- 1 - NC: 2025:KHC:17183 RSA No. 418 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 418 OF 2025 (SP) BETWEEN: SRI. SHEIKH ALLABAKASH, SON OF LATE IMAMSAB, AGED 61 YEARS, C/O ABDUL SUBHAN, 7TH WARD, BAGEPALLI TOWN, CHIKKABALLAPUR DISTRICT - 561 207. …APPELLANT (BY SRI. SRINIVASAN T, ADVOCATE) AND: SRI. RAMANJINAPPA @ DISH RAMANJI, SON OF LATE S. NARAYANAPPA, AGED ABOUT 54 YEARS, RESIDING AT NO.26-4-303, PENUKONDA CIRCLE, MELAPURAM, HINDUPUR TOWN, ANANTHAPUR DISTRICT, ANDRA PRADESH -515 201. …RESPONDENT (BY SRI. B.C. VENKATESH, ADVOCATE C/R) THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.02.2024 PASSED IN RA NO.99/2024 ON THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:17183 RSA No. 418 of 2025 DATED 12.07.2024 PASSED IN OS NO.412/2021 ON THE FILE OF LEARNED SENIOR CIVIL JUDGE, BAGEPALLI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed challenging the judgment and decree dated 25.02.2025 passed in R.A.No.99/2024 by the learned 1st Addl. District and Sessions Judge, Chikkaballapura, confirming the judgment and decree dated 12.07.2024 passed in O.S.No.412/2021 by the learned Senior Civil Judge, Bagepalli. 2. For convenience, the parties are referred to, based on their rankings before the trial court. The appellant was the plaintiff, and the respondent was the defendant. 3. Brief facts, leading rise to the filing of this Appeal are as follows: - 3 - NC: 2025:KHC:17183 RSA No. 418 of 2025 The plaintiff filed a suit against the defendant for a specific performance of the contract. It is contended that the defendant is the absolute owner of the suit schedule properties and he agreed to sell the suit schedule properties to the plaintiff for a sale consideration of Rs.8,00,000-00. It was agreed that the remaining consideration amount would be paid at the time of registration of the sale deed within six months. The defendant executed a sale agreement on 07.11.2014. Pursuant to sale agreement, the defendant received a sum of Rs.6,00,000-00 as an advance amount. Further, it is contended that the plaintiff is always ready and willing to perform his part of the contract, but the defendant was not willing to perform his part of the contract. It is contended that, defendant showed his inability in executing the sale deed in view of temporary injunction passed in O.S.No.176/2008. Wherein, the subject matter was regarding the suit properties. But, the said suit was dismissed on 06.02.2021 holding defendant is the owner. The plaintiff, to prove his readiness and willingness, got - 4 - NC: 2025:KHC:17183 RSA No. 418 of 2025 issued a legal notice on 19.03.2021 calling upon the defendant to be present at sub-registrar office on 05.04.2021 for execution of sale deed. The defendant did not reply to the legal notice. Hence, the plaintiff was constrained to file a suit for specific performance of contract. Accordingly, prays to decree the suit. 4. The defendant filed a written statement denying the averments made in the plaint, and it is contended that the defendant is a lawful owner in possession and enjoyment of the suit schedule properties. The defendant had purchased the suit schedule properties for a valuable consideration. It is contended that the defendant, for his urgent family and legal necessities, financial commitment, and the educational purpose of his children, agreed to sell the suit schedule properties in favour of the plaintiff and executed a registered sale agreement in favour of the plaintiff with a condition to execute sale deed within six months. It is contended that the plaintiff, after execution of the registered sale agreement, has not turned up to get - 5 - NC: 2025:KHC:17183 RSA No. 418 of 2025 the suit schedule properties registered in his name. The defendant demanded several times to get the suit schedule properties registered in the name of the plaintiff within six months or as early as possible, but the plaintiff has not performed his part of the contract. It is contended that the time fixed for performance was expired on 05.05.2018. It is contended that the plaintiff was not ready and willing to perform his part of the contract. Hence, the suit filed by the plaintiff is barred by limitation. Accordingly, prays to dismiss the suit. 5. The Trial Court, based on the pleadings of the parties, framed the issues. 6. The plaintiff, to substantiate his case, examined himself as P.W.1, and examined two witnesses as P.Ws.2 and 3, and marked 18 documents as per Ex.P.1 to 18. On the other hand, the defendant examined himself as D.W.1, and marked two documents as per Ex.D.1 and 2. - 6 - NC: 2025:KHC:17183 RSA No. 418 of 2025 7. The Trial Court, on assessing the verbal and documentary evidence, dismissed the suit of the plaintiff with costs vide judgment dated 12.07.2024. 8. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.412/2021, preferred an appeal in R.A.No.99/2024 on the file of the 1st Additional District and Sessions Judge, Chikkaballapura. The First Appellate Court, on reassessing the verbal and documentary evidence, dismissed the appeal vide judgment dated 25.02.2025. 9. The plaintiff, aggrieved by the impugned judgments filed this regular second appeal. 10. Heard the arguments of learned counsel for the plaintiff. 11. Learned counsel for the plaintiff submits that the defendant agreed to sell the suit schedule properties and executed a registered sale agreement. He submits that the defendant also executed a supplementary - 7 - NC: 2025:KHC:17183 RSA No. 418 of 2025 agreement on 11.05.2015, and the plaintiff produced the said document by filing an application for the production of additional evidence in I.A.No.1/2025. He submits that the suit filed by the plaintiff is well within the time from the date of execution of the supplementary agreement dated 11.05.2015, and the plaintiff has established that he is always ready and willing to perform his part of the contract. Both the courts below have recorded a finding that the plaintiff has proved the execution of a registered sale agreement by the defendant in favour of the plaintiff, but dismissed the suit on the ground that the plaintiff has failed to prove the requirements of section 16(c) of the Specific Relief Act, and also dismissed the suit on the ground that, it is barred by limitation. Both the courts below committed an error in passing the impugned judgments. He also submits that the application filed by the plaintiff in I.A.No.1/2025 be allowed, and to buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of Sanjay Kumar Singh vs. State of Jharkhand reported in (2022) 7 SCC - 8 - NC: 2025:KHC:17183 RSA No. 418 of 2025 247. Hence, on these grounds, he prays to allow the appeal. 12. Perused the records, and considered the submissions of the learned counsel for the plaintiff. 13. There is no dispute regarding the execution of the registered sale agreement dated 07.11.2014 by the defendant in favour of the plaintiff. From the perusal of the recitals of the sale agreement dated 07.11.2014, the time was the essence of the contract, the plaintiff ought to have paid the balance sale consideration amount within six months, and get the registered sale deed executed. The plaintiff has not produced any records to demonstrate that the plaintiff issued a legal notice to the defendant after the expiry of six months from the date of execution of the registered sale agreement. The plaintiff has got issued a legal notice on 19.03.2021. The plaintiff has not shown any cause for delay in issuing a legal notice. As observed above, as the time was the essence of the contract, the plaintiff has failed to establish that he is ready and willing - 9 - NC: 2025:KHC:17183 RSA No. 418 of 2025 to perform his part of the contract. The plaintiff has failed to fulfill the requirements of section 16(c) of the Specific Relief Act. Further, the plaintiff should have filed the suit within three years from the expiry of six months as per Article 54, Part I of the Limitation Act. Admittedly, the suit has not been filed within three years from the date of expiry of six months. Hence, the suit filed by the plaintiff is barred by limitation. Both the courts below have rightly recorded a finding of facts that the plaintiff has failed to fulfill the requirements of 16(c) of the Specific Relief Act, and the suit filed by the plaintiff is barred by limitation. I do not find any error in the impugned judgments or any substantial questions of law that arise for consideration in this appeal. 14. The plaintiff has filed an application in I.A.No.1/2025 for the production of additional evidence. In support of the application, he filed an affidavit stating that he had filed a suit for specific performance of a contract regarding the registration of the sale agreement dated - 10 - NC: 2025:KHC:17183 RSA No. 418 of 2025 07.11.2014, and it is stated that on 11.05.2015, the respondent received a sum of Rs.1,50,000-00 in the presence of witnesses to the rejoinder agreement dated 11.05.2015. Further, it is stated that the defendant has clearly stated that he has agreed to sell the suit schedule properties for consideration of Rs.8,00,000-00, and the plaintiff has paid Rs.6,00,000-00 towards the advance sale consideration amount. He has stated that the suit in O.S.No.173/2008 is pending on the file of Senior Civil Judge, Bagepalli, and the defendant admits that he has handed over the possession of the suit schedule properties to the plaintiff in part performance of the contract, and it is stated that at the time of agreement of sale from the year 2015 to 2021, the appellant/plaintiff was residing in Mumbai, and it was only in 2021 that he shifted his residence to Bagepalli. In 2024, while moving, he came across the agreement dated 11.05.2015; as such, he could not produce the same before the court. Hence, the said document goes to the root of the case. Hence, he prays to allow the application. - 11 - NC: 2025:KHC:17183 RSA No. 418 of 2025 15. Perused the contents of an affidavit of the plaintiff. The proposed document produced by the plaintiff creates doubt regarding the supplementary agreement dated 11.05.2015. Though, the sale agreement was executed on 07.11.2014 and the proposed document was executed on 11.05.2015, there is no reference to the supplementary agreement dated 11.05.2015 in the plaint, and further, the said document was not produced before any revenue authorities until it is produced before this Court. Further, the defendant executed the said document in favour of the plaintiff. The plaintiff should have pleaded in the plaint, and also the plaintiff has not stated anything in the evidence regarding the alleged supplementary agreement dated 11.05.2015. The document has not seen the light of day, until the said document is produced before this Court. The object of Order 41 Rule 27 of the CPC is not to fill up a lacuna. The production of additional evidence cannot be entertained as a matter of right. Further, learned counsel for the plaintiff placed reliance on the judgment of the Hon'ble Apex Court in the case of - 12 - NC: 2025:KHC:17183 RSA No. 418 of 2025 Sanjay Kumar Singh supra. The Hon'ble Apex Court at paragraph No.7 has held as under: "7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature." 16. The Hon'ble Apex Court held that where the additional evidence sought to be adduced, removes the cloud of doubt over the case, and the evidence has a direct and vital bearing on the main issue in the suit, and interest of justice renders it imperative that, it may be allowed to be permitted on record, such application may be allowed. Admittedly, in the instant case, the suit for - 13 - NC: 2025:KHC:17183 RSA No. 418 of 2025 specific performance of the contract is filed based on the registered sale agreement dated 07.11.2014 and not on the supplementary agreement dated 11.05.2015. At the cost of repetition, there is no reference of the alleged supplementary agreement dated 11.05.2015 in the plaint, relief and evidence. The said document creates doubt about the genuineness of the alleged supplementary agreement. Hence, the plaintiff has failed to establish the requirements of Order 41 Rule 27 of the CPC. Hence, I do not find any grounds to entertain and allow I.A.No.1/2025. The ruling relied upon by the learned counsel for the plaintiff is not applicable to the case on hand. 17. In view of the above discussion, I proceed to pass the following order: ORDER i. The Appeal is dismissed. ii. The impugned judgments, and decree passed by the Courts below, are hereby confirmed. - 14 - NC: 2025:KHC:17183 RSA No. 418 of 2025 iii. I.A. No.1/2025 is rejected, and in view of the dismissal of the appeal, I.A.No.2/2025 does not survive for consideration. Accordingly, disposed of. iv. No order as to the costs. Sd/- (ASHOK S.KINAGI) JUDGE HDK List No.: 1 Sl No.: 30 CT: BHK