Karnataka High Court
Sri N Narayanappa S/O Marisonnappa vs Sri Pillappa on 21 September, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A. NO. 155 OF 2006 (SP)
BETWEEN:
1. SRI N.NARAYANAPPA
S/O MARISONNAPPA
SINCE DECEASED BY LRS
1(a) SMT. CHENNAMMA
W/O LATE N. NARAYANAPPA
AGED ABOUT 67 YEARS
1(b) SMT. VINODA
D/O LATE N. NARAYANAPPA
AGED ABOUT 49 YEARS
1(c) SMT.VIDYAVATHI
D/O LATE N. NARAYANAPPA
AGED ABOUT 44 YEARS
1(d) SMT.HEMAVATHI
D/O LATE N. NARAYANAPPA
AGED ABOUT 41 YEARS
1(e) N. KRISHNAMURTHY
S/O LATE N. NARAYANAPPA
AGED ABOUT 39 YEARS
ALL ARE RESIDING AT
NAGRESHWARA NAGENAHALLI
K.R.PURAM HOBLI
2
S.R.K.NAGAR POST
BANGALORE EAST TALUK
BANGALORE DISTRICT.
...APPELLANTS
(BY SRI. SRIVATSA, SENIOR ADVOCATE FOR
SRI. VISHWANATH R.HEGDE, ADVOCATE)
AND:
1. SRI PILLAPPA
S/O SRI JADIYAPPA
(a) SMT. JAYAMMA
W/O LATE PILLAPPA
AGED ABOUT 60 YEARS
SINCE DECEASED BY LRS
(i) SMT.RATHNAMMA
W/O SRI RAMAKRISHNAPPA
D/O LATE PILLAPPA
AGED MAJOR
R/AT DODDAGUBBI VILLAGE & POST
BENGALURU EAST TALUK
BENGALURU-560077.
(ii) SMT.LAKSHMAMMA
W/O SRI NARAYANSWAMY
D/O LATE PILLAPPA
AGED MAJOR
R/AT BATTARA MARENAHALLI VILLAGE
BUDIGERE POST
DEVANAHALLI TALUK
BENGALURU RURAL
BENGALURU-562165.
3
(iii) SMT.MUNITHAYAMMA
W/O LATE GUDIYAPPA
D/O LATE PILLAPPA
AGED MAJOR
R/AT NAGARESHWARA NAGENAHALLI
SRK NAGAR POST
K.R.PURAM HOBLI
BENGALURU EAST TALUK
BENGALURU-560077.
(vi) SMT.RADHAMMA
W/O GOWDAPPA
D/O LATE PILLAPPA
AGED MAJOR
R/AT SURADHENUPURA
ARAKERE POST
HESARAGHATTA HOBLI
YELAHANKA TALUK
BENGALURU URBAN
BENGLAURU-562163.
(b) SRI P. GOWDA
S/O LATE PILLAPPA
AGED ABOUT 40 YEARS
(c) SRI P. VENKATAIAH
S/O LATE PILLAPPA
AGED ABOUT 36 YEARS
ALL RESIDING AT NAGARESHWARA
NAGANAHALLI,
K.R.PURAM HOBLI,
BENGALURU SOUTH TALUK.
2. SMT.RATHNAMMA
W/O SRI N.PRAKASH
AGED ABOUT 47 YEARS
R/AT BEGLI HOSAHALLI
4
KASABA HOBLI
KOLAR TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI R.S.RAVI, SENIOR ADVOCATE FOR
SRI AKARSH KUMAR GOWDA, ADVOCATE FOR R1(B AND C);
R1(A)(II), R1(A)(III), R1(A(IV), R2 ARE SERVED;
V/O DTD:18.11.2023 NOTICE TO R1A(I) IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,AGAINST
THE JUDGMENT AND DECREE DATED 29.10.2005 PASSED IN
O.S.NO.7458/2000 ON THE FILE OF VII ADDL. CITY CIVIL
JUDGE, BANGALORE (CCH NO.19) DISMISSING THE SUIT FOR
SPECIFIC PERFORMANCE OF AGREEMENT TO SELL.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.09.2024, THIS DAY JUDGMENT WAS
PRONOUNCED THEREIN, AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
CAV JUDGMENT
The captioned appeal is filed by the plaintiff assailing the judgment and decree rendered in O.S.No.7458/2000, wherein trial Court has proceeded to dismiss the plaintiff's suit.
2. For the sake of brevity, the parties are referred to as per their rank before the trial Court.
3. The facts leading to the case are as under: 5
The plaintiff instituted a suit for specific performance based on an agreement to sell dated 18.07.1990. Plaintiff contended that defendant executed an agreement for sale on 18.07.1990 and the sale consideration was fixed at Rs.20,000/-. The defendant agreed to execute sale deed after securing permission from the Government. Plaintiff contended that defendant has received entire sale consideration and handed over possession to the plaintiff pursuant to execution of the suit agreement. Plaintiff further contended that defendant has executed a General Power of Attorney on the same day and based on suit agreement, petitioner's name was mutated in column No.12 of RTC. Plaintiff has alleged that inspite of repeated request, defendant went on postponing the execution of sale deed. Plaintiff further alleged that he has spent substantial amount to level the land. Plaintiff was ultimately compelled to issue legal notice on 28.07.2000.
Plaintiff has alleged that defendant issued a reply on 6 29.08.2000 to which the plaintiff has sent a rejoinder on 15.09.2000. Therefore, the present suit.
4. Defendant, on receipt of summons, tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. Defendant stoutly denied the suit agreement in entirety and disputed the payment of entire sale consideration as alleged in the plaint. Defendant on the contrary claimed that plaintiff has concocted the documents. Defendant, however, admitted his LTM on the suit agreement and contended that plaintiff taking undue advantage of the defendant's illiteracy and his lack of worldly knowledge, has secured LTM on blank stamp papers under the garb of raising loan from the Bank. Defendant therefore alleged that these blank papers are used to create suit agreement and GPA.
5. The Trial Court based on pleadings formulated in all eight issues. Trial Court answered issue No.1 in the 7 negative and held that plaintiff has failed to prove that defendant agreed to sell the suit schedule property for Rs.20,000/- and accordingly executed an agreement on 18.07.1990 by receiving entire sale consideration. While answering issue No.3 in the affirmative, trial Court held that defendant has succeeded in substantiating that plaintiff has obtained his thumb impression on the blank stamp paper. Trial Court having answered issue No.1 in the negative and issue No.3 in the affirmative proceeded to dismiss the suit.
6. Feeling aggrieved by the judgment and decree of the trial Court, the plaintiff has filed the captioned appeal.
7. Learned Senior Counsel reiterating the grounds urged in the appeal memo would vehemently argue and contend that the defendant having disputed the suit agreement and having alleged fraud has not mounted the witness box and no evidence is let in by the defendant. Therefore, he would contend that the findings recorded by 8 the trial Court on issue No.3 is palpably erroneous and suffers from serious perversity. He has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Vidhyadhar vs. Manikrao and Another1. Referring to Section 114(iii)(g), he would contend that defendant having disputed the contents of the suit agreement and GPA has not let in any rebuttal evidence. Defendant has consciously abstained from entering the witness box and therefore, an adverse inference would arise against him in the light of the law laid down by the Apex Court in the judgment cited supra.
8. Learned Senior Counsel referring to the pleadings and evidence let in by the plaintiff submits that suit property admittedly is a revenue site. Referring to the recitals in the suit agreement and GPA, it is argued that defendant has received entire sale consideration and the transaction could not be concluded as defendant having 1 (1999) 3 SCC 573 9 undertaken to secure permission from the authority to sell a revenue site, there is a complete breach on the part of the defendant. To substantiate that the transaction is genuine and defendant has voluntarily come forward to sell the revenue site, learned Senior Counsel would also place reliance on the entries made in the RTC pursuant to execution of suit agreement by defendant. He has contended that plaintiff's name was reflected in the cultivators column thereby the plaintiff's claim that there is an agreement to sell at the instance of the defendant stands proved.
9. While questioning the findings recorded by the trial Court, it is argued that trial Court has not at all applied its mind and has only extracted the evidence of PW.1 and PW.3. Learned Senior Counsel would contend that there is no proper appreciation of the evidence let in by the plaintiff. He would further argue and contend that in absence of rebuttal evidence, the trial Court has not properly exercised 10 discretion and therefore, would warrant interference at the hands of this Court. Learned Senior Counsel has also placed heavy reliance on the affidavit sworn to by defendant on the day of execution of the suit agreement and GPA. While reading the contents of the affidavit, he would point out that defendant has clearly acknowledged the execution of suit agreement as well as GPA on the same day.
10. Learned Senior Counsel in the light of these significant details has placed reliance on the judgment rendered by the High Court of Mysuru in the case of Lakshmamma and Others vs. M.Jayaram2. Referring to the law laid down in the above said judgment, he would contend that defendant having admitted his thumb impression on the said document and GPA was required to discharge the burden and substantiate that the document was not at all executed by him and that he had affixed his 2 AIR 1952 Mys 114 11 LTM under the circumstances indicated in the written statement. Therefore, he would contend that defendant having failed to mount the witness box and has consciously denied opportunity to plaintiff to cross-examine the defendant. On these significant details, trial Court erred in dismissing the suit.
11. Reliance is also placed on the judgment rendered by the High Court of Andhra Pradesh in the case of Alapati Sivaramakrishnayya vs. Alapati Kasiviswanatham and Others3. Referring to this judgment, learned Senior Counsel has argued that defendant having admitted his thumb impression on the document and having asserted that he had not signed these documents intending to sell the suit property, burden was on the defendant to prove that suit agreement and the consequent GPA was not at all intended to be executed by the defendant. He has also placed reliance on the judgment rendered by the Bombay 3 1956 SCC Online AP 47 12 High Court in the case of Syed Abdul Hassan Karimulla vs. Razik Hussein Afzal Hussein4. Referring to the law laid down by the Bombay High Court, he would contend that a man of full understanding and capacity forbears, or negligently omits to read what he has signed.
12. Per contra, learned Senior Counsel appearing for the defendant has vehemently argued and contended that plaintiff has failed to prove his case and therefore cannot take advantage of the fact that defendant has failed to lead rebuttal evidence. Learned Senior Counsel would vehemently argue and contend that suit property being admittedly an Inam land, the trial Court was justified in dismissing the suit in entirety. He has also placed reliance on the following judgments:
1) Padmini Raghavan vs. H.A.Sonnappa - 2014 AIR CC 1079 (Kar);
2) Narayanamma vs. Govindappa - AIR 2019 SC 4654;4
1986 SCC Online Bom 167 13
3) T.Annayappa vs. Smt. Chinnamma and Others - RSA No.1597/2013;
4) Satish Kumar vs. Karan Singh and Another - AIR 2016 SC 737;
5) Manjegowda vs. M.R.Manjegowda and Others - ILR 2013 Kar 147;
6) Sri V.P.Venkatesh vs. Smt. G.Padmavathi - ILR 2015 Kar 2695;
7) N.M.Ramachandraiah and Another vs. State of Karnataka and Others - AIR 2007 Kar 164;
8) N.Ethirajulu Naidu vs. K.R.Chinnikrishnan Chettiar - AIR 1975 Madras 333.
13. Heard learned Senior Counsel appearing for the plaintiff and learned Senior Counsel appearing for the defendant. I have also given my anxious consideration to the pleadings, oral and documentary evidence let in by the plaintiff. I have also given my anxious consideration to the suit agreement, GPA and affidavit.
14. Having learned counsel on record, the following points would arise for my consideration:
14
1) Whether the finding of the trial Court that plaintiff has failed to prove the due execution of suit agreement dated 18.07.1990 is perverse, palpably erroneous and contrary to clinching evidence let in by the plaintiff vide Exs.P-1 to P-3?
2) Whether the finding of the trial Court that defendant has succeeded in proving that plaintiff obtained his thumb impression on the blank stamp paper on the premise that the same is required for raising loan and later plaintiff has concocted the documents as an agreement to sell is perverse, palpably erroneous when admittedly defendant has not chosen to lead any rebuttal evidence and has therefore failed to discharge his burden?
3) Whether the trial Court failed to note that plaintiff has paid entire sale consideration in respect of the revenue site and the evidence let in by the plaintiff clearly substantiates that possession was delivered pursuant to agreement to sell and the factum of delivery of possession is evidenced from the RTC produced by way of additional evidence?
4) Whether Trial Court erred in not exercising judicial discretion by granting specific performance of contract?15
My findings on Point No.1:
15. Plaintiff has filed the present suit to enforce the agreement dated 18.07.1990. In order to discharge the initial burden, plaintiff has produced the agreement dated 18.07.1990. Plaintiff has also produced the GPA executed by the defendant on the same day which is marked as Ex.P-2. Plaintiff has also produced an affidavit sworn by the defendant before the notary. In terms of agreement, plaintiff claims that he has paid the entire sale consideration of Rs.20,000/-. The subject matter of the suit admittedly is a revenue site. It is the specific case of the plaintiff that defendant under the agreement was required to secure permission from the Government. Petitioner has also examined two witnesses to substantiate the genuineness of the transaction entered into between plaintiff and defendant. Defendant has admitted his LTM on the agreement to sell, GPA as well as affidavit. Defendant has, however, contended that he is an illiterate 16 man and has a poor vision and that plaintiff has obtained the thumb impression of defendant on papers stating that his thumb impressions are required as a witness to enable plaintiff to avail loan from the Bank. At para 3 of the written statement, defendant has tried to contest these documents by specifically alleging that plaintiff is the acting member of Jantadal and was the vice-president of PLD Bank and is the sitting Director of the said Bank.
16. Plaintiff to discharge the initial burden has mounted the witness box and has produced these crucial documents to establish that there is valid transaction between plaintiff and defendant and also to substantiate that defendant has voluntarily come forward to sell the revenue site and has accepted the entire sale consideration of Rs.20,000/- while executing the suit agreement. This Court deems it fit to cull the affidavit of defendant sworn before the notary on 18.07.1990:
17
"AFFIDAVIT I, Sri. Pillappa, son of Sri.Jadiyappa, residing at Nagareshwara Naganahalli, K.R.Puram Hobli,Bangalore South taluk dohereby solemnly affirm and state on oath as follows:
I declare that I am the lawful owner of the schedule property morefully described in the schedule hereunder.
And the same is in my possession and enjoyment.
I declare that I have sold the schedule site to Sri. N.Narayanappa, son of Sri Marisonnappa, residing at Nagareshwara Naganahalli, K.R.Puram Hobli, Bangalore South Taluk, for a sum of Rs.20,000/- (Rupees Twenty thousand only), and this day I have received the full sale amount from the purchaser, No balance shall be payable by the purchaser. Hence this day I have handed over the schedule property to the purchaser and also I have executed one GENERAL POWER OF ATTORNEY in favour of the purchaser.
I declare that I am ready to register the sale deed after receiving the permission from the Govt. for revenue site registration. I have no objection that the purchaser shall pay the tax, and get katha in his/her name and enjoy as he/she like by way of sale gift/mortgage etc.,"18
17. On reading the affidavit, the defendant has acknowledged the transaction vide Exs.P-1 and P-2. In the said affidavit, defendant has acknowledged that he has delivered possession of the suit schedule property to the plaintiff and has also acknowledged that he has executed the GPA in terms of sale agreement. On examining these significant details, this Court is of the view that plaintiff has discharged his initial burden in a suit for specific performance. It is incumbent on the part of the plaintiff not only to set out the agreement on the basis of which the suit for specific performance is filed, but he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him in the plaint and that defendant has committed the breach. It is quite evident from the evidence let in by the plaintiff that defendant offered to sell the suit property. On meticulous reading of the cross-examination of the plaintiff examined as PW.1, it is elicited in the cross of plaintiff that it is the 19 defendant himself who has furnished the information to draft the agreement and one Advocate by name Manju who is the staff member has drafted the agreement. It is quite surprising to note that there is a suggestion by the counsel appearing for the defendant that GPA came to be executed since there was a ban imposed by the State Government for registration of sale deed in respect of revenue site. It would be useful for this Court to cull out the relevant cross- examination which reads as under:
"...........The defendant executed the GPA since there was ban imposed by the state Government for registration of the sale deed, and also agreed to execute and register the sale deed immediately, after lifting of the ban. I was not at all knowing personally regarding the ban imposed by the state Government during 1990. It is not true to suggest that I have deposed falsely stating that due to the ban imposed by the Government the defendant has executed the GPA and also agreed to execute and register the sale deed immediately, after lifting of the ban."20
18. On reading the entire cross-examination, this Court has noticed that except denial nothing worthy is elicited in cross-examination of plaintiff to doubt the transaction between plaintiff and defendant. In absence of rebuttal evidence let in by the defendant, this Court is of the view that plaintiff's assertion and evidence let in, in support of his contention has gone unchallenged. The cross-examination by the defendant has failed to unearth any material details which would lead to non-suiting the plaintiff in the present case on hand. One more significant detail which goes to the root of the case is that defendant admits his LTM on suit agreement, GPA and affidavit sworn before the notary. Therefore, what can be gathered is that defendant has admitted due execution of all these three documents. However, he disputed the contents. It is the specific case of the defendant that these documents are fraudulent documents and plaintiff has 21 misused the innocence of defendant who is an illiterate person.
19. It is trite that a party admitting signatures/LTM on the document has to substantiate that these documents were never intended to be executed. When contents are denied but signatures are admitted, burden is upon a person who sets up that plea. Though counsel appearing for defendant is quick to add that defendant is illiterate and rustic villager and does not know to read and write, in the facts and circumstances of the case, the onus having shifted on the defendant, he was required to mount the witness box and lead rebuttal evidence. Having alleged fraud, defendant has not chosen to lead evidence. Plaintiff's right to cross-examine defendant on these transactions is denied and therefore, this is a fit case to draw adverse inference against the defendant. The onus shifts on defendant's shoulder and same is not discharged in the present case on hand. The initial burden discharged 22 by the plaintiff by producing the documents which is supported by the evidence of witness is not subjected to reversal for want of rebuttal evidence by the defendant. Therefore, in the light of the law laid down by the Hon'ble Apex Court in the case of Vidhyadhar vs. Manikrao and Another, an adverse presumption has to be drawn on defendant on the basis of principles contained in illustration
(g) of Section 114 of Indian Evidence Act for having consciously failed to enter the witness box and having not presented himself for cross-examination.
20. It was the duty of the defendant to lead evidence as the onus of proving that plaintiff had secured signatures on blank papers was on the defendant and in view of pleadings, defendant was called upon to produce the said evidence. In the present case on hand, defendant is guilty of not only withholding evidence but is also guilty for not offering for cross-examination.
23
21. For the reasons stated supra, point No.1 formulated above is answered in the affirmative. My findings on Point No.2:
22. Issue No.3 formulated by the trial Court reads as under:
"3. Whether the defendant proves that plaintiff obtained his thumb impression on the blank stamp paper as a witness for raising the loan and later on created the agreement of sale?"
23. In addressing Issue No.3, the burden of proof squarely rests on the defendant to substantiate the serious allegation that the plaintiff obtained his thumb impression on blank stamp paper under the pretense of availing a loan and later fabricated the agreement of sale. This accusation not only challenges the legitimacy of the transaction between the plaintiff and the defendant but also questions the plaintiff's conduct. To prove this, the defendant needed to produce clear and convincing evidence, especially proof 24 that the plaintiff had, in fact, availed a loan from a bank, and that the blank stamp paper was misused to create a fraudulent sale agreement. However, the defendant failed to discharge this burden, which undermines the credibility of his defense.
24. The defendant, being a key witness to the transaction, held crucial information that could have clarified the circumstances surrounding the creation of the alleged agreement of sale. By not stepping into the witness box, the defendant deprived the plaintiff of the opportunity to cross-examine him on these allegations. This failure to present himself as a witness not only weakens his case but also prevents the Court from evaluating the veracity of his claims through cross-examination, which is a crucial mechanism in the judicial process to test the credibility of evidence. The significance of this omission is heightened because the defendant, as a party to the disputed 25 transaction, had personal knowledge of the facts, which makes his testimony indispensable.
25. The Hon'ble Apex Court in Vidhyadhar vs. Manikrao and Another (supra) has established a well- settled principle of law that when a party who has personal knowledge of the facts of the case fails to appear in the witness box to depose in support of his pleadings, an adverse inference can be drawn against him under Section 114(g) of the Indian Evidence Act. This section empowers the Court to presume that evidence which could be and is not produced would, if produced, be unfavorable to the person withholding it. In Vidhyadhar's case, the Court emphasized that when a defendant does not offer himself for cross-examination, it gives rise to the presumption that the case set up by him is not true. Applying this principle to the present case, the defendant's deliberate abstention from testifying and offering himself for cross-examination 26 leads to the inference that his allegations are not credible and that the case put forward by the plaintiff is genuine.
26. Furthermore, the defendant's failure to provide specific evidence regarding the loan allegedly taken by the plaintiff or the circumstances under which the thumb impression was obtained adds to the suspicion surrounding his claims. When a party who bears the burden of proof withholds material evidence or fails to testify, Courts are justified in drawing an adverse inference. The defendant's non-appearance creates a significant void in the defense, as he was in the best position to explain the alleged fraud concerning the agreement of sale. The absence of this testimony strengthens the presumption in favour of the plaintiff, whose case remains uncontested due to the defendant's failure to discharge his burden of proof.
27. Thus, based on the principles laid down by the Supreme Court and the factual matrix of the case, the 27 Court is entitled to draw an adverse inference against the defendant. The plaintiff's case, having remained unshaken by cross-examination or contrary evidence, stands credible, while the defendant's failure to substantiate his allegations only weakens his position. Consequently, the Court is justified in concluding that the defendant's allegations lack merit, and the plaintiff's case is genuine. Accordingly, point No.2 is answered in the affirmative.
My findings on Point Nos.3 and 4:
28. The evidence presented in this case, particularly Exs.P-2 and P-3, clearly demonstrates that the plaintiff has paid the entire sale consideration for the property and was handed possession in accordance with the suit agreement. This transaction is further evidenced by the affidavit executed by the defendant before a notary, which affirms the handover of possession. Despite these significant pieces of evidence, the defendant has not provided any substantial 28 rebuttal and, crucially, has failed to step into the witness box to contest the plaintiff's claims. As earlier discussed, this omission deprives the defendant of an opportunity to present his version of the events under oath and denies the plaintiff the right to cross-examine him. Without such testimony, the defendant's denial remains unsupported and significantly weakens his defense.
29. The relief of specific performance is a discretionary remedy governed by equitable principles, as emphasized by the Hon'ble Apex Court in K. Narendra v. Riviera Apartments (P) Ltd.5 The Court in this case held that while specific performance is not an automatic right, it can only be refused when enforcing the contract would lead to undue hardship or cause injustice. In determining whether to grant specific performance, the Court must examine the conduct of both parties, the fairness of the agreement, and whether enforcing the contract would result 5 (1999) 5 SCC 77 29 in disproportionate harm. In the present case, there is no evidence to suggest that granting specific performance would cause hardship to the defendant. On the contrary, denying the relief would lead to an unfair outcome for the plaintiff, who has already fulfilled his obligations under the contract by making full payment.
30. The defendant's failure to provide any evidence to refute the plaintiff's claims or to demonstrate why specific performance should be denied leaves the plaintiff's case unchallenged. The fact that the plaintiff has paid the full consideration and has been placed in possession strengthens his position. Furthermore, the defendant's failure to testify casts doubt on the legitimacy of his defense. As the Supreme Court has noted in Vidhyadhar v. Manikrao (supra), when a party with personal knowledge of the facts chooses not to appear as a witness, the Court may draw an adverse inference that the case set up by such a party is not true. In this case, the defendant's 30 refusal to testify leads to the presumption that his claims about the misuse of blank signed papers are unsubstantiated.
31. In reviewing the facts and circumstances of this case, this Court finds it equitable to grant a decree for specific performance. The plaintiff has consistently demonstrated good faith by paying the entire sale consideration and attempting to enforce the agreement. The defendant, on the other hand, has failed to provide any credible evidence to justify denying specific performance. His conduct in the proceedings, particularly his failure to step into the witness box, further supports the plaintiff's case. All of these factors combined create a strong basis for granting the plaintiff the relief of specific performance.
32. Moreover, the findings of the Trial Court on Issue No.3 appear to be both erroneous and perverse. Despite acknowledging that the defendant did not testify and failed 31 to substantiate his claims, the Trial Court ruled in the defendant's favour on this issue. This ruling runs counter to the weight of the evidence and to established legal principles. The Hon'ble Supreme Court in Kishore Kumar Khaitan vs. Praveen Kumar Singh6, has held that when a party fails to present themselves as a witness, Courts must draw an adverse inference against them. In the present case, the Trial Court's failure to properly consider this principle led to an incorrect finding. The defendant's non-appearance shifted the burden of proof, which he failed to discharge. His allegation that the plaintiff misused blank signed papers is entirely unsupported by evidence, and the Trial Court's failure to recognize this has resulted in a miscarriage of justice. Accordingly, point Nos.3 and 4 formulated above are answered in the affirmative.
33. Finally, although the appellant's counsel has submitted additional documents under Order 41 Rule 27 of 6 (2006) 3 SCC 312 32 the Code of Civil Procedure, this Court finds that the material already on record sufficiently supports the plaintiff's case. Introducing additional evidence at this stage would necessitate reopening the case, which would only prolong the injustice already suffered by the plaintiff. The existing evidence clearly establishes the plaintiff's right to specific performance, and as such, there is no need to delve into the additional documents. The case can be decided on the basis of the evidence already presented, which firmly supports the plaintiff's claim for specific performance.
34. In conclusion, the Trial Court's findings on Issue No.1 regarding the proof of the suit agreement are clearly erroneous and contrary to the evidence on record. The plaintiff has provided cogent and convincing evidence, including Exs.P-2 and P-3, to substantiate the execution of the suit agreement and the payment of the entire sale consideration. The Trial Court, however, incorrectly held that the suit agreement was not proved, relying on the 33 defendant's unsubstantiated claim that the plaintiff had obtained his signature on blank papers. This finding is perverse, particularly in light of the fact that the defendant failed to step into the witness box to testify or to subject himself to cross-examination.
35. The Hon'ble Supreme Court has consistently held that when a party withholds critical testimony, an adverse inference must be drawn against them under Section 114(g) of the Indian Evidence Act. By not entering the witness box, the defendant denied the plaintiff an opportunity to challenge his claims, and the Court was left with uncontroverted evidence from the plaintiff. The Trial Court's acceptance of the defendant's baseless claim without any supporting evidence, while ignoring the plaintiff's substantial proof, is a serious error in the exercise of judicial discretion.
34
36. Furthermore, despite the defendant's failure to substantiate his defense, the Trial Court inexplicably answered Issue No.3 in the affirmative, concluding that the plaintiff had obtained the defendant's signature on blank papers. This finding is wholly unsustainable, given the defendant's absence from the witness box and the lack of any evidence to support such a claim. Therefore, the Trial Court's conclusions on both Issue No.1 and Issue No.3 suffer from clear perversity and must be set aside. The plaintiff has sufficiently proved the execution of the suit agreement, and the findings to the contrary by the Trial Court constitute a miscarriage of justice. Accordingly Issue No. 3 and 4 is answered in the affirmative
37. For the reasons stated supra, this Court proceeds to pass the following:
ORDER
(i) The appeal is allowed;35
(ii) The judgment and decree dated 29.10.2005 passed in O.S.No.7458/2000 on the file of the VII Additional City Civil Judge, Bengaluru (CCH No.19) is reversed and set aside.
The suit filed by the plaintiff is decreed with costs.
(iii) The defendants are hereby directed to execute sale deed within a period of three months from the date of receipt of a copy of this order;
(iv) Draw decree accordingly.
SD/-
(SACHIN SHANKAR MAGADUM) JUDGE CA