Karnataka High Court
Maheshwarayya Virupaxayya Mulmani vs Virupaxayya Sangayya Hiremath on 20 March, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2024:KHC-D:5525
RSA No. 1925 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 1925 OF 2006 (SP)
BETWEEN:
1. MAHESHWARAYYA S/O. VIRUPAXAYYA MULMANI
SINCE DEAD REPRESENTED BY HIS LRS.
1(a) CHANNAMM C/O. SUBHAS,
AGE ABOUT 46 YEARS,
OCC : HOUSEHOLD WORK,
R/O. NEAR MARUTESHWAR TEMPLE LINGAGAHALLI
VTC, MUKKUMPI, TQ: GANGAVATI,
DIST: KOPPAL- 583228.
1(b) JAYASHRI OOTI W/O. YALLAPPA OOTI,
AGE ABOUT 43 YEARS,
OCC : HOUSEHOLD WORK,
D/O. LATE SHARANABASAPPA,
WARD NO.27, HIOREJANTAKAL,
HARIJANA ONI,
Digitally TQ: GANGAVATI,
signed by DIST: KOPPAL - 583227.
SUJATA
SUBHASH 1(c) SUMANGALA KUSUNURMATH W/O. CHANDRAYYA,
PAMMAR KUSUNURMATH,
Location: AGED ABOUT 39 YEARS,
PETH BANA TQ: LAKSHMESHWAR,
HIGH COURT
DIST : GADAG - 582116.
OF ...APPELLANTS
KARNATAKA (BY SRI. SANTOSH KUMAR, G. RAMPUR, ADVOCATE)
AND:
1. VIRUPAXAYYA SANGAYYA HIREMATH,
SINCE DEAD BY HIS LRS
1(a) MAHANTESH S/O. VIRUPAXAYYA HIREMATH,
AGE: 45 YEARS, OCC: AGRICULTURE,
-2-
NC: 2024:KHC-D:5525
RSA No. 1925 of 2006
R/O. NANDAVADAGI,
TQ: HUNGUND, DIST : BAGALKOT.
1(b) SANGAYYA S/O. VIRUPAXAYYA HIREMATH,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. NANDAVADAGI,
TQ: HUNGUND, DIST : BAGALKOT.
1(c) SHANTAMMA W/O. VIRUPAXAYYA HIREMATH,
AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
R/O: NANDAVADAGI,
TQ: HUNGUND, DIST : BAGALKOT.
1(d) AKKAMMA W/O. VIRUPAXYYA SUDI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: NANDAWADAGI,
TQ: HUNGUND, DIST : BAGALKOT.
1(e) DODDABASAYA S/O. VIRUPAXYAA HIREMATH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. NANDAWADAGI,
TQ: HUNGUND, DIST : BAGALKOT.
...RESPONDENTS
(BY SRI. PAVAN HEBBALLI AND S.B.HEBBALLI, ADVOCATES FOR
R1(A) TO R1(E).
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 27.10.2004 PASSED IN
R.A.NO.57/2004 (OLD R.A.NO.7/2000 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT NO.II, BAGALKOT,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 16.12.1999 PASSED IN O.S.NO.136/1995 ON THE
FILE OF THE CIVIL JUDGE (JR.DN), JMFC., HUNGUND.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:5525
RSA No. 1925 of 2006
JUDGMENT
This Second Regular appeal is filed by the defendant challenging the judgment and decree dated 27.10.2004 passed in R.A.No.57/2004 (Old R.A.No.7/2000) by the Fast Track Court No.II, Bagalkot (the Appellate Court) which reversed the judgment and decree dated 16.12.1999 passed in O.S.No.136/1995 by the Civil Judge (Jr.Dn.) & J.M.F.C., Hungund (the Trial Court).
2. For the purpose of convenience, the ranking of the parties is referred as per their status before the trial Court.
3. It is the case of the plaintiff that the defendant is the owner of the suit property and there was an agreement of sale executed between the plaintiff and defendant on 05.08.1992 for selling the suit property for total sale consideration amount of Rs.30,000/- and out of which the plaintiff has paid Rs.20,000/-, and it was stipulated that registration of sale deed would be done after receiving balance sale consideration amount of Rs.10,000/- from the plaintiff. On being the defendant refused to execute registered sale deed, the plaintiff has filed suit for specific performance of contact, -4- NC: 2024:KHC-D:5525 RSA No. 1925 of 2006 and the suit is partly decreed for lesser relief directing the defendant to refund earnest amount of Rs.20,000/- to the plaintiff with interest at the rate of 6% per annum from the date of execution of agreement till realisation and dismissed the suit for specific performance of contract.
4. The plaintiff has preferred the appeal before the First Appellate Court and the First Appellate Court has decreed the suit of the plaintiff directing the defendant to execute registered sale deed in respect of the suit property by receiving balance sale consideration amount of Rs.10,000/-.
5. Being aggrieved by this, the defendant has preferred the second appeal.
6. This Court while admitting the appeal on 14.06.2007 has framed following substantial question of law:
"Whether the lower appellate Court was justified in exercising its discretion in granting the decree for specific performance in the light of Section 20 of the Specific Relief Act, 1968?"
-5-
NC: 2024:KHC-D:5525 RSA No. 1925 of 2006
7. The Trial Court while refusing to grant decree for specific performance of contract, but by giving lesser relief of refund of earnest amount has assigned reasons with Section 20 of the Specific Relief Act, 1963 (for short, 'the S.R. Act') is a discretional relief and therefore upon finding that, if decree for specific performance of contract is granted, then it is causing hardship to defendant and also amounting to unfair advantage on the plaintiff over the defendant. Hence, dismissed the suit for specific performance, but granted decree for refund of amount. Further assigned reason that in the course of cross- examination, the plaintiff admitted that if the defendant refund the amount, then he is not required the suit schedule property. Therefore on these reasons, the Trial Court has only decreed for refund of earnest amount.
8. The First Appellate Court on the reason that since execution of sale agreement is proved, therefore decreed the suit for specific performance by modifying the judgment and decree passed by the Trial Court.
9. The agreement is dated 05.08.1992. The suit property is house property. The total sale consideration as per -6- NC: 2024:KHC-D:5525 RSA No. 1925 of 2006 Ex.P.2 is Rs.30,000/-. It is proved that the plaintiff has paid an earnest amount of Rs.20,000/- to the defendant. Section 20 of the S.R. Act is a discretionary relief. Where the Court has to exercise discretion that must not be arbitrary and causing hardship to the parties and no party shall take unfair advantage over other party. With this principle of law, the present case is to be considered. The suit property is the only house of the defendant. The defendant might have put the plaintiff in possession, but just putting the plaintiff in possession that does not create any right on the plaintiff. Though the agreement is executed on 05.08.1992 for nearly two and half years, the plaintiff has not demanded defendant for execution of registered sale deed. There is no proof on part of the plaintiff that he has sent legal notice to the defendant demanding defendant to execute registered sale deed which proves the plaintiff was not ready and willing to perform his part of contract. The plaintiff straightway has filed suit for specific performance of contract. Unless the plaintiff proves he was ready and willing to perform his part of contract, the decree for specific performance cannot be granted as per Section 16(c) of the S.R. Act.-7-
NC: 2024:KHC-D:5525 RSA No. 1925 of 2006
10. Further more due to escalation of cost of property after 30 years, if the suit property is sold for just Rs.30,000/-, it is nothing but an unfair advantage on the plaintiff over the defendant and is nothing but arbitrary besides causing hardship to the defendant. Further the plaintiff admitted in the evidence that, if the defendant refunds the amount, then he would not require the suit property. Therefore, the plaintiff has expressed his satisfaction, if his amount is refunded to him by the defendant. Therefore, under these circumstances, the Trial Court is correct in granting decree for refund of the amount to the plaintiff by the defendant. But the First Appellate Court has just swayed away on the fact that the agreement of sale deed is registered one, but has not exercised discretion as per Section 20 of the S.R. Act. Therefore, the judgment and decree passed by the First Appellate Court is liable to be set aside by confirming the judgment and decree passed by the Trial Court. Accordingly, I answer the substantial question of law in the negative holding that the First Appellate Court is not justified in decreeing the suit in favour of the plaintiff for specific performance of contract. Hence, I proceed to pass the following:-8-
NC: 2024:KHC-D:5525 RSA No. 1925 of 2006 ORDER
i) The Regular Second Appeal is allowed.
ii) The judgment and decree dated 27.10.2004 passed in R.A.No.57/2004 (Old R.A.No.7/2000) by the Fast Track Court No.II, Bagalkot is set aside and the judgment and decree dated 16.12.1999 passed in O.S.No.136/1995 by the Civil Judge (Jr.Dn.) & J.M.F.C., Hungund is hereby confirmed.
iii) Draw decree accordingly.
iv) No order as to costs.
Sd/-
JUDGE
SSP
CT:ANB
List No.: 1 Sl No.: 37