Karnataka High Court
Siddaramaiah vs Smt Honnamma on 13 October, 2022
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RSA No. 18 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.18 OF 2022 (SP)
BETWEEN:
1. SIDDARAMAIAH AGED ABOUT 64 YEARS,
S/O CHIKKANNA D.KALI
RESIDING AT NO.64
ISEC, 5TH CROSS ROAD,
NAGARABHAVI MAIN ROAD,
NAGARABHAVI, BANGALORE - 560 072
2. T. RANGANATHA GOWDA,
AGED ABOUT 60 YEARS,
S/O. THIMMEGOWDA
3. T. KRISHNAIAH,
AGED ABOUT 57 YEARS,
S/O. THIMMEGOWDA
APPELLANT NOS. 2 & 3 ARE R/O
THUYALAHALLI VILLAGE,
MAYASANDRA HOBLI,
TURUVEKERE TALUK - 572 227
TUMKUR DISTRICT.
Digitally signed
by SUCHITRA ...APPELLANTS
MJ
(BY MR: T.P. VIVEKANANDA, ADVOCATE)
Location: High
Court Of
Karnataka AND:
SMT. HONNAMMA, MAJOR,
W/O. GIDDEGOWDA,
D/O. LATE HONNAIAH
@ HONNANAJAVARANARASAIAH,
DODDAMADURE VILLAGE,
YEDIYURU HOBLI, KUNIGAL TALUK - 572 130
TUMKUR DISTRICT
...RESPONDENT
(BY MR: K.N. NITISH, ADVOCATE)
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RSA No. 18 of 2022
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 13.08.2021 PASSED IN RA
NO.36/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
KUNIGAL, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 17.08.2017 PASSED IN OS
NO.143/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND
JMFC, KUNIGAL.
THIS R.S.A., COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Even though the matter is listed for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
2. The plaintiffs-appellants are before this Court being aggrieved by the impugned judgment and decree dated 17.08.2017 passed in O.S.No.143/2011 on the file of the learned Principal Civil Judge and JMFC, Kunigal (hereinafter referred to as 'the trial Court' for brevity) wherein, the suit of the plaintiffs for specific performance of contract was dismissed and the defendant was directed to refund the advance amount of Rs.2,00,000/- with interest at 6% per annum from the date of suit till realization, which was confirmed in R.A.No.36/2017 on the file of the learned Senior Civil Judge and JMFC, Kunigal (hereinafter referred to as 'the First Appellate Court' for brevity) vide judgment dated 13.08.2021.
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3. For the sake of convenience, parties are referred to as per their status and rank before the trial Court.
4. Brief facts of the case are that plaintiff Nos.1 to 3 filed suit O.S.No.143/2011 against the defendant seeking the relief of specific performance of contract dated 27.06.2008 and also the agreement of sale dated 26.09.2008 and directing the defendant to execute the registered sale deed in respect of the schedule property after receiving the balance consideration amount. The property described in the schedule is 15 guntas of land in Sy.No.37/2 situated at Beeraganahalli Village, Yadiyur Hobli, Kunigal Taluk, as per the boundaries mentioned therein.
5. It is contended that the defendant is the absolute owner in possession and enjoyment of the suit schedule property and it is her self-acquired property. The defendant along with her son and daughters agreed to sell the schedule property in favour of the plaintiffs for a total consideration amount of Rs.4,50,000/- and received advance amount of Rs.2,00,000/- under the agreement dated 27.06.2008. The defendant agreed to sell the property to meet her urgent needs -4- RSA No. 18 of 2022 of discharging the loan incurred towards marriage expenses of her daughters. It was agreed that the sale deed is to be executed within three months from the date of agreement. It is further contended that on 26.09.2008, the defendant executed a continuation of agreement of sale over the very same agreement for sale wherein, the defendant agreed to execute the sale deed within six months. The plaintiffs were demanding to execute the sale deed since January-2009 by accepting the balance consideration amount. Inspite of that, the defendant was not ready and willing to execute the sale deed. The plaintiffs issued legal notice on 11.03.2011 calling upon the defendant to execute the sale deed. The said notice was served on the defendant. Inspite of that, the defendant was not ready and willing to perform her part of the contract. Therefore, the plaintiffs filed suit seeking relief of specific performance of contract.
6. The defendant had appeared before the trial Court and filed written statement denying the contentions taken by the plaintiffs. It is contended that the defendant had never executed any agreement. It is also contended that the property is the joint family property and other members of the -5- RSA No. 18 of 2022 joint family are not arrayed as defendants. Therefore, defendant prayed for dismissal of the suit.
7. On the basis of these pleadings, the following issues came to be framed:
"1. Whether the plaintiffs prove that the defendant has executed agreement of sale dated 27.06.2008 agreeing to sell the suit schedule property for a sum of Rs.4,50,000/- and has received Rs.2,00,000/- as earnest money under the said agreement of sale.?
2. Whether the Plaintiffs prove that the defendant on 26.09.2008 executed continuation of agreement of sale in the agreement of sale dated 27.06.2008.?
3. Whether the defendant proves that the plaintiffs have created the suit agreement of sale.?
4. Whether the plaintiffs were/are ready and willing to perform their part of contract.?
5. Whether the Plaintiffs are entitled for the relief of specific performance of Contract as prayed.?
6. What order or decree.?"
8. The plaintiffs examined plaintiff No.3 as PW.1, four more witnesses as PW.2 to PW.5 and got marked Exs.P1 to P16 in support of their contention. The defendant examined herself as DW.1, two more witnesses as DW.2 and DW.3 in support of her defence. The trial Court after taking into consideration all these materials on record, answered issue Nos.1 and 2 in the -6- RSA No. 18 of 2022 affirmative, issue Nos.3 and 4 in the negative and issue No.5 partly in the affirmative. Accordingly, the suit of the plaintiffs for specific performance of contract was came to be dismissed. However, the defendant was directed to refund the advance amount of Rs.2,00,000/- with interest at 6% per annum. Being aggrieved by the same, the plaintiffs have preferred appeal in R.A.No.36/2017. The First Appellate Court on re-appreciation of the materials on record, came to the conclusion that there are no grounds to interfere with the judgment and decree passed by the trial Court and accordingly the appeal was dismissed with costs and confirmed the judgment and decree passed by the trial Court. Being aggrieved by the same, the plaintiffs are before this Court.
9. Heard Sri. T.P.Vivekananda, learned counsel for the appellants and Sri. K.N.Nitish, learned counsel for the respondent. Perused the materials including the Trial Court records.
10. Learned counsel for the appellants contended that execution of the agreement of sale dated 27.06.2008 and continuation of the said agreement on 26.09.2008 is proved by -7- RSA No. 18 of 2022 the plaintiffs. Inspite of that, the trial Court and the First Appellate Court committed an error in dismissing the suit of the plaintiffs. When the plaintiffs were ready and willing to perform their part of the contract and conduct of the defendant in denying the agreement should have resulted in decreeing the specific performance of contract. Learned counsel placed reliance on the decision in the case of Sughar Singh v. Hari Singh (Dead) Through LRs. and Ors.1, to contend that the relief of specific performance of contract is discretionary relief and when the plaintiffs are successful in proving execution of the agreement for sale and their ready and willingness, the relief of specific performance is to be granted. It is further submitted by the learned counsel that the finding of the trial Court and the First Appellate Court that the plaintiffs were not ready and willing to perform their part of contract is erroneous and therefore, prays for allowing the appeal.
11. Per contra, learned counsel for the respondent opposing the appeal submitted that there is concurrent finding of fact by both the Courts. The scope of the second appeal under Section 100 of CPC is very limited. The judgment and 1 AIR 2021 SC 5581 -8- RSA No. 18 of 2022 decree passed by the trial Court and the First Appellate Court are reasoned judgments. It cannot be said that the reasoning assigned by the trial Court and the First Appellate Court are either perverse or against the settled proposition of law. Under such circumstances, there is no reason to interfere with the impugned judgment and decree and accordingly, he prays for dismissal of the suit.
12. I have considered the submissions made by the learned counsel appearing for the parties in the light of the materials on record.
13. It is the specific contention of the plaintiffs that the defendant executed the agreement for sale agreeing to sell the schedule property as per Exs.P1 and P2. Apart from the evidence of PW.1, the attesting witnesses to the agreement are examined as PW.2 and PW.3. PW.4 deposed about the continuation agreement entered into between the parties. PW.5 is the document writer to depose regarding execution of the agreement for sale. From all these materials it is clear that the plaintiffs proved execution of Exs.P1 and P2 by the defendant, her children and grandchildren for a sum of -9- RSA No. 18 of 2022 Rs.4,50,000/- and accepted Rs.2,00,000/- as advance. Even though the defendant contended that the document is concocted one, nothing has been elicited during cross- examination of any of these witnesses. The defendant who is examined as DW.1 has not seriously disputed Exs.P1 and P2. Therefore, the finding of the trial Court and the First Appellate Court that the execution of Exs.P1 and P2 is proved is justified. The said finding is not challenged by the defendant.
14. Both the Courts have held concurrently that the plaintiffs were not ready and willing to perform their part of the contract and accordingly, answered Issue No.4 in the negative. Admittedly, the agreement was executed on 27.06.2008. It was agreed to execute the sale deed within three months by accepting the balance consideration amount of Rs.2,50,000/-. However, as per Ex.P2, the time for execution of the sale deed was extended and it was agreed to get the sale deed registered within six months from 26.09.2008. But the legal notice was issued by the plaintiffs calling upon the defendant to execute the sale deed only on 11.03.2011 i.e., about 2½ years after execution of Ex.P2. Even though the plaintiffs contended that they were demanding the defendant to execute the sale deed,
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RSA No. 18 of 2022there is no material to substantiate the said contention. As per the agreement, there is nothing to be performed on the part of the defendant except receiving the balance consideration amount and executing the sale deed. Under such circumstances, it was for the plaintiffs to call upon the defendant to execute the sale deed informing that they are ready and willing to perform their part of the contract by paying Rs.2,50,000/-. When it is specifically stated in Ex.P2 that the sale deed is to be executed within six months, atleast within reasonable time, the plaintiffs should have notified the defendant regarding their ready and willingness to perform the contract. There is absolutely no reason as to why the plaintiffs have not issued the legal notice within a reasonable time calling upon the defendant to execute the sale deed. These facts and circumstances were considered by the trial Court and the First Appellate Court and concurrently arrived at a conclusion that the plaintiffs were not ready and willing to perform their part of the contract.
15. When the trial Court and the First Appellate Court on appreciation and re-appreciation of the materials, recorded a concurrent finding of facts, the scope under Section 100 of CPC
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RSA No. 18 of 2022to interfere with such findings would be very limited. The jurisdiction of the High Court under this Section to entertain the second appeal is confined only to such appeals which involve a substantial question of law. The Section does not confer any jurisdiction to interfere with pure question of fact, while exercising its jurisdiction. Since there is concurrent finding of facts by both the Courts below, the scope of this appeal is very limited. It is the settled proposition of law that only when the findings of the Trial Court and the First Appellate Court are against the materials that are available on record or when it is against the settled proposition of law or the findings appear to be perverse, this Court can interfere with such findings of the facts.
16. It is relevant to refer to the decision of the Hon'ble Apex Court in Thiagarajan and Others v. Sri Venugopalaswamy B. Koil and Others2, where the scope and ambit of Section 100 was discussed at length and it is held that existence of substantial question of law is sine-qua-non for the exercise of the jurisdiction under the amended provisions of Section 100 of CPC. It is re-iterated that where findings of fact 2 (2004) 5 SCC 762
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RSA No. 18 of 2022by the First Appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re- appreciation of evidence, merely on the ground that another view was possible.
17. In Narayan Rajendran and Another v. Lekshmy Sarojini and Others3, the Apex Court discussed at length about the scope and ambit of Section 100 CPC both prior to the amendment to CPC in 1976 and after it and held that the second appeal can lie only on one or the other grounds specified in the section. It is also held that even before the amendment, interference under Section 100 CPC was limited and after the amendment the power has been further curtailed. The amendment Act 1976 has introduced drastic changes in the scope and ambit of this section which is now confined to cases where a question of law is involved and such question must be a substantial one. The Court has referred to several such judgments after amendment to Section 100 of CPC and re- iterated that the jurisdiction of the High Court under this section to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does 3 (2009) 5 SCC 264
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RSA No. 18 of 2022not confer any jurisdiction to interfere with pure question of fact while exercising its jurisdiction.
18. The Hon'ble Apex Court referred to its earlier decision in Madhavan Nair Vs Bhaskar Pillai4, to hold that the High Courts are not justified in interfering with the concurrent findings of fact. Even if the First Appellate Court commits an error in recording a finding of fact, that itself will not be a ground that the High Court to upset the same.
19. Referring to the Fifty Fourth report of the Law Commission of India submitted in 1973, the legislative background which led to amendment of Section 100 CPC was highlighted that 'the question could perhaps be asked, why the litigant who wishes to have justice of the highest court of the State should be denied the opportunity to do so, atleast where there is a flaw in the conclusion of facts reached by the Trial Court or by the Court of first appeal. The answer is obvious that, even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. It is held that an unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant; but a wide right of 4 (2005) 10 SCC 553
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RSA No. 18 of 2022second appeal is more in the nature of a luxury'. Thus, the Apex Court once again crystallized the legislative intention by referring to its earlier decisions to caution the High Courts to refrain from interfering with the concurrent findings of fact without there being a substantial question of law. Thus, the position of law is very well settled with regard to interference under Section 100 of CPC.
20. Even if two views are possible on the basis of the materials that are placed before the Court, unless it is shown that the view taken by the trial Court and the First Appellate Court is either perverse or against the materials that are placed before the Court or against the settled proposition of law, this Court shall not interfere with the impugned judgment and decree. The reasons assigned by the trial Court and the First Appellate Court cannot be termed as perverse or against the settled proposition of law. Even though learned counsel for the appellant placed reliance on the decision in the case of Sughar Singh (supra), the facts and circumstances of the said case is entirely different. Further, the Hon'ble Apex Court reiterated the settled proposition of law that granting of relief of specific performance of contract is purely discretionary in view of
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RSA No. 18 of 2022Section 20 of the Specific Relief Act, 1963. Even if the agreement is found to be duly executed and plaintiffs are found to be ready and willing to perform their part of the contract, grant of decree of specific performance is not automatic. However, the discretion for grant of the relief is to be exercised judiciously but to exercise such discretion, the plaintiffs have to prove that they were ready and willing to perform their part of the contract. When such evidence is lacking, it cannot be said that the impugned judgment and decree passed by the trial Court and the First Appellate Court requires any interference. Therefore, I am of the opinion that no substantial question of law would arise for consideration and impugned judgment and decree does not call for interference. Accordingly, I proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 17.08.2017 passed in O.S.No.143/2011 on the file of the learned Principal Civil Judge and JMFC, Kunigal, confirmed by the learned Senior Civil Judge and JMFC, Kunigal in R.A.No.36/2017 vide judgment dated 13.08.2021, is hereby confirmed.
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RSA No. 18 of 2022
(iii) Registry is directed to send back the Trial Court Records along with copy of this judgment.
Sd/-
JUDGE SMJ