IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.1504 of 2017 (SP) Between:
MAHADEVSWAMY SON OF LATE DODDAVERAPPANA MAHADEVAPPA, RESIDING AT KAGALVADI VILLAGE, CHANDAKAVADI HOBLI, CHAMARAJANAGAR TALUK AND DISTRICT PIN – 571 313 (BY SRI R.R.SACHIN, ADVOCATE) And:
M.JAGADISH SON OF HASANUR MAHADEVAPPA, AGED ABOUT 42 YEARS, RESIDING AT KAGALVADI VILLAGE, CHANDAKAVADI HOBLI, CHAMARAJANAGAR TALUK AND DISTRICT PIN – 571 313 ... APPELLANT ... RESPONDENT (BY SMT.S.SUMATHI, ADVOCATE FOR SRI A.M.SURYA PRAKASH, ADVOCATE FOR CAVEAT-RESPONDENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED: 26.04.2017 PASSED IN R.A.NO.09/2011 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA, SITTING AT KOLLEGALA PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 22.11.2010 PASSED IN O.S.NO.35/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM., CHAMARAJANAGAR.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendant in O.S.No.35/2007 on the file of the Civil Judge (Senior Division) and CJM., Chamarajanagar (for short, ‘the civil Court’) calling in question the judgment in the first appeal filed by the respondent in R.A.No.09/2011 on the file of the Additional District and Sessions Judge, Chamarajanagara, sitting at Kollegala (for short, ‘the appellate Court’).
2. The respondent’s suit for specific performance based on suit agreement dated 13.12.2002 is partly decreed by the civil Court by its judgment dated 22.11.2010 rejecting the prayer for specific performance but declaring that the respondent is entitled for refund of a sum of Rs.1,00,000/- paid as consideration along with interest at the rate of 18% per annum. The respondent, being aggrieved by the civil Court’s judgment preferred the first appeal in R.A.No.9/2011, and the appellate Court by its impugned judgment dated 26.04.2017 has interfered with the civil Court’s judgment holding that the respondent is entitled for specific performance and directed the appellant to execute the sale deed for the subject property in favour of the respondent within three months with liberty to the respondent to proceed under Order XXI Rule 32 of CPC if the appellant fail to execute the same 3. The respondent filed the suit for specific performance relying upon the agreement of sale dated 13.12.2002, and the case of the respondent could be summarized thus:-
3.1 The appellant is his nephew, and he is the absolute owner of the residential property which is described in the plaint schedule. The appellant executed the agreement of sale dated 13.12.2002 in his favour agreeing to sell the subject property for a total sale consideration of Rs.1,00,000/- The appellant executed the sale agreement to discharge his legal necessities. The respondent is in possession of the suit schedule property, and he also has the custody of the original sale deed dated 14.02.2001 under which the appellant purchased the suit schedule property. The appellant did not execute the sale deed despite repeated demands and was evasive in his response. As such, the respondent issued legal notice dated 27.03.2007 calling upon the appellant to execute the sale deed stating that he is ready and willing to complete the transaction.
4. The appellant contested the suit, and his defence essentially is based on the denial of the sale agreement asserting that he had affixed his signatures on blank papers when he availed a loan from the respondent and these blank papers with the signatures were handed over as surety loan. The appellant handed over such papers in confidence. But, the respondent has created the agreement of sale misusing these papers. The appellant also denied that the respondent had called upon him to execute the sale deed. The other defence as against the grant of specific performance is that the suit is barred by limitation.
5. The civil Court based on these pleadings cast Issues which required the respondent to prove due execution of the agreement of sale, his ready and willingness and his entitlement for grant of specific relief, while the defendant is required, in terms of issue No.3, to prove that the suit is barred by limitation. The respondent examined himself as PW.1 and eight other witnesses. The scribe of the agreement is examined as PW.2, and attesting witnesses have been examined as PW.5 and PW.6. The other witnesses are those who have spoken about being present at the time of the execution of the sale agreement and the respondent being in possession of the suit schedule property. In fact, the attesting witnesses viz., PWs.5 and 6 turned hostile, and the respondent was permitted to cross-examine them. The appellant examined himself as DW.1 and marked Exs.D1 to D10, which included photographs/negatives, ration cards, mortgage deed and the deed of redemption of mortgage.
6. The civil Court, on appreciation of evidence has concluded that the respondent is able to establish the due execution of the agreement, and has also concluded that the appellant is not bona fide in his defence that he had affixed his signature in blank papers and handed over those blank papers reposing confidence. The civil Court has further concluded that payment consideration by the respondent to the appellant is proved. However, the civil Court has refused specific performance because it concluded against the respondent as against hardship in terms of Issue No.4. The civil Court relied upon the photographs produced by the appellant to conclude that the appellant had constructed a compound wall with the names of his nephew and niece viz., his brother’s children. The fact that the names of nephew and niece are found on the compound implies that his brother also has some interest in the subject property, and if the relief for specific performance is granted against the appellant, the appellant’s brother would be put to hardship and that would also lead to multiplicity of proceedings.
7. The respondent being aggrieved by this judgment filed the first appeal in R.A.No.09/2011 on the file of the Additional District and Sessions Judge, Chamarajanagara, (sitting at Kollegala). The appellate Court on re-appreciation of the evidence, has concurred with the finding of the civil Court on the due execution of the agreement and payment of sale consideration. The appellate Court has also found that the respondent is able to demonstrate that he is put in possession of the subject property in part performance of the sale agreement. As regards the question of the respondent being entitled for specific performance, the appellate Court has considered the same in the light of the provisions of Section 20 of the Specific Relief Act, 1963 after an elaborate discussion. The appellate Court has concluded that the appellant has neither pleaded hardship nor unfair advantage to the respondent if specific performance is granted, nor that the grant of specific performance would result in hardship to the appellant which he did not foreseen, nor that it would be inequitable. The only defence pleaded, and pursued even in evidence by the appellant, is that he had not executed the sale agreement and it is a fabrication by the respondent. Therefore, the appellate Court has concluded that the appellant has neither pleaded nor established the necessary ingredients as required under the said Section of the Specific Relief Act, 1963, for exercise of discretion to refuse specific performance, and as such, the civil Court could not have refused specific performance and granted the alternative prayer for refund of the sale consideration with interest at the rate of 18% per annum.
8. The learned counsel for the appellant argued that the appellate Court could not have granted the relief of specific performance modifying the judgment of the civil Court because the respondent’s suit is delayed and there are also laches in filing the suit. The learned counsel emphasized that it is undisputed that the agreement is executed on 13.12.2002 and no time line is contemplated under the agreement for completion of the transaction. The only communication by the respondent calling upon the appellant to execute the sale deed is on 27.03.2007, and this communication is by way of a legal notice caused on behalf of the respondent. This legal notice is issued after 4 years and 3 months from the date of the agreement. The appellate Court ought to have considered the aforesaid circumstances to ascertain whether the respondent’s suit for specific performance suffered from delay and laches.
9. The learned counsel in support of this proposition relied upon the decision of the Hon’ble Supreme Court in K.S.Vidyanadam and Ors. V.Vairavan reported in AIR 1997 SCC 1751, and the decision of this Court in R.Narayanaswamy V. A.V.Narayana Swamy reported in 2016(2) Kar. L.R.474 and another decision of this Court in Manjegowda V. M.R.Manjegowda and Others reported in ILR 2013 KAR 147. The learned counsel relied upon these decisions to buttress his argument that though no time is prescribed for the completion of the transaction under a sale agreement, the plaintiff who seeks specific performance will have to file a suit within a reasonable time. If such suit is not filed within reasonable time from the date of the agreement, the plaintiff will not be entitled for specific performance. In which event, the discretion under Section 20 of the Specific Relief Act, 1963 should be exercised for refusal of specific performance. As such, the civil Court’s judgment is justified and interference by the appellate Court is impermissible in law.
10. There cannot be any dispute about the legal propositions canvassed by the learned counsel for the appellant and these propositions are rather well settled. However, the question in this present appeal would be whether such propositions would apply in the facts and circumstances of this case and the answer will have to be against the appellant. There is no dispute that the appellant did not take up the defence on delay and laches in his written statement nor led any evidence in support of the same. There is no foundation in the pleadings, and without the necessary pleadings and evidence by the appellant in this regard, these questions cannot be canvassed for the first time in this appeal. The appellant cannot for the first time in this appeal be permitted to rely upon certain circumstances to contend that the respondent’s claim for specific performance should be refused on the ground of delay and laches.
11. The learned counsel submits that there is no reasonable explanation to justify the delay of over four years in filing the suit except the respondent’s own testimony that he was repeatedly calling upon the appellant to execute the sale deed. However, this canvass will have to be tested as against the undisputed fact that the respondent is put in possession of the property and the appellant does not contest the finding against him by the civil Court as regards the due execution of the sale agreement and passing of sale consideration as well as the respondent’s ready and willingness. Further, the appellant does not dispute that he is served on 29.03.2007 with the legal notice dated 27.03.2007 and he has not issued any reply in response to such legal notice. Furthermore, the appellant has not spoken about the reasons for the respondent continuing in possession of property for over 4 years without any claim from him. These circumstances do not render themselves to a reasonable inference that there are laches in filing the suit. In any event, as already discussed, these questions cannot be gone into without necessary pleadings and evidence by the appellant. Therefore, there is no substantial question of law involved in the appeal. Accordingly, the appeal is dismissed.
Sd/- Judge KPS