IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI REGULAR SECOND APPEAL NO.542 OF 2008 C/W RSA CROSS OBJECTION NO.10 OF 2010 IN RSA No.542/2008 BETWEEN:
SRI THIMMEGOWDA S/O THIMMEGOWDA AGED ABOUT 56 YEARS, R/AT GANGANAHALLI VILLAGE, KASABA HOBLI-571 426 K.R.PET TALUK, MANDYA DISTRICT. ….APPELLANT (BY SRI. A S MAHESHA, ADVOCATE) AND:
1. SMT SIDDAMMA @ THAYAMMA W/O LATE SANNAPPA MAJOR 2. SRI RANGASWAMY S/O LATE SANNAPPA MAJOR 3. H S MANJUNATH S/O LATE SANNAPPA MAJOR, RESPONDENTS 1-3 ARE RESIDING AT HIRIKOLALI VILLAGE KASABA HOBLI, K.R.PET TALUK-571 426, MANDYA DISTRICT.
….RESPONDENTS (BY SRI.G B NANDISH GOWDA, ADVOCATE FOR R-1 TO R-3) THIS RSA IS FILED UNDER SECTION 100 OF C.P.C AGAINST THE JUDGMENT AND DECREE DATED 16.11.2007 PASSED IN R.A.NO.24 OF 2007 ON THE FILE OF THE CIVIL JUDGE, (SR. DVN), KRISHNARAJA PETE, DISMISSING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 13.3.2007 PASSED IN OS 23 OF 2000 ON THE FILE OF THE CIVIL JUDGE, (JR. DN.) AND JMFC., K.R.PET.
IN RSA CROB No.10/2010 BETWEEN:
1. SMT SIDDAMMA @ THAYAMMA W/O LATE SANNAPPA AGED ABOUT 60 YEARS 2. SRI RANGASWAMY S/O LATE SANNAPPA AGED ABOUT 20 YEARS 3. H S MANJUNATH S/O LATE SANNAPPA AGED ABOUT 18 YEARS ALL ARE RESIDING AT HIRIKOLALI VILLAGE KASABA HOBLI, K.R.PET TALUK-571 426, MANDYA DISTRICT.
….CROSS OBJECTORS (BY SRI.G B NANDISH GOWDA, ADVOCATE ) AND:
SRI THIMMEGOWDA S/O THIMMEGOWDA AGED ABOUT 56 YEARS, R/AT GANGANAHALLI VILLAGE, KASABA HOBLI-571 426 K.R.PET TALUK, MANDYA DISTRICT …. RESPONDENT (BY SRI. A S MAHESHA, ADVOCATE) THIS RSA CROSS OBJECTION FILED IN RSA No.542 OF 2008 UNDER ORDER XVI RULE 22 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.11.2007 PASSED IN RA NO.24 OF 2007 ON THE FILE OF THE CIVIL JUDGE (SR. DVN) K.R.PET, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 13.3.2007 PASSED IN OS.NO. 23 OF 2000 ON THE FILE OF THE CIVIL JUDGE (JR. DVN) AND JMFC., K.R.PET.
THESE REGULAR SECOND APPEAL AND CROSS OBJECTION COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The plaintiff is the appellant. The defendants are the respondents.
2. The suit was one for passing of a decree for specific performance of an agreement dated 26.9.1990. The Trial Court decreed the suit in part and refused to grant the relief of specific performance and directed the defendant to return the earnest money together with interest at the rate of 6% p.a. from the date of execution of the document i.e. 26.9.1990 till the date of realization.
3. The plaintiff aggrieved by the judgment and decree passed by the trial Court in refusing to grant specific performance of contract filed R.A.No.24/2007 before the Civil Judge (Sr.Dn.) Krishnarajpet. The Appellate Court dismissed the appeal and also set aside the judgment and decree of the trial Court passed in O.S.No.23/2000 dated 13.3.2007 granting refund of earnest money with interest at the rate of 6% p.a. without there being any cross objection or cross appeal by the defendant.
4. Brief facts of the case are :-
That the defendants are the owners of the suit schedule property. Defendants agreed to sell the suit schedule property to the plaintiff for a consideration of Rs.10,000/- and received a sum of Rs.8,000/- as advance in part performance of the contract and plaintiff was put in possession of the suit property by executing agreement of sale on 26.9.1990. Ever since the date of agreement of sale, the plaintiff has been in possession and enjoyment of the same and he has made it fit for cultivation by spending heavy amount. The suit schedule property was the land granted to one Sannappa, husband of defendant No.1 and father of other defendants. Saguvali chit was issued on 6.6.1979 wherein there is a condition prohibiting sale for a period of 15 years. The defendants agreed to execute a sale deed after the expiry of said period by receiving balance sale consideration of Rs.2,000/-. The defendants handed over the original grant certificate to the plaintiff in part performance of the agreement apart from handing over the possession. The defendants are interfering with the peaceful possession and enjoyment over the suit schedule property and plaintiff further contends that he was ready and willing to perform his part of contract but the defendants were not ready to accept the balance consideration amount. Hence, the plaintiff has issued a legal notice calling upon the defendants to execute registered sale deed by receiving balance consideration amount.
4.1. Inspite of service of notice, the defendants did not execute the registered sale deed in favour of the plaintiff. Hence, the plaintiff was constrained to file a suit for specific performance of contract.
4.2. Defendants appeared and filed written statement denying the very execution of agreement of sale in favour of the plaintiff and also denied regarding receiving of part consideration amount and further denied that they have not executed agreement of sale in favour of the plaintiff as averred in the plaint. That as on 26.9.1990 defendants 2and 3 were minors and the suit filed by the plaintiff is barred by limitation and sought for dismissal of the suit.
4.3. The trial Court on the basis of the pleadings has framed the following issues :-
1. Whether the plaintiff proves the execution of the sale agreement dated 26.9.1990 as contended in para 1 of the plaint ?
2. Whether the plaintiff proves that he was put in possession and enjoyment of the suit schedule property as contended ?
3. Whether the plaintiff proves that he has been ready and willing to perform his part of contract ?
4. Whether the plaintiff proves that he has demanded for execution of the sale deed in terms of the sale agreement dated 26.9.1990 but the defendants have refused for the same?
5. Whether the defendants prove that the suit is not properly valued and the court fee paid is insufficient ?
6. Whether the defendants prove that the suit is barred by limitation ?
7. Whether the plaintiff proves that he is entitled for the relief of specific performance of the contract as prayed for ?
8. What order or decree ?
4.4. The plaintiff examined himself as PW1 and examined three witnesses as PWs 2 to 4 and got marked documents exhibits P1 to P8. In rebuttal, defendant No.1 examined herself as DW1 and two witnesses as DWs 2 and 3 and got marked documents exhibits D1 to D7. The trial Court held that the plaintiff has proved execution of agreement of sale dated 26.9.1990 and also held that defendants have delivered possession of the suit property to the plaintiff; plaintiff was ready and willing to perform his part of contract and further the plaintiff has proved that he has demanded for execution of the sale deed in terms of the agreement of sale dated 26.9.1990 and the defendants have refused to execute the sale deed and answered issue Nos.1 to 4 in the affirmative. So far as issues Nos.5 to 7 are concerned, are answered in the negative holding that defendants have failed to prove that suit is not properly valued and court fee paid is insufficient and held that the suit is filed within the time. But held that the plaintiff is not entitled for specific performance of contract and decreed the suit in part.
4.5. The plaintiff aggrieved by the judgment and decree of the trial Court in refusing to grant specific performance of contract filed R.A.No.24/2007 before the Civil Judge (Sr.Dn.) Krishnarajpet. The Appellate Court has framed the following points for consideration :
1. Whether the trial Court erred in not granting the relief of specific performance ?
2. Whether the trial Court erred in appreciating the evidence available on record ?
3. Whether the suit is barred by limitation ?
4. Whether the judgment and decree of the trial Court calls for any modification at the hands of this court ?
5. What order ?
And held that though the plaintiff is entitled for the relief of specific performance, but the suit is barred by limitation and set aside the judgment of the trial Court granting relief in respect of the refund of earnest money without there being cross objection or appeal.
4.6. Being aggrieved by the judgment and decree dated 16.11.2007 passed by the First Appellate Court, the plaintiff has filed the present appeal.
5. This court has admitted the appeal on the following substantial questions of law :-
1. Whether the trial Court at the first instance was justified in decreeing the suit partly only towards refund of the EMD amount even though all the issues had been held in favour of the plaintiff ?
2. Whether the lower Appellate Court was justified in dismissing the appeal by reversing the finding of the trial Court on issue No.6 in the absence of challenge to the finding on the said issue by the defendants before the lower Appellate Court ?
6. Heard the arguments of the learned counsel for the parties.
7. Ex.P1 is the agreement of sale dated 26.9.1990 and the plaintiff has paid a sum of Rs.8,000/- to the defendants as part of the sale consideration amount and Ex.P1 does not contain any recital with regard to time for performance of contract. In the plaint it has been stated that no time limit was fixed, within which the obligation was required to be fulfilled, and the defendants were not willing to perform their part of obligation and the only obligation on the part of the plaintiff was to get absolute sale deed executed and when the plaintiff approached the defendants to execute sale deed, the defendants refused to execute the sale deed and defendants were not ready and willing to perform their part of contract and that the cause of action for filing the suit arose after service of legal notice issued by the plaintiff to the defendants.
8. It is indisputably that after the execution of the agreement-Ex.P1, the plaintiff did not issue any notice to the defendants after the expiry of alienation period. From the year 1994 till the year 2000, plaintiff did not issue any legal notice to the defendants to execute the registered sale deed and complete the sale transaction. The plaint is vague with regard to the plaintiff having approached the defendants to execute sale deed after the expiry of alienation period though the plaintiff has pleaded that he was ready and willing to perform his part of contract to obtain the sale deed and the defendants did not come forward to execute the sale deed after the expiry of alienation period. If the defendants did not come forward to execute the registered sale deed or complete the transaction, nothing prevented the plaintiff from issuing notice calling upon the defendants to execute the sale deed.
9. Article 54 of the Limitation Act prescribes three years as the period within which the suit for specific performance can be filed and the period calculated from the dates specified in the agreement of sale or in the absence of any such stipulation, within three years from the date of performance was refused.
10. At the cost of repetition as observed above, the alienation period expired in the year 1994. So the date of performance fixed to execute the registered sale deed is, after the expiry of alienation period. The cause of action arose for the plaintiff to file the suit is, after the expiry of alienation period i.e. 1994. But in the present case, the plaintiff has filed the suit on 8.2.2000 i.e. almost all after the expiry of six years i.e. including the time limit specified in the agreement. From the decision in the case of SMT. CHAND RANI (DEAD) BY LR’S VS. SMT. KAMAL RANI (DEAD) BY LR’S reported in 1993(1) SCC 519, it can be seen that the Court should look into all the relevant circumstance including the time specified in the agreement and determine as to whether its discretion to grant specific performance should be exercised.
11. When the contract is for the sale of immovable property, vendor must give a reasonable notice requiring the performance within a definite time and the fact that the plaintiff has asked for the relief which is permissible under Section 19 of the Specific Relief Act, 1963 does not prejudice his right to get a decree for specific performance.
12. In the present case, the suit property is an agricultural land measuring 2 acres 21 guntas situated at Ganganahalli Village, Kasaba Hobli, K.R. Pet Taluk, Mandya District and the agreement Ex.P1 was entered on 26.9.1990. The agreement did not contain the period within which the sale transaction would be complete. The plaintiff having agreed to pay the agreed amount, ought not to have been kept quite for six years and filed the suit on 8.2.2000 without even making a demand in writing for specific performance of the contract. The period between the date of execution of Ex.P1 and the date on which the suit was instituted is more than 9 years. The plaintiff having paid the sale consideration amount, should have completed the sale transaction within a reasonable period from the date of execution of Ex.P1 which was executed on 26.9.1990. Thus, there is a delay on the part of the plaintiff in performing his part of the contract and there is total inaction on the part of the plaintiff for more than 9 years i.e., from date of execution of Ex.P-1.
13. A person who has entered into an agreement to purchase an item of immovable property and paid substantial consideration amount shown in the document, if was ready and willing to complete the said sale transaction, he would not have kept quite for more than 9 years. The delay has not been explained. The delay has brought about a situation where it would be inequitable to grant the relief of specific performance of the contract to the plaintiff.
14. There being no explanation offered by the plaintiff for the inaction on his part for more than 9 years, the trial Court was justified in rejecting the claim for specific performance of contract and was justified in passing the decree for refund of amount. The Trial Court by exercising discretion under Section 20 of the Specific Relief Act has decreed the suit in part and granted the relief by directing the defendants to return the earnest money.
15. The learned counsel for the plaintiff/appellant has relied upon the judgment in AHMADSAHAB ABDUL MULLA (2) (DEAD) BY PROPOSED LRs - vs - BIBIJAN AND OTHERS reported in (2009) 5 Supreme Court Cases 462 wherein it is held in paragraph 11 as under :
“11. The inevitable conclusion is that the expression “date fixed for the performance” is a crystallized notion. This is clear from the fact that the second part “time from which period begins to run” refers to a case where no such date is fixed. To put it differently, when date if fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on “when the plaintiff has notice that performance is refused”. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So there is no question of finding out an intention from other circumstances.”
16. In the present case, there is a recital in the agreement of sale that after the expiry of alienation period, the defendants should execute the sale deed. So the date of performance was fixed in Ex.P1 i.e. after the expiry of alienation period.
17. As per Article 54 of the Limitation Act, when the date is fixed for specific performance of the contract, the suit ought to have been filed within three years. But in the present case, the plaintiff has not filed the present suit within three years from the date of refusal. The lower Appellate Court has rightly held that the suit filed by the plaintiff is barred by limitation. The trial Court by exercising discretion under Section 20 of Specific Relief Act has granted refund of the EMD amount.
In view of the aforesaid discussion, I answer the substantial question of law No.1 in the affirmative.
18. As far as substantial question of law No.2 is concerned, that Appellate Court has committed an error in setting aside the decree granted by the trial Court without there being any Cross Objection or Appeal. The defendants have accepted the findings given by the trial Court. The Appellate Court has committed an error in setting aside the finding of the trial Court on issue No.6. In the absence of challenge to the said findings, the First Appellate Court by exercising power under Order 41 Rule 22 of C.P.C, has set aside the findings of trial court on issue No.6.
19. As observed above, the defendants/cross objectors have not challenged the findings of the trial Court before the Appellate Court and when the defendants had not challenged the findings on issue No.6 (i.e. whether the defendants have proved that the suit is barred by limitation?) before the first Appellate Court, they have no right to challenge the findings in the second appeal by filing Cross Objection.
20. The first Appellate Court could not have, in the purported exercise of power under Order XLI Rule 33 of C.P.C., reversed the decree of the trial Court in respect of refund of money without there being any appeal or cross objection preferred by the respondents. The Appellate Court has set aside the decree for refund of amount passed by the trial court.
21. This would require reference to the principles underlying ‘right to file an appeal’ and ‘right to cross- objection’ or ‘when does it become necessary to prefer cross-objection’, without which decree under appeal cannot be altered or varied to the disadvantage. Rule 22 of Order XLI, as amended by C.P.C Amendment Act 104 of 1976 with effect from 1.2.1977, is reproduced hereunder in Juxtaposition with the text of the provisions as it stood prior to the amendment.
ORDER XLI RULE 22 CPC Text as amended by Act 104/1976 (w.e.f 1-2-1977) Text pre-amendment Rule 22. Upon hearing respondent may object to decree as if he had preferred a separate appeal-
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the findings against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
(2) & (3) xxx xxx xxx (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
22. Sections 96 and 100 of C.P.C make a provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively. None of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal, the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree, he is not entitled to file an appeal.
23. C.P.C Amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order XLI Rule 22, sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However the insertion made in the text of sub-rule (1) makes it permissible to file a cross objection against a findings. The difference which has resulted, I will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour. However, if he proposes to attack any part of the decree, he must take cross- objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:-
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
24. In the type of case (i), it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him. If he seeks to get rid of the same though that part of the decree which is in his favour, he is entitled to support without taking any cross-objection.
25. The law remains so in post amendment too. In the type of cases (ii) and (iii), pre-amendment CPC did not entitle nor permit the respondent to take any cross- objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any findings adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection, the amendment made in the text of sub-rule(1), read with explanation newly inserted, gives him right to take cross objection to a finding recorded against him either while answering an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default, the cross-objection taken to any findings by the respondent shall still be available to be adjudicated upon on merits, which remedy was not available to the respondent under the unamended CPC. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.
26. The fact remains that to the extent to which the decree is against the respondent and if he wishes to get rid of it, he should have either filed an appeal on his own or taken cross objection, failing which, the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage.
27. In the present case, the plaintiff filed the suit for specific performance claiming the relief of specific performance or any other relief including the refund of money. The trial Court decreed the suit of the plaintiff in respect of refund of amount and refused to grant the decree for specific performance.
28. The plaintiff would be a person aggrieved by the decree granted to him by the trial court, in spite of one of the alternative reliefs granted to him is a smaller relief and the larger relief has been denied to him. The defendant would not be a person aggrieved to the extent. It follows as a necessary corollary from the aforesaid statement of law that in an appeal filed by the plaintiff laying challenge to the refusal of specific performance, the defendant as a respondent cannot seek relief of modification of impugned decree except by filing an appeal of his own or by taking cross-objection.
29. I am of opinion that in the absence of cross- appeal preferred or cross objection taken by defendants- respondents, the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeal preferred by the appellant, the first Appellate Court could have either allowed the appeal and dismissed the suit filed by plaintiff is its entirety or could have maintained the decree as it was passed by dismissing the appeal. What the First Appellate Court has done is, it has not only dismissed the appeal filed by plaintiff but has also denied the decree for refund of amount granted to the plaintiff to the advantage of respondents/defendants, who have neither filed an appeal nor taken any cross objection. The First Appellate Court ought not to have, while dismissing the appeal filed by Appellant before it, modified the decree which was in favour of the Appellant/plaintiff before it, in the absence of cross- appeal or cross-objection. Interference by the First Appellate Court has reduced the appellant/plaintiff to a situation worse than in what he would have been if he had not appealed.
For the foregoing reasons, I answer the substantial question of law No.2 in the negative i.e. against the defendants/respondents and in favour of the plaintiff/appellant.
30. For the foregoing reasons, I am of the opinion that the First Appellate Court has committed serious error in passing impugned judgment. Hence, I proceed to pass following:
ORDER The Regular Second Appeal 542 of 2008 filed by the plaintiff/appellant is allowed;
The order dated 16.11.2007, passed by the First Appellate Court i.e. the Court of Civil Judge (Sr.Dn.) Krishnaraja Pete, dismissing the appeal- R.A.No.24/2007 filed by the plaintiff/appellant, rejecting the relief granted by the trial Court i.e. the Court of the Civil Judge (Jr. Divn.) and JMFC, Krishnaraja Pete, is set aside and the judgment and decree of the trial Court dated 13.03.2007 is restored in regard to granting of EMD amount.
The Cross Objection 10 of 2010 filed by the defendants/respondents is dismissed.
Parties to bear their own costs.
SD/- JUDGE rs