Karnataka High Court
Vishwanath S/O Avadhbihari Mishra vs Davalatsingh S/O Gajanansingh Thakur on 9 January, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 5994 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 5994 OF 2011 (SP-)
BETWEEN:
VISHWANATH S/O AVADHBIHARI MISHRA
SINCE DECEASED BY HIS LEGAL HEIRS
1. SRI.SATYANARAYAN S/O VISHWANATH MISHRA,
AGE:MAJOR, OCC:BUSINESS,
R/O:TIKARE ROAD, DHARWAD-580001.
2. SRI.SHIVANARAYAN S/O VISHWANATH MISHRA
AGE:MAJOR, OCC:BUSINESS,
R/O:TIKARE ROAD, DHARWAD-580001.
3. SRI.RAGHAVENDRA S/O VISHWANATH MISHRA
AGE:MAJOR, OCC:BUSINESS,
R/O:TIKARE ROAD, DHARWAD-580001.
4. SMT.USHA W/O RAJAN TRIVEDI
Digitally signed
by ROHAN
ROHAN
HADIMANI T
Location: HIGH
HADIMANI COURT OF
AGE:MAJOR, OCC:HOUSEWIFE,
KARNATAKA
T DHARWAD
Date: 2023.01.13
11:50:15 +0530 R/O:C/O:S.V.MISHRA, TIKARE ROAD,
DHARWAD-580001.
5. SMT.MEERA W/O PARAS TIWARI
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:C/O:S.V.MISHRA, TIKARE ROAD,
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RSA No. 5994 of 2011
DHARWAD-580001.
6. SMT.ASHA W/O KAMALESH SHUKLA
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:C/O:S.V.MISHRA, TIKARE ROAD,
DHARWAD-580001.
7. SMT.SACHI W/O RAJ SHARMA
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:C/O:S.V.MISHRA, TKARE ROAD,
DHARWAD-580001.
8. SMT.CHANDRAKALA W/O VISHWANATH MISHRA
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:C/O:S.V.MISHRA, TIKARE ROAD,
DHARWAD-580001.
...APPELLANTS
(BY SRI.GIRISH A YADWAD, ADV. FOR SRI.V.P.KULKARNI,
ADV.)
AND:
DAVALATSINGH S/O GAJANANSINGH THAKUR
SINCE DECEASED BY HIS LEGAL HEIRS
1. HEERABAI W/O DAVALATSINGH THAKUR,
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:KAKARGALLI, LINE BAZAR,
DHARWAD-580001.
2. GURUDAYALSINGH @ NITIN S/O DAVALATSINGH
THAKUR
AGE:MAJOR, OCC:BUSINESS, R/O:KAKARGALLI,
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RSA No. 5994 of 2011
LINE BAZAR, DHARWAD-580001.
3. SRI.NAVEENSINGH S/O DAVALATSINGH THAKUR
AGE:MAJOR, OCC:BUSINESS, R/O:KAKARGALLI,
LINE BAZAR, DHARWAD-580001.
4. SMT.SAPNA W/O RAGHAVENDRASINGH
AGE:MAJOR, OCC:HOUSEWIFE, R/O:KAKARGALLI,
LINE BAZAR, DHARWAD-580001.
5. SRI ADITYA A/F, SATYA PRASAD MISHRA
OCC:BUSINESS, R/O:LINE BAZAR,
DHARWAD-580001.
...RESPONDENTS
(BY SRI.S.B.MALLIGWAD, ADV. FOR R1 TO R4; NOTICE TO R5
SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 14.07.2011
PASSED IN R.A.NO.36/1995 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III AT DHARWAD, ALLOWING
THE APPEAL FILED AGAINST THE JUDGMENT DATED
07.04.1995 AND THE DECREE PASSED IN O.S.NO.88/1990 ON
THE FILE OF THE I ADDL.CIVIL JUDGE, DHARWAD, DECREEING
THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.
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RSA No. 5994 of 2011
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Present appeal is filed by the plaintiff, aggrieved by the judgment and order dated 14.07.2011 passed in R.A.No.36/1995 on the file of the Fast Track Court-III, Dharwad (hereinafter referred to as 'the First Appellate Court'), in and by which while allowing the appeal, the First Appellate Court set aside the judgment and decree dated 07.04.1995 passed in O.S.No.88/1990 on the file of the I Additional Civil Judge, Dharwad (hereinafter referred to as 'the Trial Court') and further held that the legal representatives of the plaintiff are entitled for refund of an amount of Rs.25,000/- with interest at the rate of 18% per annum from the date of agreement till the date of payment, subject to establishing their right for refund.
2. The aforesaid suit in O.S.No.88/1990 was filed by Sri.Vishwanath, father of the appellants herein as plaintiff No.1 along with one Sri.Satyaprakash Nandakumar Mishra as plaintiff No.2, who is respondent -5- RSA No. 5994 of 2011 No.5 in the present appeal. In the said suit in O.S.No.88/1990, the said plaintiffs contended that the defendant being the owner, in possession of the suit property bearing Sy.No.23 measuring 19 acres 1 gunta and Sy.No.24 measuring 19 acres 26 guntas, totally measuring 38 acres 27 guntas at Halligeri village in Dharwad had agreed to sell the same to the plaintiffs on 23.09.1985 for a sale consideration of Rs.75,000/- and had executed an agreement of sale in this regard. That the plaintiffs had made part-payment of agreed sale consideration in a sum of Rs.25,000/- to the defendants and it was agreed that balance amount of Rs.50,000/- would be paid by the plaintiffs to the defendant at the time of execution of deed of sale before the concerned Sub- Registrar. That the defendant had agreed to execute such deed of sale in favour of the plaintiffs after having the dispute with the Forest Department settled/resolved. That the plaintiffs were always ready and willing to perform their part of contract by paying balance sale consideration of Rs.50,000/- at any time from the date of agreement of -6- RSA No. 5994 of 2011 sale. Since the defendant failed to perform his part of contract, plaintiffs caused issuance of notice dated 25.06.1990 calling upon the defendant to receive balance sale consideration and to execute deed of sale. Since the defendant failed to comply with the same, the plaintiffs filed suit for specific performance and in the alternative, sought for refund of earnest money of Rs.25,000/- with interest at the rate of 18% per annum.
3. In the written statement, the defendant denied the plaint averments and also questioned the maintainability of the suit on the ground of limitation. It was specifically contended that he had not entered any agreement much less than the one relied upon by the plaintiffs and receipt of Rs.25,000/- is also denied. In that view of the matter, it is contended that there was no necessity for any reply to the notice issued by the plaintiffs. That defendant issued paper publication on 04.07.1990 through his power of attorney holder refuting -7- RSA No. 5994 of 2011 the claim of the plaintiffs having entered into the agreement of sale.
4. Based on the pleadings, the Trial Court framed issues and recorded evidence. The Trial Court by its judgment and decree dated 07.04.1995 decreed the suit and directed the defendant to execute register deed of sale by receiving balance sale consideration of Rs.50,000/- within one month from the date of order and deliver possession of the land to the plaintiffs. Being aggrieved by the same, the defendant preferred an appeal in R.A.No.36/1995 before the First Appellate Court.
5. Considering the grounds urged, the First Appellate Court framed points for consideration and having held that the plaintiffs failed to prove their readiness and willingness, allowed the appeal and dismissed the suit. Being aggrieved by the same, the appellant No.1/plaintiff No.1 is before this Court (plaintiff No.1 having passed away, present appeal is been prosecuted by his legal representatives).
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6. Sri.Girish Yadawad, learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submits that the Trial Court has rightly taken note of the facts of the case as well as the evidence lead in by the parties. In that view of the matter, the Trial Court held that the plaintiffs were always ready and willing to perform their part of contract and that it was the defendant who had not performed his part of contract. Since there was no time stipulated for the purpose of performance of agreement, as such, the plaintiffs having waited for a reasonable time, had caused issue of legal notice at Ex.P4 calling upon the defendant to receive balance sale consideration and to execute deed of sale. Thus, he submits that in the fact situation of the matter, issuance of notice would indicate readiness and willingness of the plaintiffs to perform their part of contract. He further submits that execution of agreement and receipt of Rs.25,000/- by the defendant has been appreciated even by the First Appellate Court. When the agreement in question and receipt of Rs.25,000/- i.e., the earnest -9- RSA No. 5994 of 2011 money is proved, the First Appellate Court ought to have confirmed the decree passed by the Trial Court as there was no other option in law. He submits that since the First Appellate Court while allowing the appeal has directed for refund amount of Rs.25,000/- to be paid at 18% interest, the appellants on the other hand are ready to pay balance sale consideration to the defendants with equal amount of interest and same may have to be considered in favour of appellants. Hence, he submits that the appeal may be allowed to consider the substantial question of law raised.
7. On the other hand, learned counsel for the respondents submits that the subject matter of the agreement is the land measuring 38 acres 27 guntas. That it is incomprehensible that such vast extent of land was agreed to be sold for a paltry sum of Rs.75,000/-; he further submits that in any case being aggrieved by the order impugned in this appeal, plaintiff No.2 had filed separate appeal in RSA No.5814/2011, which appeal was dismissed by this Court by its order dated 09.12.2011. He
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RSA No. 5994 of 2011 further submits that the appellants herein had filed a review petition in RP No.1562/2012 against the said order dated 09.12.2011 and the same was also been dismissed. Thus, he submits that the present appeal has to be dismissed on that count alone as the appellants herein have exhausted all available remedies. He further submits that even on the merit of the case, there is no whisper either in the plaint or in the notice at Ex.P4 regarding the plaintiffs having taken any proactive steps exhibiting their readiness and willingness to perform their part of contract which has been rightly taken note of by the First Appellate Court. He therefore submits that no substantial question of law arises for consideration and seeks for dismissal of the appeal.
8. Heard both the parties. Perused the records.
9. Both the Trial Court and the First Appellate Court concurrently found that there was an agreement entered into between the plaintiffs and the defendants for sale of the subject property for a sum of Rs.75,000/- and
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RSA No. 5994 of 2011 that the plaintiffs had paid Rs.25,000/- towards part- payment of sale consideration. It is settled position of law that relief of specific performance is a discretionary relief. The Court is not bound to grant such relief merely because it is lawful to do so. The Trial Court at paragraph 9 of the judgment while answering issue No.4, has held that the pleading at paragraphs 7 and 8 of the plaint and the evidence of PW1 would establish the contention of the plaintiffs that he was ever ready and willing to perform his part of contract and to pay balance sale consideration amount to the defendant and to get sale deed executed even till today. The evidence of PW1 regarding readiness and willingness to perform his part of contract is not at all challenged in the cross-examination and it is not the contention of the defendant and also that there is no evidence to show that the plaintiffs were not ready and willing to perform their part of contract.
10. The First Appellate Court on the other hand while referring to the factual aspect of the matter as well
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RSA No. 5994 of 2011 as the issuance of notice at Ex.P4 at paragraph 19 of its judgment has held that the plaintiffs did not make any efforts to know about whether the dispute between the defendants and the Forest Department were resolved or not and that the plaintiffs without making any efforts had kept quiet till the year 1990 i.e. after 5 years till issuing the notice. Hence, the First Appellate Court came to the conclusion that the plaintiffs failed to prove that they were ready to perform their part of contract.
11. The Trial Court is in error in casting burden on the defendant to disprove the evidence of PW1 regarding readiness and willingness and expecting the defendant to produce the evidence to the contrary, such an approach is incorrect in view of the settled position of law, as burden is always on the plaintiffs to prove the factum of readiness and willingness under Section 16(3) of the Specific Relief Act. On the other hand, the First Appellate Court found evidence produced by the plaintiffs regarding their readiness and willingness to be insufficient. Except making
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RSA No. 5994 of 2011 bald averment in paragraphs 7 and 8 of the plaint and issuing of notice, the plaintiffs remained quiet for a period of 5 years which conduct has been taken note of by the First Appellate Court to hold lack of readiness and willingness on the part of the plaintiffs. No error or fault in this regard can be found with the finding of the First Appellate Court.
12. As brought to the notice of this Court by the counsel for the respondents, regular second appeal in RSA No.5814/2011 filed by plaintiff No.2 against the impugned judgment and order has been dismissed by this Court vide order dated 09.12.2011, confirming the judgment passed by the First Appellate Court. The review petition filed by the appellants herein is also dismissed.
13. In that view of the matter and the reasons stated hereinabove, this Court is of the considered view that no grounds are made out for interference and no substantial question arises for consideration, as such,
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RSA No. 5994 of 2011 appeal is dismissed. Order of the First Appellate Court is confirmed.
14. In view of the dismissal of the appeal, pending IAs. do not survive for consideration.
15. Learned counsel for the appellants is permitted to file vakalath for one of the legal heirs of original plaintiff.
Sd/-
JUDGE KGK List No.: 1 Sl No.: 32