Karnataka High Court
Dasara Narayanamurthy vs Sri Kamavarada Pompanna on 25 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2025:KHC-D:13246-DB
RFA No. 100250 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 25TH DAY OF SEPTEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100250 OF 2019 (SP-)
BETWEEN:
DASARA NARAYANAMURTHY
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1. SMT. LAKSHMI @ LAKSHMAMMA
W/O. LATE DASARA NARAYANAMURTHY,
AGED ABOUT 34 YEARS,
OCC: AGRICULTURE
AND MEMBER KURUGODU MUNICIPALITY,
2. KUMAR D. GANESH
YASHAVANT S/O. LATE DASARA NARAYANAMURTHY,
NARAYANKAR
AGED ABOUT 14 YEARS, OCC: STUDENT,
Digitally signed by
YASHAVANT
NARAYANKAR
Location: HIGH COURT
OF KARNATAKA
3. KUMAR D. PRAVEEN KUMAR,
DHARWAD BENCH
DHARWAD
S/O. LATE DASARA NARAYANAMURTHY,
AGED ABOUT 11 YEARS, OCC: STUDENT,
4. KUMAR D. VARUN KUMAR,
S/O. LATE DASARA NARAYANAMURTHY,
AGED ABOUT 9 YEARS, OCC: STUDENT,
APPELLANT NOS.2 TO 4 SINCE MINORS,
REPRESENTED BY THEIR NATURAL MOTHER
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NC: 2025:KHC-D:13246-DB
RFA No. 100250 of 2019
HC-KAR
GUARDIAN,
APPELLANT NO.1 SMT. LAKSHMI @ LAKSHMAMMA
R/O. NEAR FIRE OFFICE, BALLARI ROAD,
NEAR APMC, KURUGODU VILLAGE AND TALUK,
BALLARI DISTRICT - 583116.
...APPELLANTS
(BY MS. GAYATRI S.R., ADVOCATE;
A2-A4 ARE MINORS, A1 IS APPOINTED AS
MOTHER/GUARDIAN OF A2-A4)
AND:
SRI. KAMAVARADA POMPANNA,
S/O. K. ERAIAH SHETTY,
AGED ABOUT 78 YEARS,
R/O: NEAR NEELAMMA MATHA,
KURUGODU VILLAGE,
BALLARI TALUK AND DISTRICT,
DIST: BALLARI-583116.
...RESPONDENT
(BY SRI. B. CHIDANANDA, ADVOCATE FOR C/R)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER XLI RULE 1 OF CODE OF CIVIL PROCEDURE PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 28.02.2019 IN
O.S.NO.66/2018 ON THE FILE OF I ADDITIONAL SENIOR CIVIL
JUDGE, BALLARI CONSEQUENTLY DISMISS THE SUIT AND ETC.
THIS APPEAL IS COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
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NC: 2025:KHC-D:13246-DB
RFA No. 100250 of 2019
HC-KAR
THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal is filed by the defendant in O.S.No.66/2018 against the judgment and decree dated 28.02.2019 passed by the I-Additional Senior Civil Judge, Ballari1, whereby the suit filed by the respondent-plaintiff against the defendant for specific performance of the sale agreement dated 08.05.2015 and for other reliefs was decreed in favour of the respondent-plaintiff and against the appellant-defendant by the Trial Court.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The plaintiff instituted the aforesaid suit, inter alia, contending that on 08.05.2015, Dasara Narayanamurthy, the husband of appellant No.1 and father of appellant Nos.2 and 3 had executed a registered sale agreement dated 08.05.2015 agreeing to sell the suit schedule property i.e., the land bearing Survey No. 484/D1 measuring 6 Acres 88 cents situated at 1 Hereinafter referred to as 'Trial Court' -4- NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR Kurugodu village, Ballari in favour of the plaintiff for a total sale consideration of ₹15,50,000/-. It was contended that as per the aforesaid registered agreement of sale dated 08.05.2015, a sum of ₹15,00,000/- was paid by the plaintiff to the defendant towards advance and part sale consideration. It was further contended that on 09.03.2018, the plaintiff got issued a legal notice to the defendant calling upon him to receive the balance sale consideration and execute a registered sale deed in favour of the respondent-plaintiff and since the defendant did not come forward and refused to perform his part of contract on repeated request made by the plaintiff, the plaintiff instituted the aforesaid suit seeking specific performance and other releifs.
4. The defendant filed his written statement disputing and denying the various allegations and claim made by the plaintiff and contended that the said agreement of sale was result/outcome of undue influence, coercion and duress etc., practiced on the defendant and that the plaintiff took advantage of the bad habits of the defendant such as drinking alcohol, playing cards, etc., and got executed the sale agreement in his favour. It was also contended that the suit schedule property is -5- NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR the ancestral property and the defendant did not have absolute right to execute the said sale agreement in favour of the plaintiff. It was, therefore, contended that there was no merit in the suit and same was liable to be dismissed.
5. Based on the aforesaid pleadings of the parties, the Trial Court framed following:
ISSUES
1. Whether the plaintiff proves that the defendant has executed the agreement of sale deed on 8.5.2015 by receiving part consideration of Rs.15,00,000/-?
2. Whether the plaintiff is ready and willing to perform his part of contract?
3. Whether the defendant proves that, signature was taken by the plaintiff forcibly and created the document?
4. Whether the plaintiff is entitled to the relief as claimed?
5. What Order or Decree?
6. The plaintiff examined himself as PW1 and two witnesses on his behalf as PW2 and PW3 and documentary evidence at Exs.P1 to P10 were marked. The defendant -6- NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR examined himself as DW1 and documentary evidence at Ex.D1 to Ex.D6 were marked. After hearing the parties, the Trial Court answered issue No.1 in the affirmative by holding that the plaintiff had proved that the defendant had executed an agreement of sale dated 08.05.2015 for total sale consideration of ₹15,50,000/- and had paid advance sum of ₹15,00,000/- to the defendant towards advance and part sale consideration. The Trial Court also came to the conclusion that the plaintiff was ready and willing to perform his part of the contract. Further, the Trial Court held that the defendant had failed to establish that his signature was taken by the plaintiff forcibly and the plaintiff had created the sale agreement. Under these circumstances, the Trial Court proceeded to decree the suit granting specific performance in favour of the plaintiff against the defendant, who is before this Court by way of the present appeal.
7. During the pendency of the present appeal, the plaintiff filed application, I.A.No.1/2025, seeking amendment of the plaint to incorporate the alternative relief/prayer for refund of earnest money/advance amount of ₹15,00,000/- paid by him to the defendant together with interest @ 9% per annum from -7- NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR the date of agreement of sale dated 08.05.2015 till realisation.
The appellant-defendant has filed objections to the said application.
8. Heard the learned counsel appearing for the appellant-defendant and learned counsel for the respondent- plaintiff and perused the material on record. The following points arise for consideration in the present appeal:
(i) Whether the application, I.A.No.1/2025 filed by the respondent/plaintiff deserves to be allowed?
(ii) Whether Trial Court was justified in passing the decree for specific performance in favour of the respondent-plaintiff and against the appellant-
defendant?
(iii) Whether the impugned judgment and decree passed by the Trial Court warrants interference by this Court in the present appeal?
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR Regarding Point No.(i):
9. As noticed earlier, the plaintiff, who claimed to be the holder of an agreement of sale from the defendant, sought for the relief of specific performance directing the defendant to receive the balance sale consideration of ₹50,000/- from the plaintiff and execute registered sale deed in favour of the plaintiff in terms of the registered agreement of sale at Ex.P1 dated 08.05.2025 executed by the defendant in favour of the plaintiff. Though it was permissible for the plaintiff to seek for alternative prayer/relief of refund of earnest amount, the plaintiff did not seek any such alternative prayer/relief of refund of the advance amount. In the present appeal, the plaintiff has now filed an application, I.A.No.1/2025, seeking alternative relief/prayer for refund of advance amount, which reads as under:
"APPLICATION UNDER ORDER 6 RULE 17 READWITH SECTION 107 & 151 OF CODE OF CIVILPROCEDURE FOR AMENDMENT OF PLAINT The Respondent respectfully submits as under:
For the reasons stated in the accompanying affidavit the Respondent/Plaintiff may kindly be permitted to amend the to amend the cause title & further to make -9- NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR alternative/additional prayer for refund of earnest money/amount of Rs. 15 Lakhs (Fifteen Lakhs) along with interest at the rate of 9% P.A. from the date of agreement dated 08-05-2015 till actual realization to the Plaintiff, in the interest of justice and equity.
PROPOSED AMENDMENT OF PLAINT IN THE CAUSE TITLE Dasara Narayanamurthy since dead By his Legal Representatives
1) Smt. Lakshmi @ Lakshmamma W/o Late Dasara Narayanamurthy, Aged about 34 Years, Occ: Agriculture, And Member Kurugodu Municipality.
2) Kumar. D. Ganesh S/o Late Dasara Narayanamurthy, Aged about 14 Years, Occ: Student
3) Kumar D. Praveen Kumar S/o Late Dasara Narayanamurthy, Aged about 11 Years, Occ: Student
4) Kumar D.Varunkumar S/o Late Dasara Narayanamurthy, Aged about 09 Years, Occ: Student, Appellants 2 to 4 since minors, Represented by their Natural Mother Guardian Appellant No:1 Smt. Lakshmi @ Lakshmamma, R/o Near Fire Office, Ballari Road, Near APMC, Kurugodu Village & Taluk, Ballari Dist: 583 116.
....AS DEFENDANTS 1 TO 4 The Original defendant Dasara Narayanamurthy Expired after the Judgment i.e. on 31-03-2019 and
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR O.S.66/2018 was decreed on 28-02-2019. His legal heirs preferred the RFA directly. Hence amendment of cause title is required.
Paragraph 10 (b) (b) in Prayer column "Alternatively, direct the Defendants/Appellants herein to refund the Plaintiff, the earnest money/amount of Rs.15 Lakhs (Fifteen Lakhs) along with interest at the rate of 9% P.A. from the date of agreement dated 08-05- 2015 till actual realization, in the interest of justice an equity."
Sd/-
Ballari Advocate for Respondent
Date:/09/2025 (B.CHIDANANDA)"
10. In addition to seeking the alternative prayer/relief for refund of advance amount together with interest @ 9% per annum, the plaintiff also seeks amendment of cause title of the plaint, which is not required since the legal representatives of deceased defendant are already on record as appellants in the present appeal.
11. As can be seen from the aforesaid amendment to the plaint, all that the plaintiff seeks to incorporate is an alternative
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR relief/prayer of refund, which is permissible under Section 22 of the Specific Relief Act, 19632, which reads as under:
"22. Power to grant relief for possession, partition, refund of earnest money, etc.--
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1 [made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provident that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.2
Hereinafter referred to as 'the Act of 1963'
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21."
12. A plain reading of the aforesaid provision will clearly indicate that, it is statutorily permissible for the plaintiff to seek for amendment of his plaint by incorporating an additional prayer/relief for refund in addition to relief of specific performance. Sub-Section (2) of Section 22 of the Act of 1963 states that no relief including relief of refund shall be granted by the Court unless it has been specifically claimed by the plaintiff. The proviso statutorily permits the plaintiff to amend the plaint by including a claim for such relief. It follows therefrom that the statutory amendment permitted by virtue of proviso to sub- section 2 of Section 22 of the Act of 1963 clearly enables the plaintiff to seek amendment of the plaint by seeking additional relief of refund and other reliefs as contemplated under the said provision.
13. In the instant case, it is undisputed fact, as borne out from the records, that the plaintiff did not put forth or seek the prayer for refund in the original plaint and restricted his claim
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR only to the relief of specific performance. However, having regard to the provisions contained under Section 22(2) of the Act of 1963, we are of the considered opinion that the application, I.A.No.1/2025, seeking amendment filed by the plaintiff deserves to be allowed to the extent of seeking alternative relief of refund of earnest money.
14. In identifal circumstances, in the case of Desh Raj and others vs. Rohtash Sing3 in relation to permissibility of seeking amendment in a suit for specific performance by incorporating additional relief of refund, the Hon'ble Apex Court has held as under:
"33. Firstly, we may refer to Section 22 of the Specific Relief Act of 1963 (hereinafter "the SRA Act") which provides that any person suing for the specific performance of the contract for the transfer of property may ask for -- (a) possession or partition and separate possession of the property in addition of such performance OR (b) such person may seek any other relief to which he is entitled to "including the refund of any earnest money or deposit paid or made by him" in case his claim for specific performance is refused. However, sub-section (2) thereof puts a caveat that the 3 (2023) 3 SCC 714
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR abovementioned reliefs shall not be granted by the court unless "it has been specifically claimed". The proviso to sub-section (2) further says that even if such relief was not specifically claimed in the plaint, it is the discretion of the court to permit the plaintiff to amend the plaint "at any stage of the proceedings" and allow him to include the claim for refund of the earnest money or deposit paid.
34. xxx
35. On a plain reading of the above-reproduced provision, we have no reason to doubt that the plaintiff in his suit for specific performance of a contact is not only entitled to seek specific performance of the contract for the transfer of immovable property but he can also seek alternative relief(s) including the refund of any earnest money, provided that such a relief has been specifically incorporated in the plaint. The court, however, has been vested with wide judicial discretion to permit the plaintiff to amend the plaint even at a later stage of the proceedings and seek the alternative relief of refund of the earnest money. The litmus test appears to be that unless a plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment, no such relief can be granted to him. The prayer clause is a sine qua non for grant of decree of refund of earnest money."
(emphasis supplied)
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR
15. In the instant case also, having regard to the fact that the plaintiff had restricted his claim only for decree for specific performance, in view of the statutory amendment permissible under Section 22(2) of the Act of 1963, we are of the considered opinion that the plaintiff would be entitled to seek amendment of the plaint and therefore, I.A.No.1/2025 deserves to be allowed.
16. Insofar as contention urged on behalf of the appellants that the application is not maintainable, considering Order VI Rule 17 of the Code of Civil Procedure, 19084, which mandates that due diligence ought to have been shown by the plaintiff, who has not explained as to why it was not permissible for him to seek amendment in the suit is concerned, as stated supra, the proposed amendment invoking Section 22(2) of the Act of 1963 is governed by the said provision, in particular, the proviso to Section 22(2), which enables the applicant and permits a statutory amendment by incorporating the additional prayer and as such, the said contention urged on behalf of the appellant cannot be accepted.
4 Hereinafter referred to as 'CPC'
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR
17. In view of the aforesaid facts and circumstances, we are of the considered opinion that I.A.No.1/2025 filed by the respondent-plaintiff deserves to be allowed and accordingly answer point No.(i) in the affirmative. Regarding Point No.(ii):
18. A perusal of the material on record including the impugned judgment and decree will indicate that while answering Issue No.1, the Trial Court considered and appreciated the entire material on record including the pleadings and evidence of the parties coupled with the fact that Ex.P1 was the registered agreement of sale dated 08.05.2015 and the fact that the appellant/defendant, who had taken up specious specific plea of fraud, coercion, undue influence, etc., had failed to establish the same by adducing the legal and acceptable evidence. The Trial Court also took into account that the evidence of the plaintiff (PW1) and two witnesses i.e. PW2 and PW3, who were witness and scribe to Ex.P1, was not discarded or impeached in the cross-examination and the said evidence was sufficient to prove the execution of Ex.P1 and payment of sum of ₹15,00,000/- by the plaintiff in favour of the defendant towards
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR advance and part of the sale consideration. While recording the said finding the Trial Court has held as under:
"REASONS
12. Issue Nos.1 to 3:- To avoid the repetition of facts, I would like to take all issues together for my discussion.
According to the plaintiff, the defendant has executed the agreement of sale deed on 8.5.2015 by receiving the part consideration amount of Rs. 15,00,000/-. He is ever ready and willing to perform his part of contract and got issued legal notice to the defendant, neither the defendant replied to the said notice nor executed the sale deed. To prove the facts, the plaintiff has been examined as PW.1 and got marked as Ex.P.1 to P.10 documents. Ex.P.1 is the agreement of sale deed executed by defendant on 8.5.2015, it is an registered document signed by witnesses. Ex.P.2 is the Encumbrance Certificate, Ex.P.3 is the ROR, which discloses that the defendant is the owner of the suit property. Ex.P.4 is the legal notice issued by the plaintiff through the counsel, wherein calling upon the defendant to execute the sale deed by receiving the remaining balance consideration amount. Ex.P.5 is the another legal notice dated 9.3.2018. Ex.P.6 is the discloses notice was served on defendant. Ex.P.7 is the gazette notification dated 6.10.2016 regarding the fixation of value of the property and Ex.P.8 is the list regarding the fixation of amount in respect of Kurugodu village, wherein dry land is fixed at
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR Rs.60,000/- per acre and wet land is fixed Rs.1,70,000/-, Rs.1,10,000, Rs.1,10,000 and Rs.1,25,000/-. On the basis of the situation of the lands. Ex.P.9 is the income tax return submitted by the plaintiff. Ex.P.10 is the endorsement given by the tax department.
13. On the basis of the document, the plaintiff got examined as PW.1 and stated about the averments made out in the plaint. In the cross examination also he stated that about 20 years back, he retired from service as a Headmaster and out of retirement amount and amount of his land, he has given the amount and he is income tax payee. In the cross examination he is clearly stated that, in the sub registrar office he has paid the amount at that time of Shekarppa, Kalleshi and Gangandhar were present and wife of the defendant is also present. In the cross examination he admits that the market rate is 10% double of the valuation fixed by the Sub registrar and he has not shown the details to the income tax regarding agreement of sale deed. Further he stated that he was the retired employee and his sons were also getting income and daughter in law also in service.
14. To the support of his evidence, the plaintiff has examined two witnesses as PW.2 and 3. PW.2 is the attesting witness by name Shekarappa who supported the evidence of plaintiff and his signature on Ex.P.1 which is marked as Ex.P.1(b). In the cross examination also stated that he was present at the time of transaction of the land and prior to 15 days back. The defendant proposed to sell the property. Further he stated that at the time of writing
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR the document, the plaintiff, defendant, his wife and one Gangadhar were present and he was handed over the amount to the defendant.
15. PW.3 is the document writer, who stated that Ex.P.1 was written by him and it was drafted in the presence of plaintiff and defendant and two witnesses. PW.3 is also identified his signature which is marked as Ex.P.1(e). In the cross examination also PW.3 stated that before day Pompanna and Narayanamurthy informed him to a right agreement of sale deed. Accordingly, he was drafted. In the cross-examination also he stated that, after drafting agreement of sale deed it was signed by the parties outside and inside of the Sub-registrar office and got registered.
16. The defendant who denied the execution of agreement of sale deed by taking contention that, he was addicted bad voices and plaintiff fraudulently got executed the document. In the cross-examination DW.1 shown his ignorance regarding his wife is the Member of Municipality, Shekappa belongs to his community and executed the registered agreement sale deed in favour of the plaintiff on 8.5.2015, received Rs.15,00,000/- on that day, remaining amount has to be paid at the time of registration of sale deed, he has received Rs.15,00,000/- at Sub-registrar office, after request by the plaintiff he has not executed the sale deed by receiving Rs.50,000/-, plaintiff issued legal notice through counsel, it was received by him and not replied, at the time of execution of agreement of sale deed he was good health condition. He admits that, he had no
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR habit of drinking alcohol, playing card and no other habits to him. He has shown ignorance that, plaintiff was retired Teacher, his wife had 70 N.A. plots, his sons Engineer and Lecturer, daughter-in-law is also in service, at the time of Election he spent Rs.15 to Rs.20 Lakhs to his wife, value of the land is Rs.10,00,000/- as stated by him and value of the land is per acre Rs.1,25,000/- and he spent amount to the election from taking plaintiff. The defendant has produced six documents to show that, he was taking treatment at Danamma Super Speciality Hospital, Ballari from 2016.
17. The burden is on the plaintiff to prove that, Ex.P.1 is executed by defendant by receiving Rs.15,00,000/- and got executed registered agreement of sale deed from defendant. The plaintiff who is examined as PW.1 to the support of his evidence and to prove Ex.P.1 agreement of sale deed examined two witnesses as PW.2 and 3 i.e., one of the witness and scribe as contemplated in the Evidence Act to prove the document. Nothing is elicited in the cross-examination of PW.2 and 3. By adducing the evidence plaintiff has proved the Ex.P.1 agreement of sale deed. The defendant in the cross-examination shown his ignorance regarding execution of agreement of sale deed, receiving the amount and also his family matters. Moreover the main contention taken by the defendant is that, he is addicted to the bad voices and by taking advantage plaintiff got fabricated the document. But in the cross-examination he admitted that, he is not at all addicted any bad voices. The documents produced by the defendant itself shows
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR that, he is taking treatment from 2016 and facing financial problem. The value of the land is also proved by the plaintiff by producing valuation list of the Sub-registrar. The oral evidence is coupled with the documentary evidence. At the time of arguments the counsel for the defendant relied a decision which is reported in SCCR 2018 page-831 in a case of Lakshmi Srinivas Co-operative building Society Vs. Puvvada Rama (Dead) by Lrs and others. Wherein their Lordship's held that, A. Specific Relief Act, 1963-Section 16(c) Specific performance of agreements of sale-Suit agreements are unregistered- Defendants have denied having signed any such agreement- No attempt was made by appellant/plaintiff to confront defendants and discharge burden by examining any handwriting expert-Appellant/ plaintiff cannot be permitted to take relief claimed in suit any further sans proof of execution of suit agreements in respect of which relief of specific performance is sought-All other issues would recede in background-suit filed by appellant/plaintiff deserves to be dismissed with costs-Appeals dismissed.
18. Further relied another decision of 2018 SCCR 972 in a case of ViJay Kumar & others Vs. Om Parkash. Wherein Lordship's held that, Agreement to Sell-Decree for Specific Performance-Relief for specific performance is
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR purely discretionary-In order to obtain decree for specific performance, plaintiff has to prove his readiness and willingness to perform his part of contract-Readiness and willingness has to be shown throughout and has to be established by plaintiffImpugned decree reversed and earnest money to be refunded to respondent-pf. (Specific Relief Act, 1963-Section 20)
19. There is no dispute regarding the decisions relied by the counsel for the defendant. In the present case on hand, defendant has executed the agreement of sale deed before the Sub-registrar office. Therefore decisions relied by the counsel for the defendant is not applicable to the present case on hand. Considering the oral and documentary evidence on record, I am of the opinion that, defendant has executed the agreement of sale deed in favour of the plaintiff. The denial of the execution of agreement of sale deed itself shows the attitude of the defendant, who is not ready and willing to perform his part of contract. On the contrary, the plaintiff has proved that, he is ready and willing to perform his part of contract. Hence plaintiff is entitle to the relief as claimed. The main contention taken by the defendant is that, the plaintiff has taken signature forcibly and created the document, but he has not produced any document to show that, he has taken action against the plaintiff. Accordingly, I answer issue No.1 and 2 in the affirmative and issue No.3 in the negative."
19. As can be seen from the aforesaid findings recorded by the Trial Court, the entire material on record comprising of
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR the pleadings and evidence, the plaintiff had proved due execution of the sale agreement dated 08.05.2015 by the defendant, which was a registered agreement of sale and had received advance sale consideration of ₹15,00,000/- from the plaintiff. The Trial Court also came to the conclusion that the defendant had failed to prove that his signature was taken by the plaintiff forcibly and that the plaintiff had created the sale agreement at Ex.P1 and accordingly, Issue Nos.1 and 3 were answered in favour of the plaintiff and against the defendant.
20. Upon reconsideration, revaluation and re- appreciation of the entire material on record, we are of the considered opinion that the Trial Court was fully justified in answering Issue Nos.1 and 3 in favour of the plaintiff and against the defendant by holding that the sale agreement dated 08.05.2015 and payment of advance sale consideration of ₹15,00,000/- was proved and that the defendant had failed to prove his defence and recording of findings in this regard, which cannot be said to be capricious or perverse or illegal warranting interference by this Court in the present appeal. Accordingly, the
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR findings recorded by the Trial Court on Issue Nos.1 and 3 are required to be affirmed.
21. Insofar as the finding recorded by the Trial Court on Issue No.2 relating to readiness and willingness on the part of the plaintiff to perform his part of contract is concerned, the Trial Court failed to consider and appreciate that long inordinate delay and laches and inaction on the part of the plaintiff in not taking any steps to enforce the sale transaction from the date of execution of sale agreement dated 08.05.2015 till he issued legal notice to the defendant at Ex.P4 dated 23.05.2017 and Ex.P5 dated 09.03.2018. Even in his evidence, the plaintiff has failed to establish that he was ready and willing to perform his part of contract. In fact, there is absolutely no reasoning in the impugned judgment as regards the plaintiff having established readiness and willingness to perform his part of contract and all that the Trial Court says is, that the denial of the sale agreement by the defendant itself is sufficient to hold that the plaintiff has proved his readiness and willingness, which is completely erroneous and unsound. Under these circumstances, we are of the considered opinion that the finding recorded by the Trial
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR Court in answering Issue No.2 in favour of the plaintiff by coming to the conclusion that the plaintiff was ready and willing to perform his part of contract deserves to be set aside. Accordingly, Point No.(ii) is answered by confirming the impugned judgment insofar as it relates to findings on Issue No.1 and 3 are concerned and setting aside the findings of the Trial Court on Issue No.2.
Regarding Point No.(iii)
22. While dealing with the Point No.(i), we have come to the conclusion that the application, I.A.No.1/2025, filed by the plaintiff seeking alternative relief/prayer of refund of advance amount deserves to be allowed and as we have allowed I.A.No.1/2025 for amendment of the prayer for refund of the advance amount. So also while dealing with point No.(ii) we have confirmed the findings of the Trial Court as regards proof of execution of the sale agreement dated 08.05.2015 at Ex.P1 as well as payment of sum of ₹15,00,000/- by the plaintiff to the defendant towards advance and part sale consideration by rejecting the defence put forth by the defendant, however Issue No.2 answered in favour of the plaintiff by the Trial Court is set
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR aside by us while dealing with point No.(ii) supra. It follows therefrom that the plaintiff, who has failed to establish that he was ready and willing to perform his part of the contract in terms of Section 16© of the Act of 1963, would not be entitled to the relief of specific performance and the impugned judgment granting specific performance in favour of the plaintiff would necessarily have to be set aside.
23. Further, having allowed I.A.No.1/2025 filed by the plaintiff permitting him to incorporate alternate relief/prayer for refund of advance amount of ₹15,00,000/- paid by him to the defendant, the next question that arises for our consideration is the nature of relief or order to be passed in the present appeal for having set aside the decree for specific performance. As started earlier, the finding of the Trial Court on Issue No.1 that the plaintiff had established that he had paid a sum of ₹15,00,000/- by way of advance and part sale consideration on 08.05.2015 has been confirmed by us. Under these circumstances, we are of the considered opinion that having regard to setting aside the decree for specific performance of contract and allowing the alternative relief/prayer for refund of
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR the advance sale consideration of ₹15,00,000/- paid by him to the defendant by allowing I.A.No.1/2025, the plaintiff would be entitled for refund of the advance sale consideration of ₹15,00,000/- paid by him to the defendant by suitably modifying the impugned judgment and decree.
24. Insofar as the rate of interest payable by the appellant-defendant to the respondent-plaintiff on the aforesaid advance sale consideration of ₹15,00,000/- is concerned, in view of the principles contained under Section 34 of CPC, we deem it just and proper to direct the appellant-defendant to pay interest @7.5% per annum from the date of execution of sale agreement i.e., 08.05.2015 till realisation and Point No.(iii) is answered accordingly. Hence, the following:
ORDER
i) The appeal is partly allowed.
ii) The impugned judgment and decree 28.02.2019 in O.S.No.66/2018 passed by the I-Additional Senior Civil Judge, Ballari, insofar as it relates to granting decree for specific performance of sale
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR agreement dated 08.05.2015 is hereby set aside.
iii) I.A.No.1/2025 filed by the respondent-plaintiff for amendment of plaint seeking additional prayer/relief for refund of advance amount of ₹15,00,000/- is allowed.
iv) The respondent-plaintiff shall carry out the amendment of the plaint in respect of alternate relief/prayer for refund of advance amount of ₹15,00,000/-, forthwith.
v) The impugned judgment and decree passed by the Trial Court is modified and decreed with costs throughout by granting alternate relief/prayer for refund of advance amount of ₹15,00,000/- paid by the plaintiff, with interest and costs.
vi) The legal heirs of the defendant i.e., the appellants herein shall pay the said amount together with interest @7.5% per annum from
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NC: 2025:KHC-D:13246-DB RFA No. 100250 of 2019 HC-KAR the date of execution of the sale agreement dated 08.05.2015 till realisation with costs.
vii) Registry to draw the modified decree accordingly.
Sd/-
(S.R. KRISHNA KUMAR) JUDGE Sd/-
(C.M. POONACHA) JUDGE YAN CT-MCK List No.: 1 Sl No.: 6