihood and defendants 1 and 2 were carrying out agricultural activities in the suit schedule property for eking out their livelihood. That defendant No.1 was constructing a residential house at Kunigal and as she was in shortage of amount had availed finance/loan amount of Rs.2,00,000/- from one Ramanna who was working as a Bus Conductor. At the time of availing loan said Ramanna had obtained signatures and thumb impression of the defendants on blank e-stamp paper and document sheets and on demand promissory note. Defendants agreed to pay interest @ 3% per

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5 - NC: 2024:KHC:4894 RSA No. 574 of 2023

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month to said Ramanna till repayment of the loan amount. Defendants repaid the entire loan amount of Rs.2,00,000/-. Though the said person had assured to return and hand over the documents he did not do so. However they have come before the Court with false and frivolous suit misusing the said documents. Hence sought for dismissal of the suit.

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Based on the aforesaid pleading, trial Court framed following issues:

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"1. Whether the plaintiff proves that the execution of agreement of sale dated:06.11.2012?

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2. Whether plaintiff proves the readiness and willingness to perform his part of contract?

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3. Whether the defendants proved that they had obtained loan from one Ramanna and signed blank e-stamp paper in his favour?

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4. Whether the plaintiff is entitled for the reliefs?

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5. What Order or Decree?".

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and recorded evidence plaintiff examined himself as PW-1

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and examined four witnesses as PW-2 to PW-5 and exhibited 7 documents marked as Ex.P-1 to P-7. Defendant No.1 examined herself as DW-1 and no documents were marked on behalf of

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NC: 2024:KHC:4894 RSA No. 574 of 2023

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defendants. On appreciation of pleading and evidence, trial Court answered issue Nos.1, 2 and 4 in the affirmative and issue No.3 in the negative and consequently decreed the suit as sought for by its Judgment and decree dated 02.02.2022. Being aggrieved by the same, defendants preferred an appeal in R.A.No.134/2022. Considering the grounds urged in the memorandum of appeal the first appellate Court framed following points for its consideration:

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1. Whether the appellant proves that the judgment of the trial court is opposed to law?

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2. Whether the interference of this court in the impugned judgment and decree is necessary?

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3. What order?".

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and in a cryptic order without assigning any reasons or adverting to the issues of controversy, passed the impugned Judgment and order dated 29.11.2022. Being aggrieved by the same appellants are before this Court.

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Despite sufficient opportunities there has been no representation on behalf of the respondent.

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NC: 2024:KHC:4894 RSA No. 574 of 2023

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Learned counsel for the appellants taking through the contents of the impugned Judgment and order passed by the first appellate Court submitted that the first appellate Court has absolutely given no reasons whatsoever to arrive at the conclusion confirming and concurring with the reasonings and conclusion arrived at by trial Court. He submitted legal and statutory obligation is casted on the first appellate Court to have adverted to each of the issues framed by trial Court and thereafter reappreciate the material evidence and then come to its own conclusion reflecting independent application of mind. That having not been done the first Appellate Court grossly erred in dismissing the appeal warranting interference at the hands of this Court.

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Heard and perused the records.

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Order 41 Rule 31 of CPC reads as under:

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"31. Contents, date and signature of Judgment.-The Judgment of the Appellate Court shall be in writing and shall state-

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(a) the points for determination;

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(b) the decision thereon;

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(c) the reasons for the decision; and

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8 - NC: 2024:KHC:4894 RSA No. 574 of 2023

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(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

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and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

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The Apex Court in the case of B.V.Nagesh and

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another Vs H.V.Sreenivasa Murthy reported in (2010) 13

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SCC 530 at paragraphs 3 and 4 has held as under:

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"3. How regular first appeal is to be disposed of by the appellate Court/High Court has been considered by this Court in various decisions. Order XLI C.P.C. deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate Court shall state:

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a) the points for determination;

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b) the decision thereon;

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c) reasons for the decision; and -

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d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

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4. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all

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NC: 2024:KHC:4894 RSA No. 574 of 2023

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the issues arising along with the contentions putforth and pressed by the parties for decision of the appellate Court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 188, para 15 and Madhukar and Others vs. Sangram SCC P.758, para 5."

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Aforesaid principle of law has been reiterated by the Apex court in the case of State Bank of India and Another Vs Emmsons International Limited and Another reported in (2011)12 SCC 174, H.Siddiqui (dead) by LRs Vs A.Ramalingam reported in (2011) 4 SCC 240 and has held that sitting as a court of first appeal it is the duty of the appellate court to deal with all the issues and evidence led by the parties before recording its findings. Same has been reiterated by the Apex Court in the case of Somakka (dead) by legal representatives Vs K.P.Basavaraj (dead) by legal representatives reported in (2022) 8 SCC 261.

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NC: 2024:KHC:4894 RSA No. 574 of 2023

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In the light of the provisions of CPC and law laid down by Apex Court and on perusal of the impugned Judgment and order of the first appellate Court it is not only astonishing but also of a grave concern. Though points for consideration have been framed, except formal repeated statements to the effect that "the trial Judge has discussed the material in detail coupled with oral and documentary evidence and reached the correct conclusion" absolutely nothing has been discussed in the appeal. In view of the same this Court has no hesitation in setting aside the Judgment and order passed by the first appellate Court and remitting the matter to the first appellate Court for fresh consideration of the appeal adverting to all the grounds and the points urged by the appellants in the light of provisions of Order 41 Rule 31 of CPC and law enunciated by the Apex Court in that regard as noted herein above.

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Accordingly appeal is allowed. Judgment and order dated 29.12.2022 passed in R.A.No.134/2022 by the first appellate Court is set aside. Matter is remitted to the first appellate Court and first appellate Court shall dispose of the appeal

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NC: 2024:KHC:4894 RSA No. 574 of 2023

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afresh, after affording opportunity to the parties, in accordance with law.

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Registry to refund permissible court fee to appellants on proper identification.

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Sd/JUDGE

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SBN

Smt Nanjamma v. Sri T T Venkatappa

Case brief

What is this about?

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Smt Nanjamma v. Sri T T Venkatappa

Case brief

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