IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1555 OF 2011 (SP) BETWEEN 1. SMT.BASAMMANNI W/O.M.K.PUTTARAJU AGED ABOUT 46 YEARS 2. M.K.PUTTARAJU S/O.KULLAPPA AGED ABOUT 56 YEARS BOTH ARE R/AT MODUR VILLAGE GAVADAGERE HOBLI HUNSUR TALUK-571 001 (BY SRI.Y.D.HARSHA, ADVOCATE) AND DEVANAYAKA S/O.DEVANAYAKA AGED ABOUT 67 YEARS R/AT KOLAVIGE VILLAGE HANAGODU HOBLI HUNSUR TALUK-571 001 (BY SRI.SANDEEP KATTI, ADV. FOR SRI.DINESHA EOP, ADV.) ...APPELLANTS … RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED: 11.04.2011 PASSED IN R.A.No.171/2010 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL CONFIRMING JUDGMENT AND DECREE DATED: 08.04.2010 PASSED IN O.S.No.123/2003 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC., HUNSUR.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is listed for admission, with the consent of learned counsel for the parties, it is heard finally.
2. This appeal is filed by the defendants being aggrieved by the judgment and decree dated 08.04.2010 passed in OS No.123/2003 by the Additional Senior Civil Judge and JMFC, Hunsur, which was upheld by the I Additional District Judge, Mysore in RA No.171/2010 vide dated 11.04.2011.
3. Heard the arguments of learned counsel for the appellants as well as learned counsel for the respondent.
4. The status of the parties before the Trial Court is retained for the sake of convenience.
5. The case of the plaintiff before the Trial Court is that the plaintiff filed a suit for specific performance of the contract directing the defendants to execute the sale deed in view of the agreement of sale dated 28.09.2002. It is contended by the plaintiff that the plaintiff entered into an agreement of sale with the defendants on 28.09.2002 for purchase of the property measuring 4 acres 35 guntas for the sale consideration of Rs.2,50,000/- and on the same date, the plaintiff paid Rs.1,20,000/- to the defendants as advance sale consideration and the defendants agreed to excute the sale deed on receiving the balance sale consideration on or before 26.02.2003. It is the further case of the plaintiff is that the defendants did not come forward to receive the balance sale consideration and to execute the sale deed. Therefore, the plaintiff was constrained to issue legal notice as per Ex.P.3 on 27.02.2003 calling upon the defendants to come to the Sub-Registrar’s Office on 10.03.2003 and execute the sale deed, but the defendants did not reply and did not come to the Sub-Registrar office. Therefore, another legal notice is said to have been issued on 17.04.2003. However, in the meanwhile, the defendants replied on 16.03.2003 stating that they came to the Sub-Registrar’s Office for executing the sale deed but the plaintiff failed to come to the Sub- Registrar’s office, hence, they sought for cancellation of the agreement of sale. Therefore, the plaintiff filed the suit before the Trial Court. Pursuant to the notice, the defendants appeared before the Trial Court and filed their written statement admitting execution of the agreement of sale, but denied receipt of Rs.1,20,000/-. However, they appeared before the Sub-Registrar office on 17.02.2003, waited till 6.00 p.m. but the plaintiff did not turn up to pay the balance sale consideration. The plaintiff was not ready with cash and failed to come for registration of the sale deed. The defendants also appeared before the Sub- Registrar’s on 10.03.2003, but the plaintiff stated that he is not having enough money to pay the balance sale consideration and that he will make arrangements. The defendants were in need of money for the marriage of their daughter, hence they refused the amount at a later stage. Even on 23.04.2003, the defendants came to the Sub-Registrar’s office, but the plaintiff stated that he could not adjust the balance sale consideration and the plaintiff is not ready and willing to perform his part of the contract. Hence, prayed for dismissal of the suit 6. Based upon the rival pleadings, the Trial Court framed the following issues:
“1. Whether the plaintiff proves that, the defendants have executed an agreement of sale with respect to the suit schedule property and received an advance amount of Rs.1,20,000/- on 28.09.2002?
2. Whether the plaintiff proves that he is always ready and willing to perform his party of contract?
3. Whether the plaintiff is entitled for specific performance of contract?
4. Whether the defendants prove the suit as brought is not maintainable?
5. What decree or order?”
7. To prove the case of the plaintiff, the plaintiff got examined himself as PW.1 and two more witnesses as PWs 2 and 3 and got marked 14 documents as per Exs.P.1 to 14. On behalf of the defendants, defendant No.2 got examined himself as DW.1 and two more witnesses as DWs.2 and 3 and got marked two documents as per Exs.D.1 and D.2. After considering the evidence on record, the Trial Court answered issue Nos.1 to 3 in the affirmative and issue No.4 in the negative and ultimately decreed the suit directing the defendants to execute the sale deed by receiving the balance sale consideration vide order dated 08.04.2010.
Assailing the said judgment and decree, the defendants approached the First Appellate Court by filing an appeal in RA No.171/2010. During the pendency of the appeal, the defendants also filed an application under Order 41 Rule 27 of CPC seeking permission of the Court to produce two Xerox copies of the agreement as additional evidence, which came to be rejected by the First Appellate Court and after hearing the arguments, the First Appellate Court dismissed the appeal by confirming the judgment and decree of the Trial Court vide judgment dated 11.04.2011. Assailing the judgments of both the Court below, the defendants are before this Court in this second appeal.
8. Learned counsel for the appellants-defendants strenuously contended that both the Court below committed error in decreeing the suit of the plaintiff even though the plaintiff was not ready and willing to perform his part of the contract by paying the balance sale consideration within the prescribed time. Even though the defendants appeared before the Sub-Registrar office more than once, the plaintiff did not turn up, but obtained time for making payment. Such being the case, the Courts below ought to have dismissed the suit of the plaintiff. It is further contended that when the plaintiff himself sought alternative relief of refund of earnest money, the Trial Court ought to have granted the alternative relief of refund of earnest money but decreeing the suit is not warranted. Therefore, prayed for allowing the appeal and to set aside the judgments of the Courts below.
9. Per contra, learned counsel for the respondent- plaintiff contended that the document Ex.P.1 agreement of sale has been admitted by the defendants in the written statement as well as in the reply notice. The amount of Rs.1,20,000/- has been received by defendant No.1 and subsequently the notice issued by the plaintiff was not replied and the defendants did not appear before the Sub- Registrar and the reply was given on 16.03.2003. Thereafter, the plaintiff got issued another notice on 07.04.2003. It is thereafter the defendants issued Ex.D.2 legal notice on 28.04.2003 by cancelling the agreement of sale. The plaintiff was always ready and willing to perform his part of the contract throughout by issuing notice and getting money, but the defendants were not ready.
Absolutely there is no substantial question of law involved in this appeal and even time is not the essence of the contract on the part of he plaintiff to get executed the sale deed except paying the sale consideration. There is no error or illegality committed by the Trial Court while allowing the suit and the First Appellate Court after re- appreciating the evidence on record and the copy of the agreement produced by the defendants towards additional evidence by filing an application under Order 41 Rule 27 of CPC. Even if it was allowed that will not clinch the issue. That is also an agreement of sale executed in favour of the plaintiff. Such being the case, those documents are not necessary for deciding or determining the dispute in question. Therefore, the First Appellate Court rightly dismissed the application. That apart, learned counsel for the plaintiff also contended that there is no pleading in the written statement, but the defendant No.1 not entered into the witness box, whereas defendant No.2 entered into the witness box and took a plea which is contradictory to the effect that the property does not stand in the name of defendant No.1 and another contention that an amount of Rs.1,00,000/- has been received as advance but not Rs.1,20,000/-. Both the pleas were rejected by the Trial Court and he has contended that there is no substantial question of law involved to admit the present appeal. Hence, prayed for dismissal of the appeal.
10. Upon hearing learned counsel for the parties and on perusal of the records, it is clear that it is an admitted fact that the plaintiff and defendants entered into the agreement of sale dated 28.09.2002 and the defendants agreed to sell the suit schedule property to the plaintiff for the sale consideration of Rs.2,50,000/-. As per the terms of the agreement, the sale deed was required to be executed on or before 26.02.2003. There is no recital in the agreement of sale Ex.P.1 that, time is the essence of the contract. Even though there is time limit mentioned in the agreement of sale to execute the sale deed on or before 26.02.2003, it does not reveal that time is essence of the contract. It is also well settled by the Hon’ble Apex Court in the case of Smt.Chand Rani (Dead) by LRs vs. Smt.Kamal Rani (Dead) by LRs reported in AIR 1993 SC 1742 that in case of sale of immovable property, time is not the essence of the contract. Here in this case, the defendants nowhere pleaded in the written statement that time is the essence of the contract. On the other hand, the written statement of the defendants goes to show that the plaintiff was not ready and willing to perform his part of the contract even though the defendants came to the Sub-Registrar office thrice. Admittedly, the plaintiff got issued the legal notice on 27.02.2003 as per Ex.P.3 calling the defendants to appear before the Sub-Registrar on 10.03.2003. Such being the case, the question of defendants going to the Sub-Registrar’s office and waiting till 6.00 p.m. in the evening on 17.02.2003 does not arise. That apart, again it is stated that on 10.03.2003, the defendants went to the Sub-Registrar’s Office at 10.00 a.m. and the plaintiff came to the Sub-Registrar Office at 11.00 a.m. and expressed his inability to pay the balance sale consideration and assured that he would adjust the amount within 1.30 p.m., but did not turn up till 6.00 p.m. and further taken the contention that the defendants promptly appeared in the Sub-Registrar office on 07.04.2003 and waited till the evening. The very contention of the defendants is not acceptable since the plaintiff got issued the second notice only on 07.04.2003. The said notice would have been served on the defendants only on subsequent days. Such being the case, the question of defendants appearing before the Sub- Registrar’s office on 07.04.2003 does not arise and cannot be believed. That apart, in the evidence, the defendant No.2 has taken the contention that the property in question was not at all standing in the name of defendant No.1 and she was not the owner of the property. In this regard, the plaintiff has produced Ex.P.8 registered partition deed of defendant No.1, which shows that as on the date of the agreement, defendant No.1 got her share under the partition held in her family in the year 2001 itself. Such being the case, the question of taking the contention that defendant No.1 had no right title to execute the sale deed is not acceptable. That apart, the defendant Nos.1 and 2 themselves have executed the agreement of sale and the execution of the agreement of sale has been proved by the plaintiff by examining the attestor of the agreement and the signature of defendant Nos.1 and 2 are also proved by marking the signatures. There is contradiction in the pleadings and evidence of the defendants in respect of the ownership of the property of defendant No.1, which cannot be accepted.
11. Another contention raised by the defendants in the evidence is that they received only Rs.1,00,000/- and not Rs.1,20,000/-. When the agreement is accepted and they took the plea that the plaintiff failed to prove his readiness and willingness, except the readiness and willingness, there is no other pleading on the side of the defendants. Such being the case, when date is fixed for execution of the sale deed on 26.02.2003, the defendants failed. Thereafter, the plaintiff got issued the legal notice calling upon the defendants to execute the sale deed and to appear before the Sub-Registrar on 16.03.2003. Whereas, except denying in the pleadings, there is no other evidence available on the part of the defendants to show that the plaintiff failed to prove his readiness and willingness. It is well settled by the Hon’ble Apex Court in the case of Azhar Sultana vs. B.Rajamani and others, reported in AIR 2009 SC 2157 that the plaintiff need not show the consideration amount in his custody to get the sale deed executed, whereas it is pleaded throughout in the notice as well as in the pleadings, that the plaintiff was ready and willing to perform his part of the contract. The denial of appearance before the Sub-Registrar’s office is only oral evidence, which cannot be acceptable. The defence taken by the defendants in the notice is contrary to the pleadings and the contentions in the written statement. On perusal of the entire evidence on record and the documents, it would go to show that the plaintiff was ready and willing, whereas the defendants failed to appear and execute the sale deed, but taken contrary pleadings and the evidence, which is not permissible. Therefore, in my opinion, absolutely there is no illegality or error committed by both the Court below in appreciating or re-appreciating the evidence. Even the First Appellate Court has rightly considered the document, i.e. Xerox copies of the agreement, which is not at all necessary for the First Appellate Court to decide the issue in question. When Ex.P.1-Sale agreement is admitted by the defendants, the question of producing new document is not necessary. Therefore, the First Appellate Court has rightly considered the application under Order 41 Rule 27 of CPC and dismissed the same. Absolutely, there is no substantial question of law involved to admit this appeal. The appeal being devoid of merit is liable to be dismissed.
Accordingly, the appeal is dismissed.
SD/- JUDGE mv