Sri Ramachandrappa Vs Sri S Thippanna

THIS RSA FILED UNDER SEC.100 OF CPC., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT/ORDER DATED 19.12.2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HARIHARA IN RA NO.60/2018 AND SET ASIDE THE JUDGMENT AND DECREE DATED 27.01.2017 PASSED IN OS NO.116/2013 ON THE FILEOF THE PRL.CIVIL JUDGE AND JMFC., HARIHAR BY DISMISSING THE SUIT FILED BY THE PLAINTIFF, AND ETC.

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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 V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri. Sundar Raj, learned counsel for the appellants and Sri. V.B. Siddaramaiah, learned counsel for the respondent.

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The defendants No.1 and 2 are the appellants in the second appeal challenging the validity of the decree passed in O.S.No.116/2013 and dismissal of R.A.No.60/2018 filed by them on the ground of limitation.

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HC-KAR

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Facts in the nutshell which are utmost

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necessary for disposal of the present appeal are as under:

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Respondents herein filed a suit for specific performance of the agreement to sell dated 02.06.2010 whereunder the plaintiff had agreed to purchase the property bearing assessment No.2199/2204/2199 with a Site No.453 situated at Harihar City, 'K' Division, Vidyanagar B Block, measuring East to West : 50 feet and North to South : 53 Feet which contains 10'x10' tiled shed, bounded on the East by : 30 Feet Road, West by : Vacant Site of Irni Math, North by: Site No.452 and on the South by : 454.

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Of the total consideration, an advance sale consideration of Rs.2,00,000/- was paid and agreement to sell was also registered before the Sub-Registrar, Harihara. Plaintiff had undertaken to pay the balance sale consideration of Rs.2,43,000/- within a period of three years from the date of said agreement.

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It is contended that plaintiff went on demanding the defendants to get the registration of the schedule property by paying the remaining part of the sale consideration. However, the defendant went on postponing the same for one pretext or the other and ultimately, a legal notice was issued on 29.05.2013.

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Defendant intentionally failed to execute the sale deed. Therefore, suit for specific performance of enforcing the contract of agreement to sell came to be

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filed in O.S.No.113/2013 before the jurisdictional Court.

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On receipt of suit summons, defendants entered appearance and filed the written statements and denied the plaint averments in toto . They contended that it is not the defendants No.1 and 2 who are the owner of the property, but it is Smt. Meenakshmamma who is also the co-owner of the property being the second wife of the first defendant.

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It is also contended that suit is bad in law for

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non-joinder of necessary parties. It is further contended by the defendants that they never intended to sell the property and value of the property was more than Rs.30 Lakhs and therefore the suit is to be dismissed. They further contended that they actually obtained Rs.1,00,000/- loan with interest at 2% and while so lending the amount, agreement has been concocted and sought for dismissal of the appeal.

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Learned Judge after raising necessary issues in the light of the rival contentions of the parties and after due trial, decreed the suit of the plaintiff in part. The operative portion of the judgment reads as under:

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"The suit of the plaintiff is hereby partly decreed with costs.

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The defendants are hereby directed to refund the advance sale consideration amount of Rs.2,00,000/- to the plaintiff with interest at the rate of 18% p.a. from the date of agreement of sale till its realization within 6 months from the date of this Order.

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HC-KAR

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In case the defendants fails to pay the advance sale consideration amount of Rs.2,00,000/- to the plaintiff within 6 months from the date of this order, the plaintiff is at liberty to get execute the registered sale deed by paying remaining sale consideration amount of Rs.2,43,000/- with the following due procedure of law.

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Draw decree accordingly."

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Being aggrieved by the same, an appeal came to be filed before the First Appellate Court belatedly in R.A.No.60/2018.

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An application under Section 5 of the Limitation Act was filed before the First Appellate Court to condone the delay of 632 days in filing the appeal.

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Application was resisted by filing detailed objections statement by the plaintiff.

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Learned Judge in the First Appellate Court taking note of huge delay, is sought to be condoned through application under Section 5 of the Limitation Act,

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held an enquiry on the application filed under Section 5 of the Limitation Act.

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First appellant got examined himself as PW1 and plaintiff got examined as RW1 in respect of the enquiry on the application filed under Section 5 of the Limitation Act.

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First defendant maintained that he was suffering from high blood pressure and ophthalmic problems and therefore sought for condoning the delay.

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It is also contended that the advocate who represented the defendant did not cross-examine PW1 and therefore the defendants were not able to prove the case of the defendants before the Trial Court.

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Except those two reasons, no other reasons are forthcoming to condone the huge delay. He has produced the certificate issued by the doctor who runs 'Sanjeevini

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Clinic', which is marked as Ex.P1.

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HC-KAR

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Learned Judge in the First Appellate Court has considered the probative value of the said medical certificate and has stated that doctor has treated the first defendant for a period from 15.05.2017 to 20.09.2018.

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Learned Judge noted that there is no reason forthcoming from the records as to what prevented the appellant to file the appeal soon after 20.09.2018.

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The First Appellate Court also noted that appeal came to be filed on 17.12.2018. Ex.P2 is the another document on which the huge delay of 632 days is sought to be condoned.

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Ex.P2 is an ECG report and ex.P3 is the X-ray Certificate. Neither Ex.P2 nor Ex.P3 would make out a case that first defendant was prevented from filing the appeal soon after the decree came to be passed.

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Further, the decree that is passed by the Trial Court is on 27.01.2017 whereas ECG report is that of

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17.02.2016, meaning thereby the ill-health if any is earlier

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to the passing of the decree by the Trial Judge.

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Pertinently, what prevented the second defendant to file the appeal in the interregnum is not explained in the affidavit filed in support of the application seeking condonation of delay or at least in the oral testimony of PW1 who is the first defendant.

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No doubt, where the rights of the immovable properties are involved, the delay need to be condoned if appropriate and sufficient reasons are made out by the parties. First Appellate Court was of the considered opinion that no such case was made out where the delay was explained by sufficient cause.

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As such, First Appellate Court rejected the application and confirmed the decree passed by the Trial Court.

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Thereafter, the appellant is before this Court in this appeal on following grounds:

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The impugned judgment and decree suffers from several errors of law and fact which are apparent on the face of the record. The appreciation of the evidence is arbitrary and the conclusion arrived at are unsustainable in law. For these reasons among others, the judgment is liable to be set-aside.

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The judgment and decree passed by the trail court without giving sufficient opportunity to the defendants to defend their case and further erred in come to conclusion that, "the evidence of PW1 as regard to execution of agreement of sell has remained unrebutted".

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The trail court Judge failed to apply its judicial mind with respect to the period prescribed for filing the suit for specific performance of contract and further erred in holding that, "the defendants have executed agreement of sale on 02.06.2010, the present suit is filed on 21.06.2013, i.e., within the prescribed period of 3 years from the date of execution of agreement". The trail court judge failed to notice that the prescribed period of three years for filing suit for specific performance of contract is from the date of execution of agreement of sale to date of filing the suit and whereas this suit is filed on 21.06.2013 and is barred by time.

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The trial court Judge failed to notice that, the defendants in their written statement they clearly stated that, " they have borrowed Rs.1,00,000/from the plaintiff for 2 percent interest and as per the demand made by the plaintiff the defendant executed a nominal agreement of sale deed dated:2/6/2010 for the purpose of security only". Once the executants denied the execution of the impugned agreement sale deed, the trail court could have offered sufficient opportunity to the defendants to prove their defence. But the trail court judge without giving sufficient opportunity to the defendants erred in passing the impugned judgment and it is clear violation of Principal of natural justice.

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The trial court failed to notice that, the witnesses examined on behalf of the plaintiff as P.W-2, S.Thippanna is residing at Bharmmapura where the plaintiff is residing and the deposition of P.W-2 clearly shows that, he has stated his statement before the trail court in order to support the case of the plaintiff.

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The trial court failed to notice that, the witnesses examined on behalf of the plaintiff as P.W-3, Parashuramsa Solanki is a deed writer and he deposed that " the defendants took two witnesses to my office" and he further deposed that, "in between plaintiffs and the defendant there was a negotiation was held in presence of me and witness", this statement is contrary to the deposition of P.W-1. It clearly shows that, the P.W3 deposed false statement before the Hon'ble trail court in order to help the plaintiff. The entire deposition of P.W-2 and 3 is neither reflected in the plaint nor same is deposed by the P.W-1. Hence the trail court would have given opportunity to the defendants to cross examine these witnesses. The trail court further erred in noticing that, both the witness to the alleged agreement of sale are from the plaintiff's place i.e., from Bharmmapur.

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The defendant after filing the Regular appeal before the first appeal court, has examined as P.W-1 and marked Exhibits P-1 to 3. The first appellate court without proper appreciation of documentary as will as oral evidence of the appellants on the reasons of delay in filing the regular appeal, erred in holding that, "the appellants failed to prove the reasons for delay in filing the appeal". Further the trail court erred in dismissing the I.A filed seeking condonation of delay in filing the regular appeal and consequently dismissed regular appeal.

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The trial court and the first appellate court failed to consider from the defendants has filed the above suit, by claiming his right of the fact that, the plaintiff in order to grab the suit schedule property specific performance of contract on a nominal document which was executed by the defendants

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for security purpose for their hand loan borrowed from the plaintiff.

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The first appellate court erred in dismissing the application filed for condonation of delay in filing regular appeal and consequently the regular appeal of the defendant, with out considering the evidence of the defendant as P.W-1 and the documents produced and marked as Exhibits P-1 to 3 by the defendant/PW1 before the first appellate court. Hence the Order passed by the first appellate court is not sustainable either in law or on the facts of the above case and hence the order passed by the first appellate court is liable to be set-aside.

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The appellants reserves their right to urge additional grounds at the time of argument.

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The court fee of Rs.29,700- paid on the appeal memo is sufficient as per the valuation slip annexed separately. The respondent has paid same amount of court-fee both at the Trial court as well at first Appellate court which was accepted, in this appeal also the same amount of court fee of Rs.29,700- is sufficient as per Section 49(1) of the Karnataka court fee and suits valuation Act.

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The appellants have not filed any other appeal against the impugned judgment and decree before this Hon'ble court.

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In the appeal, following substantial questions of

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law are raised :

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1. Whether the Trail court was justified in holding that, "as regard to the limitation, the defendants have executed agreement of sale on 02/06/2010. The present suit is filed on21/06/2013 i.e., within the prescribed period of 3 years from the date of such execution of

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agreement", with out applying its judicial mind that, in this case the period of execution of alleged agreement of sale and the date of institution of suit for specific performance of contract is more than 3 years and hence the suit is barred by time. Hence the finding of the trail court with regard to the limitation is not sustainable in law and facts of the case.

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2. Whether the trial court and first appellate court ware justified in not affording sufficient opportunity to the defendants to defend their case, in as much as it is the clear defence by the defendant that, the impugned agreement of sale is only nominal deed and it was executed for security purpose of loan borrowed from the plaintiff.

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3. The finding reasoning of the trail court in arriving the conclusion regarding execution of alleged agreement of sale has resulted in miscarriage of justice.

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4. Whether the first appellate court was justified in not considering the reasons stated by the appellants by producing the relevant documents for the condoning the delay in filing the regular appeal, in as much as the impugned judgment and decree suffers from several errors of law and fact which are apparent on the face of the record and the appreciation of the evidence is arbitrary and the conclusion arrived at are unsustainable in law.

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5. Whether the first appellate court was justified in dismissing the regular appeal without proper appreciation of evidence on record and without proper interpretation of the law.

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6. Whether the trail court was justified in passing the judgment and decree with out proper interpretation of law.

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Sri. Sundar Raj, learned counsel appearing for the appellant reiterating the grounds urged in the appeal memorandum in the light of the substantial questions of law raised in the appeal memorandum contended that except the suit property, there is no other property available to the appellants and said aspect of the matter is not taken into consideration by the Trial Judge while passing the decree and learned judge in the First Appellate Court only on technical reason of delay, dismissing the appeal has resulted in grave miscarriage of justice warranting this Court to admit the appeal on the aforesaid substantial questions of law.

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He would also contend that possession of the property is still retained by the appellants and therefore, appeal needs to be admitted.

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Per contra, Sri. V.B. Siddaramaiah, learned counsel representing the respondent/plaintiff opposes the appeal grounds and contends that even before the Trial Court, the conduct of the defendants as could be seen from the records is to somehow postpone the execution of the agreement, having received Rs.Two Lakhs as advance sale consideration which is about 40% of the total sale consideration and when notice came to be issued, they did

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not care to execute the sale deed resulting in filing of the suit which has been rightly appreciated by the learned Judge by decreeing the suit.

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He would further invite the attention of this Court to the operative portion of the decree wherein the defendants were given the chance of returning amount

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with interest in six months failing which, the plaintiff was entitled to get the decree executed.

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It is his case that pursuant to the said decree, plaintiff has already filed an execution petition and decree is executed and as per the report of the Court bailiff, the possession is also handed over to the respondent.

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Therefore the contentions urged on behalf of the appellants that the only house in which the appellants are residing cannot be countenanced in law and sought for dismissal of the appeal.

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He would also contend that belated appeal came to be filed before the First Appellate Court and after due enquiry, the learned Judge in the First Appellate Court has dismissed the application seeking condonation of delay. More so, in the absence of any affidavit being filed by the advocate who represented the defendants, huge delay of 632 days was rightly not condoned by the learned

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Judge in the First Appellate Court and sought for dismissal of the appeal.

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Having heard the arguments on both sides, this Court perused the material on record meticulously.

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On such perusal of material on record, it is crystal clear that the agreement to sell dated 02.06.2010 is a registered agreement. Defendants No.1 and 2 are parties to the said agreement and they have received a sum of Rs.Two Lakhs at the time of registration of the agreement.

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Contrary to the contents of Ex.P1, defendants with ulterior motive took up the contentions before the Trial Court that they had received only a sum of Rs.1 Lakh to be repaid with interest at 2%.

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Having taken such defence, the defendants did not prosecute suit properly. It is the contentions of the appellants that their advocate did not cross-examine PW1 and therefore the decree passed by the Trial Court is in

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legality an ex-parte decree. Such a contention cannot be countenanced in law inasmuch as, the sufficient opportunity had been given as is recorded by the learned Judge in the judgment itself.

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Admittedly, the defendants have also taken a false plea that first defendant has got a second wife by name Smt. Meenakshmamma and non-impleading her as party to the suit has resulted in suit being bad in law for non joinder of necessary party.

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Admittedly, Smt. Meenakshamma is not a party to the suit agreement. Therefore, there was no necessity for the plaintiff to implead her who is alleged second wife of the first defendant. Defense as could be seen from the written statement itself that it is not a defence in reality but it is illusory and moonshine in nature only with an intention to somehow avoid the execution the sale deed in favour of the plaintiff.

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Defendants also contended that the property is worth Rs.30 Lakhs and therefore the sale consideration could not have been for Rs.4,43,000/- as is mentioned in Ex.P1. To substantiate said aspect of the matter, there is

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no plausible evidence placed on record nor any document is produced along with the written statement to establish the value of the property was Rs.30 Lakhs.

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All these aspects of the matter have been taken note of by the learned Trial Judge while passing the decree. However, as could be seen from the operative portion, learned Trial Judge was of the opinion that an opportunity to be provided for the defendants to return the advance amount with interest within a period of six months and only in the event of failure to adhere to the said conditions, plaintiff was entitled to get the sale deed executed in his favour. Despite such an opportunity, defendants did not care to comply the condition imposed in the judgment of the learned Trial Judge.

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Therefore, left with no alternative, plaintiff deposited the balance amount the Court and got the sale deed executed by filing an Execution Petition. Bailiff Report along with a memo is filed before the Court today would make it clear that the possession of the suit property is also delivered to the plaintiff. In the teeth of such a document, the contentions urged on behalf of the appellants that they are in possession of the suit property cannot be countenanced in law.

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Further, while dismissing the appeal, learned Judge in the First Appellate Court did take all cautious steps in holding an enquiry on the application seeking condonation of huge delay.

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Learned Judge in the First Appellate Court recorded a categorical findings that Ex.P2 is earlier to the decree of the suit of the plaintiff and so also Ex.P3. Ex.P1 is the document which is said to have been issued by the doctor who runs 'Sanjeevini Clinic' thereby the first

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defendant was treated by the doctor who runs Sanjeevini Clinic for a period from 15.05.2017 to 20.09.2018.

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Said doctor is not examined as a witness in favour of the appellants. Further, even in Ex.P1, there is no mention that the appellant was inpatient and was prevented from moving out.

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Further, nothing prevented the second

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defendant to approach the Court in time and instruct the advocate to file an appeal.

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Pertinently, 27^th January 2017 is date on which the judgment came to be delivered by the Trial Court. Even as per Ex.P1, first defendant was being treated for ill-health from 15.05.2017. What prevented the first defendant to file an appeal between the period of 27.01.2017 to 15.05.2017 is not even mentioned in the affidavit filed in support of application seeking condonation of delay nor deposed to by the PW1 - first defendant before the First Appellate Court.

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Taking note of all these aspects, especially

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when valuable rights had already accrued in the plaintiff, learned Judge in the First Appellate Court dismissing the application seeking condonation of delay is thus perfectly justified.

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In view of the foregoing discussion, viewed from any angle, this Court is of the considered opinion that none of the substantial questions of law raised in the appeal would merit for further consideration.

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