Karnataka High Court
Sri Y Chenna Reddy vs Smt Gowramma on 8 February, 2011
RSA 526/O8
IN THE mxsa couar 0? KARNATAKA AT BANGALORE
DATED THIS THE 8" say OF FEBR$ARY, 2011
BEFORE:
TEE HON'BLE MR. JGSTICE A.S. PAcHH3§éRE"fff*; 1
REGULAR SECOND APPEAL No7526 Q; 2653'
-. ....~...«.............'
BETWEEN:
Y. Chenna Raddy,
S/0. Late Yella Raddy,
Aged about V0 years, '
R/at Chandapura,
Chandayura Post, _
Attibele Hobli, V ,W_ ,
Anekal Taluk, j', 1 g _ -v._ «
Bangalore Distiidta ' '" fl,'""":{. APPELLANT/S
{By Sri, S. Néga;$ja;_@dv.]j
AND:
_Gowramma,* "a'
Q W}p.'Mahaiingaiah, """ "
*Agedgabout $O*years,
Rfat KEB Qnatter$.
II Main,"Téachgrs Colony,
Chanda@ura, Chandapura Post,
V,V Attibéle,fibbEi,
7: 4Anekal Talgk. 9.. RESPONBENT/S
=.A.fEQ;M{s. V. Anand & H.R. Keshava Raddy, Advs.}
imiflk
This RSA is filed ujsec. 133 of CPC against the
m,§ufigemefit and flecree éated 2?i1l.2GG? yassafi in R,fi.
Na.9if2GQ? an the file Gf aha Fxlg Sisfirict Sudga,
Bangalore Rural Distriat, Eangaiare, dismissing the
ap§eal fileé against tha Qufigemant and fiecree fiateé
$4.G2.2G§6 gassed in ®;S. fie BZEXZGQE an tha fiie of
RSA 526/08
the II Addi. Civil Judge (Sr.Dn.) Bangalere Rural
District, Bangalore.
This RSA. having been heard and reserved ufor
Judgment, this day, the Court pronounced} the
following: v"-" "7 V
JUDGEMKT
The appellant has challenged the Dudgeént_and"
Decree of the trial Court, coufirmed in tfie éfifiefil}
grantingt specific performanpe ¢£_ Contract, of_ sale ;
said to have been executed iby tee Reppeilant in
favour of the respondefit.
2r" Tue faete relevant tag the purpose of this
appeal ere as uudérfxid
L wili refer re the parties as per the rank
"~befere~E_the trial * Court for the purpose of
V"'.Q'<31'1'R'J'"£.%~ni£?.1'1'C'-~39.' 2' ..
"."The'appeiiant herein is the defendant, whereas
uthe respefident is the plaintiff before the trial
':Cefirt, Véeth the parties beionq to Chandapur village
Arie:-:a:L Taluk: and the plaintiff claims that the
dddefeedant is the ewner of the property bearing Sy.
"Ne.693; Keneehmari 3%? meaeering east he west 33 ft.
and nerth te eeuth 26 ft,, tegether with :9 X ifi ft,
.f
ghee
RSA 526/O8
asbestos sheet house, situated at Chandapura
village, within Eangalore Rural District. ,r The
description of the property, measurement A and
boundary has been mentioned in the scheee1e"£¢{te¢»
plaint.
The defendant is said agreed
the suit property for a oonsideretion_e£'§BG,DO0--0U»d
and. on 24.09.1999 he exeouted 'the d$aie_AA§reement,
agreeing to sell the suit grogertytfflfi the afOKeSaid
amount. On the date of the égreefientg received an
amount of ?5fi;§enQQO as advaneeg toeards part of the
sale Qonsideratgon vand _it was agreed that the
remainin'g.,_amou'nt«Vo;?b:_§"ft¢";'3.00~00 shall be payable at
the time of registration of the Sale Deed and the
time"stipuiated Q55 1% years from the date of the
Vaqreeeent," f fine defendant was to obtain all
neoessary.dpeuments in respect ofi the suit schedule
3u*¢ property to execute the registered Sale Deed'
d;da_§he pxaintiff was ready and wiiiing to gerform
d" user' pert ef the contract. by" paying' the remaining
vvsale censideratien ef ?1G,GG3~GG aneg to get
registered Sake Deed in her feveur. fiithie the
s
RSA 526/G8
stipuiated time, she approached the defeedant
personally on several occasiens and expressed that
she is ready and willing to pay the baiafidgjsézsk
consideration and requested tefl execfiteu?tEe."Sale"
Deed. But, he went on postponing tfie'seee en fine es
the other pretext. ' i «
plaintiff issued a notice on i§tQ3.2COi ealiing upon
the defendant ta execute the teeistezed sale Deed at
the cost of the plaintiff denestnet balance sale
consideration ewe ?l0}eoeeeO;ufliThQ@§h 'the defendant
received the netieee gage an untenable reply stating
that there was nd Sale esteement and that an amount
of ?30,dGD¥dO ea; fiaid 5% iean to the defendant and
by 'way' efvtsecurity}_ tee document is said. to have
._been executed. "wit is in these circumstances that
A*the"piai#ti£f*was constrained to institute the suit
fo£_sQeci£ic_pefformance of contract of sale of the
suit.ipropert§ in her favour by' passing" decree to
"'5Tft£a:;effec£.
The suit summons was issued. to the defendant
Vtfieegh served, he did net aepeart He was plaaed ex~
igaxte an §2,Q6.2$G1 and the smite: was eested fer
ex~§erte evidence. ?,fi.i was examined in part and
:~,1;i
V
Having no dothert;wey,:§tneiK
RSA 526/08
when the matter was pasted on (}7,1.'2.200l,,.___ the
defendant filed an application, I.A.2
provisiens of Grder 9 Rule '7 {':FC., to
exsparte order and the said appl»icatio'n"'was, al lewedu"
on payment of costs of ?50-O0 Vand:_"th:e
permitted to file the writf:en__ staltenient.iv'"'"EFl1eV_Hmaitter, '
was adjourned to :;1.o4?2Vc..3_V'§32_,VV V52 and
30.09.2002 and as on dates
did not file the writtenccurt passed
an Order as not filed and
posted the The evidence was
continued" "n?e're"V:examined. It is on
07.09.2013; filed an application
for permissipn _tcV>' written statement. The
_Vp1aintj_§&ffl'~filed'obvjecft.ions to the said application.
'V.:t::'wa.s' h§'aA;eA'and ultimately, it was rejected on the
gr6L;n'é:i_ ¥:'hat._ defendant has not made taut
'Vi'3uffi<:f:3.ent"gx:'bunds by explaining the delay of more
" T 2 . *..y?ea,rs in filing the application fez:
"per;n;i.ssion to take on record the written statement.
3.5 under these circumstances, the wxitten
v'"~.__$;tetement ef the defendant: was not accepted, when
?.%~?.l was examined; the eenneel for the defendant
was absent and tiierefereg ereeewexaminatien wee
RSA 526/O8
taken as nil on 07.11.2001. Then, the affidavit by
way of examinationwin:chief' of P.W.2 was §ileea'en
12.08.2004 and. the chief--examination wa;3i§§a§:é§eé'
on the same day. The counseim tor cfihemiéefeneaati
prayed for time, his request wag_§ejecte& afia the
crosswexamination has taken as cnil. ;""E,W-3_§wasae
examined. on the same day uéga' the hreeuesti of the
counsel for an adjofiinmentii#¢ii?%5$S"@X%fiihe P-w-3
was rejected. Ultimateiyei:afteghigiesure of the
evidence, the,*natte$: §ae:'peetedh:fer defendant's
evidence and hag "the'tfie£eneantw.did not lead any
evidence, """ "therith;al'hCeuit"~heard the respective
counsel {gr the"§attiee and on ayyreciation of the
material dh_irecexel.heid that the Sale Agreement
_Ex.F3"fhas% been" proved and that the plaintiff was
hxreadyianeiwiiling to perform his contract. In the
circumstances, "it granted. a decree, directing the
'h'defen&ant ta execute the Sale Deefi by receiving the
'"vf"remainingNéale consideration.
haifiégrieved. by the Judgment and. Eecree cf the
gtfial Qcurt, the defendant approached the lower
'ma§peilate Ceurt in R»Ax §e.§1/233?. The saifi appeal
was heerfi. by the icwer appeiiate Ceert ané vifie
Judgment and Order dated 27.11.2007,
RSA 526/O8
it dismissed
the appeal. In the circumstances, the defendant has
approached this Ceuxt in the appeal; chaziéagifigftael
concurrent finding of the Coutts beloweigefanting"
speeifiic performance of contract of»eale,-.'
This Court has framed-the_foilQwingVsnhetentiali
questions of law for consideration;
1)
2)
'ofix_the"
Whether the Cou$te5 ;beiow } were
justifiee, ini deereeingr the «éuit of
the HQ §iaintif£_ _,for imispecific
erformance}» without 7noticin the
,inhetentRfiefects and inconsistencies
flon_thenfieterial«on'record?
Whethe; xthe1.Juegment and. Decree of
'*the vcoufte Vbelow is vitiated for
nonweffotcihgi opportunity to the
.de£en&ent to contest the suit solely
ground that the written
statement was filed beyond time?
h*nT3.z=~fi have heard the learnefi counsel for the
4»
'*e§3eliant and also the respondent.
It is the cententien of the learned counsel wfer the epeeiient that the trial Ceert eemmittee an errer in net greeting permiesien te file the wxitten "v';::e RSA 526/O8 statement and an adjournment to erosswexamine the witnesses. It is his specific contention 'theta the Order rejecting the application, seeking pernission to file written statement is iliegal and tnerefere;' requested to set aside the seed Otdex g?{f¢§sr£gi§g"
the appellant to file the written statement and the matter may be remitted bask to the trrei Court ford"
reconsideration. So also, it es his contention that the material placed onfreeotd is not sufficient to prove the Agreement ozfii Sale ;an'd~vV't3.;iat'V" the document executed was by say df seeurity for a loan amount of ?30,000+OU¢,rQn ttese grounds; he sought for setting aside the Judgeentsand=Denree of the Courts below. Per xcontra," then iearned counsel for the respondent supgorted the Judgment and Decree of the to Courts telow contending that the defendant had not madew eat _anya such grounds to grant permission to file, the..written statement. There was inordinate t"~, delay of more than 2 years, which was not explained.
"Therefore, he contends that the trial Court was tVMndjustified in regeeting the agplicatien, seeking tueermiseien te fiile the written statement as the defendant having eveiied tne eepertunity te file the i §§£i'._ RSA 526/08 written statement and did not do so. In _these circumstances, he contends that the giaintiff commenced his evidence and as the learned counsel, for the defendant did notflm cres3@examine'g the"
witnesses despite affording an opportunitya*hasvho right to have an additienal 'opportunity _in: the ; matter. On these grounds, he seught fer dismissal of the suit.
5. At thev fi;5t. ;nst§n§é}. he Jconsider the Order of the tree: Court sulfa; as rejection of the application ,s5§;_£i:;£ah'fifié' eritten statement is concerned, tit s;§§:5eeéa§a;y Hto know that despite service dor"sumfieas;"zthe" defendant at the first instance did not appear before the trial Court and Jdtherefbre, uhe nae """ "filaced exmparte on 02.06.2001. dfhe smttet was adjourned to 21.07.2001, 17.11.2001 and 0?;12r200f i.e., more than 6 months time elapsed ' for his. tappveaxance and it is on 97.12.2001 he filed nigh; 2 under the yrovisions of Order 9 Rule 7 CPC to {set aside the exwparte Order. The said applicatien " sag allowed an payment of caste on the same day and '(the matter was adjeereed re 30¢Q1.2G02 he file the written statement. Et was adjeurned te §i.0492%02, his 10 RSA 526/08 02 09 2002 and 30.09.2002 for the purpose of féiing the wtitten statement. Despite the Court 'having granted more than 9 months time to file the ekittenc statement, the defendant did not." do f go "_andu' therefore, the Court passed an,Orde£'en.3Ct0§;2052 as written statement not filed and posted the_metterph for plaintiff's evidence. H°¢houghv2theheatter was posted for cross~exa@inatient'e§fi}P,W.120i:e., the plaintiff on 11.03.2004, the géarnégggounsel for the defendant was eheent on that §ey,§g§ therefore, the cross-examinetgen hes £ae§n_§s nil} p.w.2 filed his affidavit by fie; ef.choeeeekamination on 12.08.2004 and in the efiidenee ct figwpl, ali the documents were admitted in_0the_ evidence including Ex.P1, the _Agreement of Seie said to have been executed by the 0;defendent,t _ Xerox copy of the notice-Ex.P2, the postal eckhewiedgements, postal receipts, ete., the V2'extraet ef. the heuse tax receipt, copy of the "effeppl1catioh for grant ef temporary injunction, copy vdrefh the: application filed by the defendant undex 2*a§tder 9 Rule ? CFC have been marked as EXSAFQ to 12. 20', the matter was peeted fee defeedent's evidence and in the meanwhile, it is en §?g0§.2§0é that the defendant filed enether application seeking e/M 11 RSA 526/O8 permission to file written statement after the iapse of 2 years from the date of the Order takin§ the written statement as not filed. tiTheVired¢dh application was opposed and mafterJ"heering"_the" learned counsel for both the; parteee, .the° trial Court rejected the said appiicatien on fi§,Q3.2D05, ; holding that the defendantn has *netd eede out sufficient grounds i_to _ grant firthe Htermission. Thereafter, it is on ié fie zdgé aee[e3¢o7.20o5, the matter was posted for detendent's evidence. A3 the defendant has not ied the efiidence despite affording oPPOrtunitYpi£%é*@&tt%@ was heard and on the date when the matter flee edfieurned for argument of the defendant, the_ceunseleeas absent and therefore, it _posted§ fer Jtdgment and granted a decree for Arspecificiperfermance.
iiéf It is relevant to note that since from the commencement of the proceedings by service of ,e'$fimhdns till the Judgment was prenounced, the §"»'s,»~*'"/' t, udefendant show§%his utter negligence. At the first niestance he did. not appear before the Court for Eabeut 8~9 menthe end then filed an apglieatien to eet eeide the ex~§arte Qrder, the epplieatien was f 12 ass 526/'O8 allowed. on. payment of costs of ?50~G0 and. he_ was permitted to file the written statement,~ hep fies granted. about 9 months' time to file _teeuperitten' statement. But, despite the opportunitp basins beend granted, he did not do so and theeerdrgy an Order came to be passed by the.trialVCosrt on 3érfi?l2dO2fi* as the written statement has not filed and he kept quite for all along" for'_a flperiod*,gf Ziipears and submitted the application tor perfiieg%¢fi to file the written statement on §7.Q§f20b%t ain support of this appiication§ an" a£%ia$e;§'.fie§{ been filed by the defendant;~.Qfigreifi'-theta his""counsel requested to bring the oopy of the eepig notice and he approached his counsei on several occasions and as he was able _to get the oop§*o§_the notice and other particulars i=oniyuuon_fid2-Q9,2004, he approached. the counsel and filed _theT'appiioation, seeking permissions to file Vivthe written statement. It is rather surprising to ~_:fpnotep that" the defendant took 2 years time for "traeine out the reply notice, which was issued by ad*the counsel. The perusal of the affidavit filed by '"»_the defendant and the cause shown therein cannot be believed for the reason that he never stated in the affidavit that the dooument was mis~plaoeo. see: he 13 sass 526/08 traced the document on the date when he filed the application and no sufficient material was plaeeaagn record to Show that he was justified in=et§lh§fiind-- the delay in filing the application. sfiowy as eould"
be seen from the application that has been tiled hf the defendant, seeking ,petmissioh to ltilejlthei; written statement, though he states that he was able to obtain the reply notioefa¥dfifi;$é€2004@ he did not even groduoed the copy of the notioe along with his application at"least to satistY=##é Court that he obtained the oopfi at the paxtionlar day.
7. $0; when he.net up'a ground that he was to obtain theé copy 'oft the» reply' notice and. when. he secured the sameg as to why the said reply notice i was not ttodfioed before the Court below is also not explained K So}nit is under these circumstances that it" the t;ial'_¢oert rejected the application seeking R'E@ermission' to file the written statement and i'»fitoeeeded for evidence- The negligenee of the d~ defendant did not end here and despite affording an d',"e9pertunity fox' srossmexamieation of the witnesses §,Ws;l to 3; the eeunsel never took any interest to eross~examine the said witness. Thanh when t%X ;
Mi 0% 14 ass; 526/08 matter was posted for the defendant's evidence, there was no representation and even on the adate when the matter was argued, the learned_dounsel:forg the defendant was absent. So, since lfrom"_the"
beginning, till the termination of the prooeeding; the negligence of the.fl defendant " has Ebeend; satisfactorily proved and in such eireuhstances, I do not think that there is a_§us; ground in granting permission to file written _ statement by the defendant.
8. fiurthernoreg when he filed an appeal against the plaintiff}, there, was _a delay on 514 days in filing the appeelQW Therefore, the defendant filed an applieation 'under isection 5 of the Limitation dent. n{Though he states that he suffered paralysis istreheg after pthe decree by the trial Court, no doouments 'here produced in support of the cause 'made, but anyhow, the lower appellate Court condoned h the oelap and after hearing on merits has dismissed
---thep appeal. Even the lower appellate Court took " gar; oonsideration the circumstances and the manner Jof negiigenoe all along sinoe from the date of the serviee of summons, neld that the appellant has not W' 15 ass 525/as made out any grounds to interfere with the Judgment and Decree of the trial Court and dismissed_ the ap§eal_
9. In these circumstances, it cannot be said byu * any stretch of' imagination tnatvithgirdefiengfinéflfés diligent himself before the triai Court and desnite, having afforded ample opnortunityd'to5Rfiiefi hisd written statement, did not fiie the same within the time granted and thoudh he sited the application, he did not assign a justiriatie gronnd fie condone the delay and permit nim to tile tee sritten statement. He also did not oross§e3amine the witnesses though they were 'offered x%§fiE"cross~examination. It is under these tircumstanoes, I am of the opinion that tithe 'Hoo'n'di1ct of the defendant and the 'c§u§é*sfio§sTa§ insufficient to grant permission to file the written statement.
dAA 1O:u Now so far as the Sale Agreement is '"senCerned, it has been spoken to by P.W.l about the *rt駧egtion of the Sale Agreement on payment of iR*m_?5G,§§§mQS on the date nf the Agreement and the gayment sf remaining amnunt of ?iG,GG@~§€ within 1% years from the date sf agreement and the piaintiff ski 16 rzse 526/O8 has also spoken that she approached the defendant on many occasions with the amount and with a request to execute the Sale Seed and ultimately having no other* option, had issued a notice which has been pfodncedd by the plaintiff at E£§xs.P2 and F8..end1de'spit:e-..&the service of notice, the defendant did not eeecnte the_' Sale Deed. The plaintiff her eiiaence stated that she has all the ;while_ teedgfi and willing to perform her part of the tcontract@fh§ paying the remaining selewlbonsideretion Tend to bear the registrationw chefges V33 "well; vi Her unchallenged evidence has heed corrobofeted by the evidence of P.Ws.2 end 3, who ate_the ettesting witnesses to the said agreefient_and they state their presence at the __time,df the agreenent end an amount of ?30,000w0O A\was"paid to the defendant and the remaining amount wes_toghei§ayehle within léé years from the date of the agreeeent and the evidence of these 2 witneeses u"ni$'aaleo not. challenged tar cross~examination. So; lthe perusal of the evidence of these witnesses do ':notdreveal any such diserepancy about the execution A"~and the erect ef Ex.?l, the Sale Agreement, Though 1% years ef time was stipulated ender the egreementf )7 I7 RSA 526/O8 for payment of remaining sale consideration of ?1o,oeomoo and the plaintiff having approached the defendant requesting to receive the not accept the same and execnte' them gi;¢= heed "
Therefore, it is on 23.03.2$D1 ;icé.;, iemedietely after expiry of 1% years; the stifiulated time that,i the plaintiff issued a notice; toh the defendant calling upon him teYhexecutedzthe~ Sale Deed by receiving the remaining .s§i§; coneideration. The defendant reyliedh §§aa;fi§ii£fi$te-it is not an Agreement at lsaié hand Ethath it wis a documents of security for g 1e§h ef;?30;65ee00 advanced to him. when the pleintirt eaee fig know the conduct of the defendant, twee" censtrained to institute the suit ifiimmedietely on 62:fl4;2001. So, the plaintiff all hthe whi1g"wa$ ready and willing to perform her part of <theT eeetreet as per the terms and conditions incorfibratedi in the Sale Agreement~Ex.Pl and u"nepproached the Court immediately thereafter and this lrather" proves the diligence ef the plaintiff all .:alefigK Therefore, the Courts below were justified in A""helding' that §x.§l has been preved. Under these circumstances, decree was granted by the trial Ceurt and was cenfirmed by the lewer appellate fieurt. Is \ % 13 RSA 526/O8 that viaw cf the mattar, I answer the substantial questions of law (1) in affirmative and {é}T in negative and as the appeal is devoid of gm@ifs&~it is dismissed accordingly.
Ksm* s. ""» *