Smt Vijayalaxmamma Vs Smt Thayamma

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.8.2014 PASSED IN R.A.NO.53/2013 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & CJM, RAMANAGARA, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.3.2013 PASSED IN O.S.NO.133/2012 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC., RAMANAGARA.

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THIS APPEAL, COMING ON FOR FINAL HEARING, 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 by the appellants challenging the judgment and decree dated 20.08.2014 passed in R.A.No.53/2013 by the Principal Senior Civil Judge and CJM, Ramanagara, and the judgment and

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decree dated 14.03.2013 passed in O.S.No.133/2012 on the file of the learned Principal Civil Judge and JMFC, Ramanagara.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants for a specific performance of the contract. It is contended that Defendant No. 1 has acquired the suit property in Panchayat parikath and accordingly he was in possession of the same. It is contended that, the plaintiffs are the legal representatives of Puttaramaiah who passed away on 23.02.2011. During his life time, he entered into a registered sale agreement dated 27.08.2009, wherein the defendants agreed to sell the suit schedule properties in

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favour of the late Puttaramaiah for a sum of Rs.2,05,000/-

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, and received an advance sale consideration amount of Rs.2.00 lakhs, and it was agreed that the balance sale consideration be paid at the time of registration of a sale deed i.e., within 12 months. Meanwhile, Puttaramaiah

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died, leaving behind the plaintiffs as his legal heirs. The plaintiffs requested the defendants to receive the balance consideration amount, and execute a registered sale deed. However, the defendants did not receive the balance consideration amount and execute a registered sale deed. Hence, a cause of action arose for the plaintiff to file a suit for the specific performance of a contract. Accordingly, prays to decree the suit.

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Though, the defendants have appeared through the counsel, they did not file a written statement. The plaintiffs to substantiate their case, plaintiff No.1 was examined as PW-1 and marked 3 documents as Ex.P.1 to Ex.P.3. The defendant did not cross-examine PW-1.

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The trial Court, after hearing learned counsel

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for the parties, framed the following points for

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consideration.

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POINTS

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1. Whether the plaintiffs prove that the defendants had executed registered agreement in favour of plaintiff on 27.08.2009 agreeing to sell the suit property for Rs.2,05,000/-?

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2. Whether the plaintiffs prove that the defendants have received Rs.2 lakhs as on the date of agreement?

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3. Whether the plaintiffs are prove that they are ready and willing to perform their part of the contract?

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4. Whether the plaintiffs are entitled for the relief’s as prayed for?

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5. What order?

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The Trial Court, after recording the evidence of

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PW-1, hearing both sides, and on assessing the verbal and documentary evidence, answered points No.1 to 4 in the negative, and point No.5 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 14.03.2013. The plaintiffs, aggrieved by the judgment

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and decree passed in O.S.No.133/2022, preferred an appeal in R.A.No.53/2013 on the file of the Principal Senior Civil Judge and CJM, Ramanagara.

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The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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POINTS

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1. Whether appellants have shown sufficient reasons to permit them to produce original agreement of sale as an additional evidence?

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2. Whether plaintiffs prove that defendants have executed registered agreement of sale in favour of Puttaramaiah on 27.08.2009 agreeing to sell the suit schedule property for Rs.2,05,000/-?

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3. Whether plaintiffs prove that defendants have received Rs.2,00,000/- as an advance agreement as on the date of agreement?

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4. Whether plaintiffs prove that they are ready and willing to perform their part of the contract?

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5. Whether plaintiffs are entitled for the relief of specific performance of contract?

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6. Whether plaintiffs are alternatively entitled for an advance amount of Rs.2,00,000/from the defendants, in case they are not

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entitled for specific performance of contract?

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7. Whether judgment and decree of the lower Court are perverse and capricious and call for any interference by this Court?

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8. What Order?

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The first appellate Court, on reassessing the verbal and documentary evidence, answered points No.1 to 3, 6 and 7 in the affirmative, points No.4 and 5 in the negative, and point No.8 as per the final order. The appeal was allowed in part with cost vide judgment dated 20.08.2014. The judgment and decree passed in O.S.No.133/2012, dated 14.03.2013, was set aside, and the suit of the plaintiff was partly decreed. The defendants are directed to pay an advance sale consideration amount of Rs.2.00 lakhs, together with interest thereon @9% per annum, to the plaintiffs from the date of the agreement of sale till the date of realization of the entire amount. The plaintiffs, aggrieved by the dismissal of the suit for specific performance of a contract, have filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the plaintiffs, and the defendants.

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Learned counsel for the plaintiffs submits that the defendants agreed to sell the suit schedule properties in favour of Puttaramaiah, and received Rs.2.00 lakhs as an advance sale consideration amount, and it was agreed that the balance sale consideration amount to be paid at the time of registration of sale deed. He submits that in the meantime, the defendants filed a suit in O.S.No.316/2011 for cancellation of a registered sale agreement dated 27.08.2009.

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Initially, the said suit was decreed, and thereafter, the present plaintiffs herein aggrieved by the judgment and decree passed in O.S.No.316/2011, preferred an appeal in R.A.No.32/2014. The first appellate Court set aside the judgment and decree passed in O.S.No.316/2011, and remitted the matter to the trial Court for reconsideration.

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After remand, the defendants herein withdrew

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the suit in O.S.No.316/2011. He submits that in view of the suit filed by the defendants in O.S.No.316/2011 the plaintiff could not issue a legal notice. He submits that the plaintiffs have proved their readiness and willingness in performing their part of a contract. The first appellate Court has not adequately considered the said fact, and furthermore, there is no denial by the defendants. He submits that the defendants though appeared through the counsel, did not file their written statement. Hence, he submits that the first appellate Court committed an error in dismissing the suit for specific performance of a contract. He also submits that the trial Court has not properly appreciated the entire evidence, and committed an error in dismissing the suit. Hence, he prays to allow the appeal, and remit the matter to the trial Court.

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Per contra, the learned counsel for the

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defendants fairly submits that matter may be remanded to the trial Court with the liberty to file a written statement.

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Perused the records, and considered the submissions of the learned counsel for the parties.

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This Court, vide order dated 03.11.2023 framed the following substantial questions of law:

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1. Whether the first appellate Court was justified in declining to grant the relief of specific performance on the ground that the plaintiff before filing the suit has not issued the legal notice calling upon the defendant to accept the balance consideration amount and to execute the registered sale deed?

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2. Whether the first Appellate Court has committed an error in declining to grant specific performance on the ground that the plaintiff has not complied the requirement of Section 16(c) of the Specific Relief Act in the absence of written statement and evidence.”

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Reg: Substantial Question of Law 1 and 2:

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Substantial Question of Law Nos. 1 and 2 are interlinked, and they are taken together for common discussion to avoid the repetition of facts.

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The plaintiffs, to prove their case, plaintiff No.1 was examined as PW-1. She deposed that the defendants agreed to sell the suit schedule properties for a consideration of Rs.2,05,000/- and accordingly the father of the plaintiffs, Puttaramaiah, paid an advance sale consideration of Rs.2.00 lakhs and agreed to pay the remaining balance sale consideration amount at the time of execution of the registered sale deed. Meanwhile, the defendants filed a suit in O.S.No.316/2011 seeking cancellation of the registered sale agreement dated 27.08.2009 on the file of Civil Judge (Jr.Dn.) Ramanagara. The trial Court decreed the suit. The plaintiffs herein, aggrieved by the judgment and decree passed in O.S.No.316/2011, preferred an appeal in R.A.No.32/2014. The first appellate Court allowed the appeal, and set aside

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the judgment and decree in O.S.No.316/2011, remitting the matter to the trial Court for fresh consideration.

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Meanwhile, the defendants withdrew the suit in O.S.No.316/2011. Immediately after the receipt of summons from the Civil Judge (Jr.Dn.) Ramanagar, in O.S.No.316/2011, the plaintiffs have filed a suit for specific performance of a contract on the ground that in view of the suit filed by defendants in O.S.No.316/2011, there is a denial in performing their part of a contract. The plaintiffs have produced the original agreement of sale marked as Ex.P.1, and produced at Ex.P.2 and Ex.P.3 which are the RTC extracts. The defendants did not crossexamine the PW-1. The trial Court, without examining regarding the pendency of the suit in O.S.No.316/2011 proceeded to dismiss the suit. Even the first appellate Court did not consider the pendency of a suit in O.S.No.316/2011, and the fact that the said suit was withdrawn by the defendants herein. The first appellate Court has recorded the finding that the plaintiffs have

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failed to prove that they were ready and willing to perform their part of a contract. Further, the defendants have not filed a written statement denying the averments made in the plaint regarding readiness and willingness. Both the Courts below without examining regarding the pleading, and the proof, regarding readiness and willingness, have committed an error in recording its finding that plaintiffs failed to prove that they are ready and willing to perform their part of a contract.

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Both the Courts below have not adequately considered the material placed on record. The matter requires reconsideration by the trial Court, as the defendants have not filed a written statement. However, learned counsel for the defendants submits that the matter be remitted to the trial Court with the liberty to the defendants to file a written statement. From the perusal of the judgments passed by the Courts below it is evident that both the Courts below have committed an error in refusing to grant the relief of specific performance

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of a contract solely on the ground that the plaintiffs have

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failed to prove that they are not ready and willing to perform their part of a contract. In view of the above discussion, I answer Substantial Question of Law No.1 in the negative, and Substantial Question of Law No.2 in the affirmative.

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Accordingly, I proceed to pass the following:

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ORDER

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(i) The Appeal is allowed. (ii) The judgment and decree dated 20.08.2014 passed in R.A.No.53/2013 by

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the Principal Senior Civil Judge and CJM, Ramanagara, and the judgment and decree dated 14.03.2013 passed in O.S.No.133/2012 on the file of the learned Principal Civil Judge and JMFC, Ramanagara are set aside.

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(iii) The matter is remitted to the trial Court. The suit is restored to its original file.

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Liberty is reserved to the defendants to

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file a written statement within one month

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from the date of appearance.

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(iv) All the contentions of the parties are kept open.

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(v) The trial Court is directed to dispose of the suit, without being influenced by any observations made in this judgment.

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(vi) The Parties are directed to appear before the trial Court on 25.08.2025 .

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(vii) The Office is directed to refund the Court fee in favour of the appellants as per Section 64 of the Karnataka Court Fee and Suits Valuation Act, 1958.

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Learned counsel for the defendants submits that,

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pursuant to the judgment passed by the first appellate Court, the defendants have deposited an amount of Rs.2,90,000/-.

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