Karnataka High Court
Siddanagouda S/O Bharmagouda @ ... vs Govindappa on 19 April, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:6587
RSA No. 2706 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 2706 OF 2007 (SP-)
BETWEEN:
SIDDANAGOUDA S/O. BHARMAGOUDA
@ BHARMAGOUDA PATIL,
AGE: 65 YEARS, OCC: RETIRED SCHOOL TEACHER,
R/AT: CHIKKA MULANGI,
TQ: RAMDURG DIST: BELAGAVI
PIN CODE-590002.
...APPELLANT
(BY SRI. KRISHNA KUMAR JOSHI, ADVOCATE AMICUS CURIAE)
AND:
GOVINDAPPA
S/O. BHIMARAYAPPA
METAGUDDA,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/AT: MARADAGI, TQ RAMDURG,
DIST: BELAGAVI.
Digitally
PIN CODE - 590002
signed by
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2024.06.04
15:39:03
...RESPONDENT
+0530
(BY SRI. B.M.ELIGAR FOR SOLE-RESPDT, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET-ASIDE
THE JUDGMENT AND DECREE DATED 21.08.2007 PASSED IN
R.A.NO.75/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
RAMDURG, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT
AND DECREE DATED 08.07.2003 PASSED IN O.S.NO.4/1997 ON THE
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NC: 2024:KHC-D:6587
RSA No. 2706 of 2007
FILE OF THE CIVIL JUDGE (JR.DN), RAMDURG, PARTLY DECREEING THE
SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is filed by the defendant challenging the judgment and decree dated 21.08.2007 passed in R.A.No.75/2007 by the Civil Judge (Senior Division), Ramadurg at Ramadurg by setting aside the judgment and decree dated 08.07.2003 passed in O.S.No.04/1997 by the Civil Judge (Junior Division) Ramadurg at Ramadurg.
2. For the sake of convenience, the ranking of the parties is referred to as per their status before the trial Court.
3. The plaintiff has filed the suit for specific performance of contract by contending that the defendant is owner of the suit schedule land and there was agreement of sale executed on 19.07.1982 for total sale consideration amount of Rs.13,000/- and the plaintiff has -3- NC: 2024:KHC-D:6587 RSA No. 2706 of 2007 paid balance sale consideration of Rs.12,500/- and the plaintiff was put into possession of the suit property, but later on the defendant refused to execute registered sale deed, therefore, the plaintiff has filed suit for specific performance of contract.
4. The trail Court has decreed the suit in part by granting decree of direction to the defendant to refund the earnest amount of Rs.12,500/- to the plaintiff with interest at the rate of 12% p.a from 19-07-1982.
5. Being aggrieved by this, the plaintiffs have filed regular appeal before the First Appellate Court and the First Appellate Court has decreed the suit of the plaintiffs in full by directing the defendant to execute registered sale deed after obtaining permission for raitawari land and after obtaining the same, to execute the sale deed in favour of the plaintiff by receiving the sale consideration amount of Rs.500/- by judgment and decree dated 21.8.2007.
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NC: 2024:KHC-D:6587 RSA No. 2706 of 2007
6. Being aggrieved by this the defendant has preferred this instant regular second appeal.
7. This Court on 14.11.2007 has framed the following substantial questions of law:
i) Whether the suit of the plaintiff is barred by Statute?
ii) Whether the lower appellate Court was justified in reversing the judgment and decree of the learned trial Court ?
8. The previous advocate for appellant filed no objection certificate to engage any other counsel and though Court notice to the appellant was issued, the appellant has not engaged any Advocate. Accordingly, Sri.Krishnakumar Joshi, Advocate is appointed as Amicus Curiae to assist the Court and he argued the case. He has submitted that decreeing the suit for specific performance of contract by the First Appellate Court is arbitrary and causing greater hardship to the defendant. -5-
NC: 2024:KHC-D:6587 RSA No. 2706 of 2007
9. He further submitted that decreeing the suit for specific performance of contract by the First Appellate Court is contrary to the provisions of law. Furthermore, decreeing the suit for specific performance of contract is unfair advantage on the plaintiff over the defendant and the First Appellate Court has not exercised it's discretion as per Section 20 of the Specific Relief Act, 1963 (For short the Act). Therefore, he prays to set aside the judgment and decree passed by the First Appellate Court.
10. On the other hand, learned counsel for the respondent/plaintiff submitted that the agreement of sale is proved and defendant has received earnest amount of Rs.12,500/-, but has not executed registered sale deed by receiving balance sale amount of Rs.500/- and this is rightly considered by the First Appellate Court. Therefore, prays to dismiss the present appeal.
11. The total extent of land put for sale as per agreement of sale dated 19.07.1982 is 1 acre 30 guntas satiated at Chikka mulangi village of Ramadurga taluk. -6-
NC: 2024:KHC-D:6587 RSA No. 2706 of 2007 The said land is Inam land. The total sale consideration amount is Rs.13,000/-. Just because execution of agreement of sale is proved that cannot be the sole ground to grant decree for specific performance of contract. Granting a relief of specific performance of contract is discretionary relief as per Section 20 of the Act.
12. The suit is filed on 7.01.1997 after nearly 15 years. As per Articles 54 of the Limitation Act, the limitation period for filing the suit for specific performance of contract is three years from the date fixed for performance or if, no such date is fixed, when the plaintiff has noticed that performance is refused. From 1982 to 1997, the plaintiff has kept quite and not requested the defendant to execute registered sale deed and only in the year 1997, the plaintiff has issued a legal notice to the defendant to execute sale deed. Therefore, it shows that the plaintiff has failed to prove that he was ready and willing to perform his part of contract. Thus, when there is no proof on the part of the plaintiff, as to how he was -7- NC: 2024:KHC-D:6587 RSA No. 2706 of 2007 ready and willing to perform his part of contract, then as per Section 16(C) of the Specific Relief Act, decree for specific performance of contract cannot be granted. Also, it is a defence of the defendant that the suit property is joint family property of the defendant and defendant cannot alienate the property exclusively and this is the only property for livelihood of the family of the defendant. Thus, in this way, just because agreement of sale is proved having been executed, then decree for specific performance of contract cannot be granted as it amounts to arbitrariness and causes great hardship and unfair advantage on the plaintiff over the defendant. Therefore, Section 20 of the Specific Relief Act is discretionary relief. Just because the agreement of sale is proved that cannot be a sole ground to grant decree for specific performance of contract. But, the First Appellant Court has swayed away on the fact that agreement of sale is registered one, which is not correct approach by the First Appellate Court. Therefore, decreeing the suit for specific performance of contract by the First Appellate Court is liable to be set -8- NC: 2024:KHC-D:6587 RSA No. 2706 of 2007 aside. Also, the suit filed by the plaintiff is barred by limitation as per Section 54 of the Limitation Act, 1963. Therefore, even the plaintiff is not entitled for relief of refund of earnest money as suit is barred by limitation, thus, the substantial question of law No.1 is answered that suit filed by the plaintiff is barred by limitation and substantial question of law No.2 is answered that the First Appellate Court is not justified in reversing the judgment and decree passed by the Trial Court. When the suit filed is barred by limitation - thus, the plaintiff is also not entitled for refund of earnest money. Therefore, the decree of directing the defendants to refund the earnest amount of Rs.12,500/- with interest at the rate of 12% p.a. is hereby set aside. Therefore, the appeal filed by the defendant is liable to be allowed. Hence, I proceed to pass the following:
ORDER
i) The Regular Second Appeal is hereby allowed.-9-
NC: 2024:KHC-D:6587 RSA No. 2706 of 2007
ii) The judgment and decree passed in RA No.75/2007 dated 21.8.2007 by Civil Judge (Sr.Dn) and JMFC, Ramadurga is set aside. The judgment and decree passed in OS No.4/1997, dated 8.7.2003, by Civil Judge (Jr.Dn), Ramadurga, is modified that the plaintiff is not entitled refund of earnest money.
iii) No orders as to costs.
iv) Sri.KrishnaKumar Joshi has assisted the Court in well studied manner and appraised the Court regarding law involved in the case and has taken the court thoroughly on facts involved in the case and has assisted the Court to come to the correct conclusion. Therefore, the efforts made by the learned Amicus Curie is appreciated and placed on record.
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NC: 2024:KHC-D:6587 RSA No. 2706 of 2007
v) The Secretary, High Court Legal Service Committee is directed to pay sum of Rs.10,000/- to the learned Amicus Curie.
Sd/-
JUDGE SRA para No.1-8 VB para No.9 to till end List No.: 5 Sl No.: 2