Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.143/2007 BETWEEN:
K.B.NAGARATNAMMA SINCE DECEASED BY LRS 1(a). MR.M.S.SIDDALINGAPPA AGED ABOUT 68 YEARS R/AT NO.17, MADINA MASJID ROAD UDAYAGIRI 2ND STAGE MYSORE – 19 1(b). M.S.LAKSHMI W/O RECHANNA AGED ABOUT 38 YEARS R/AT NO.22, 1ST FLOOR, MATHRUSREE NILAYA SHAMANNAGARDEN CHUNCHAGHATTA MAIN ROAD BANGALORE 560 078 1(c). M.S.POORNIMA W/O S.RENUKASWAMY AGED ABOUT 35 YEARS R/AT NO.1036/31, SARVAJANIKA HOSTEL ROAD 3RD MAIN, VIDYARANYAPURAM MYSORE – 08 1(d). M.S.LATHA W/O R.ASHOK KUMAR AGED ABOUT 33 YEARS R/AT NO.61, SIDDALINGESHWARA LAYOUT 2ND MAIN, J.P.NAGAR MYSORE - 08 … APPELLANTS (BY SMT.SUNITHA M., ADV. FOR M/S S.M. ADVOCATES) AND:
MALLIKARJUNAPPA DEAD BY LRS 1. SMT.VIMALA WIFE, MAJOR 2. SRI MAHESHA AGED ABOUT 24 YEARS 3. MS.MAHESHWARI MINOR DAUGHTER REPRESENTED BY HER MOTHER GUARDIAN SMT.VIMALA ALL ARE R/O SATAGALLI VILLAGE KASABA HOBLI MYSORE TALUK MYSORE – 570 010 … RESPONDENTS (BY SRI G.BALAKRISHNA SHASTRY, ADV. FOR C/R) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2006 PASSED IN R.A.NO.166/2003 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.) AND CJM, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.12.2002 PASSED IN O.S.141/96 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (JR.DN.), MYSORE.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the plaintiff arises out of the judgment and decree dated 31.10.2006 in R.A.No.166/2003 passed by the II Additional Civil Judge (Sr.Dn.) and C.J.M., Mysore.
2. By the impugned judgment and decree, the First Appellate Court reversed the judgment and decree dated 18.12.2002 passed by the II Civil Judge (Jr.Dn.) and J.M.F.C., Mysore in O.S.No.141/1996 and directed the defendants to pay `5,000/- to the plaintiff with interest at 8% per annum from the date of the suit till its realization.
3. The Trial Court by the judgment and decree impugned before the First Appellate Court had decreed the suit of the plaintiff for specific performance of the contract.
4. The appellant was the plaintiff and respondents were the defendants before the Trial Court. For the purpose of convenience, parties will be referred to henceforth with their ranks before the Trial Court.
5. The subject matter of the suit was the land measuring 17½ guntas out of 30 guntas of Sy.No.248 of Hanchya village, Mysuru Taluk.
6. The case of the plaintiff in brief was as follows:
The original defendant Mallikarjunappa entered into an agreement of sale on 05.08.1994 in respect of the suit schedule property for his family necessity for a consideration of `45,750/- and received advance consideration of `5,000/-. Defendant agreed to execute the sale deed within six months by receiving the balance consideration. However, he did not execute the sale deed. He extended the time fixed under the agreement of sale on 31.01.1995, 08.03.1995 and 16.12.1995 on each occasion receiving `2,500/- as advance sale consideration. Despite demands and requests of the plaintiff, defendant failed to execute the sale deed. Contrary to that, he tried to alienate the property to others. Therefore, plaintiff filed O.S.No.93/1996 against the defendant before the Hon’ble Vacation Judge for permanent injunction to restrain the defendant from alienating the suit schedule property to others, which was later renumbered as O.S.No.136/1996. Later the suit on hand is filed for decree for the specific performance of the agreement of sale.
7. Initially, the suit was filed only against Mallikarjunappa, the alleged executant of the agreement. He did not file any written statement on his appearance. Pending the suit he died. Therefore, the present respondents were brought on record as his legal representatives. They filed written statement denying the execution of the agreement of sale. They denied the alleged necessity of deceased defendant to sell or receipt of consideration. They contended that on 05.08.1994 itself the defendant sold other part of the same Survey number to the plaintiff for `16,500/- Therefore, there was no legal necessity to sell the property. They also disputed the readiness and willingness on the part of the plaintiff and sought for dismissal of the suit.
8. On the basis of the above pleadings, the Trial Court framed the following issues:
“1) Whether the plaintiff proves that the deceased defendant has executed a sale agreement on 5.8.94 agreeing to sell the suit schedule land in favour of the plaintiff?
2) Whether the plaintiff proves that she has paid a sum of Rs.5,000/- towards the part payment of the sale consideration?
3) Whether the plaintiff proves that she was/is always ready and willing to perform the contract?
4) Whether the Legal Representatives of the deceased defendant prove that the plaintiff obtained the thumb impression of the deceased defendant on the alleged sale agreement?
5) Whether the plaintiff is entitled for the relief claimed in the plaint?
6) What order or decree?”
9. The parties adduced evidence. The Trial Court after hearing both parties decreed the suit holding that the plaintiff has proved execution of the agreement of sale, receipt of advance therein and readiness and willingness on the part of the plaintiff.
10. The defendants challenged the said judgment and decree before the First Appellate Court in R.A.No.166/2003. The First Appellate Court on hearing both the parties by the impugned judgment and decree held that the execution of the agreement of sale, readiness and willingness on the part of the plaintiff was not proved, but the payment of `5,000/- was proved. The First Appellate Court further held that the specific performance of the contract causes hardship to the defendants as their other properties were acquired by the Mysore Urban Development Authority. Thus reversed the judgment and decree of the Trial Court and dismissed the suit for specific performance and granted decree for recovery of `5,000/- with interest.
11. This Court admitted the appeal on 04.09.2008 to consider the following substantial questions of law:
“1. Whether the lower appellate court was in error in misinterpreting Ex.P2 and thereby reversing the judgment of the trial court on the basis of the finding on Ex.P2?
2. Whether the lower appellate court could have suo-moto refused specific performance in the absence of pleading with regard to hardship?
The following additional substantial question of law was framed on 25.11.2019:
“Whether the First Appellate Court acted contrary to Section 16(c) of the Specific Relief Act, 1963 in holding that the plaintiff has failed to plead and prove readiness and willingness on her part?
12. It is an admitted fact that on the very same day, the original defendant sold 10½ guntas of land in Sy.No.248 under the registered sale deed Ex.P4. The sole question was whether the defendant executed agreement of sale Ex.P2?
13. The original defendant did not file his written statement either in the suit in question or in O.S.No.136/1996. O.S.No.136/1996 was filed against the defendant Mallikarjunappa for permanent injunction against alienation of the property on the ground that he has entered into an agreement of sale with the plaintiff.
14. Smt.Sunitha.M., learned Counsel for the appellant/plaintiff contends that since the executant of Ex.P2 did not dispute the execution of the document nor alleged fraud, it is not open to his legal representatives to raise such plea.
It is her further contention that since the judgment and decree in O.S.No.136/1996 was not challenged, it was not open to the first appellate court to disbelieve Ex.P2, the agreement of sale.
15. Per contra, Sri.G.Balakrishna Shastry, learned Counsel for the respondents/defendants submits that, to invoke the principles of res judicata, on the basis of the judgment in O.S.No.136/1996, the plaintiff was required to produce the pleadings and the entire judgment and decree in the said suit, which was not done. Therefore, he contends that the said judgment and decree does not operate as res judicata against the legal representatives of original defendant.
16. So far as non-filing of the written statement or the ground of fraud pleaded by the legal representatives of original defendant, he contends that the burden of proving the execution of agreement of sale was on the plaintiff and she cannot rely on the weakness of the other side.
17. Referring to the evidence of PWs-1 to 4, more particularly PWs-1, 2 and 4, he submits that the said evidence was hopelessly poor in inspiring the confidence of the court, therefore, the first appellate court was justified in holding that the execution of Ex.P2 was not proved.
18. Though the trial court held that the oral and documentary evidence proves the execution of Ex.P2, the first appellate court referring to the evidence of PWs-1 to 4, documentary evidence and other circumstances held that the execution of agreement of sale was not proved.
19. The Hon’ble Supreme Court in Gurnam Singh – vs- Lehna Singh1 has held that in a second appeal under Section 100 of the Code of Civil Procedure, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; or (ii) Contrary to the law as propounded by the Apex Court; or (iii) Based on inadmissible evidence or no evidence.
20. Regarding bar for the present respondents to question the execution of the agreement, in the context of the judgment in O.S.No.136/1996, as rightly contended by the learned Counsel for the defendants, the plaintiff produced only Ex.P1 the copy of the decree and not even the judgment. Therefore, it was not known what was the plea of the plaintiff, what evidence she had adduced in the said case and what was the point raised for consideration Next >