- 1 - NC: 2025:KHC:6839 RSA No. 402 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR SECOND APPEAL NO. 402 OF 2015 (SP-) BETWEEN: 1. SRI. MAHADEVAPPA SINCE DEAD BY HIS LRS. 1(a) SMT. GOWRAMMA W/O MAHADEVAPPA, AGED ABOUT 60 YEARS, 1(b) SRI. GANGADHARA M S.O MAHADEVAPPA, AGED ABOUT 43 YEARS, BOTH ARE RESIDING AT KANENUR VILLAGE, ULLAHALLI HOBLI, NANJANAGUD TALUK, MYSORE DISTRICT - 571 301. …APPELLANTS (BY SRI. DIVAKARA P S., ADVOCATE) AND: 1. SRI. PARVATHAPPA S/O. LATE. PUTTAPPA, AGED ABOUT 70 YEARS Digitally signed by VEDAVATHI A K Location: High Court of Karnataka - 2 - NC: 2025:KHC:6839 RSA No. 402 of 2015 2. SMT. MALIGAMMA W/O PARVATHAPPA, AGED ABOUT 60 YEARS, 3. SMT. SHAILAJA D/O PARVATHAPPA AGED ABOUT 27 YEARS 4. SMT. SAROJA D/O PARVATHAPPA AGED ABOUT 24 YEARS 5. KUMARA S/O PARVATHAPPA AGED ABOUT 24 YEARS ALL ARE R/AT JOGIPALYA VILLAGE, ULLAHALLI HOBLI, NANJANAGUD TALUK, MYSORE DISTRICT - 571 301. …RESPONDENTS (R1 TO R5 SERVED, UNREPRESENTED) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED:6.12.2014 PASSED IN R.A.NO.67/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., NANJANGUD, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED:30.3.2013 PASSED IN OS.NO.20/2010 ON THE FILE OF THE ADDL. CIVIL JUDGE & JMFC., NANJANGUD. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:6839 RSA No. 402 of 2015 CORAM: HON'BLE MR JUSTICE K.NATARAJAN ORAL JUDGMENT This second appeal is filed by the appellant under Section 100 of CPC for setting aside the judgment and decree passed by the Senior Civil Judge and JMFC, Nanjangud, in R.A. No.67/2013 dated 06.12.2014, whereby the first appellate Court has set aside the judgment dated 30.03.2013 passed by the Additional Civil Judge and JMFC, Nanjangud, in O.S. No.20/2010 and allowed the appeal filed by the respondents- defendants directing the defendants to pay the plaintiff Rs.35,000/- with interest at 12% per annum towards earnest money. 2. Heard the arguments of Learned Counsel for the appellant. Respondents are served and unrepresented. 3. The rank of the parties before the trial Court is retained for the sake of convenience. - 4 - NC: 2025:KHC:6839 RSA No. 402 of 2015 4. The case of the plaintiff before the trial court is that the plaintiff and defendants entered into an agreement of sale dated 13.05.2009 for the purchase of suit schedule property, and the sale consideration of suit schedule property was Rs.40,000/-. The plaintiff paid Rs.35,000/- as earnest money and the balance of Rs.5,000/- was payable to the defendants at the time of execution of sale deed. Subsequently, the defendants did not execute the sale deed. Hence, notice was issued to the defendants, who appeared before the trial court and filed written statement admitting the agreement of sale and contended that the sale consideration was Rs.1,80,000/-. The defendants contended that they have received Rs.80,000/- as advance money and Rs.1,00,000/- was payable by the plaintiff at the time of execution of the sale deed. It is contended that the defendants were totally illiterate and innocent and taking advantage of their innocence, the plaintiff manage the agreement of sale and filed the present suit. The recitals of the agreement was not at all read over to the defendants by the scribe. It was also contended that the suit schedule property worth Rs.3 lakhs but for their legal necessity, they had agreed to sell the same for Rs.1,80,000/-. The - 5 - NC: 2025:KHC:6839 RSA No. 402 of 2015 defendants were not prepared to comply with the terms of the agreement. On the other hand, they were prepared to pay the earnest money received from the plaintiff with interest. Therefore, prayed for dismissing the suit. 5. Based upon the pleadings, the trial court framed for issues as under : [1] Whether plaintiff proves that defendants have agreed to sell the suit schedule property for a valuable consideration of Rs.40,000/- by receiving an advance sale consideration of Rs.35,000/- under the registered agreement of sale dated 13/05/2009? [2] Whether plaintiff proves that he was and is ever ready and willing to perform his part of agreement and willing to perform his part of contract?. [3] Whether plaintiff is entitled for the relief's as sought for in the suit ? [4] What Order or Decree ? 6. In order to prove their case, the plaintiff was examined himself as P.W.1 and examined another witness as - 6 - NC: 2025:KHC:6839 RSA No. 402 of 2015 P.W.2 and marked three documents as per Exs.P1 to P3. The first defendant was examined himself as D.W.1 and no documents were marked on their behalf. After hearing the arguments, the trial court answered issue Nos.1 to 3 in the affirmative and decreed the suit in favour of the plaintiff directing the defendants to execute the sale deed by receiving Rs.5000/- towards balance sale consideration. Being aggrieved by the same, the defendants approached the first appellate court in R.A. No.67/2013 whereby the first applet court allowed the appeal of the defendants and directed the plaintiff to receive Rs.35,000/- with interest at 12% per annum. Being aggrieved by the order of the first appellate court, the plaintiff is before this Court. 7. This Court while admitting the appeal, framed the substantial questions of law, which reads as under : a. Whether the first appellate Court was justified in rejecting the relief of specific performance of an agreement of sale on the ground that the discretion exercised by the Trial Court was not proper, even after the defendant had admitted the agreement and agreed to execute the sale deed on receipt of a further sum of ₹1,00,000/-? - 7 - NC: 2025:KHC:6839 RSA No. 402 of 2015 8. Learned counsel for the appellant has contended that the first appellate court has committed an error in reversing the judgment of the trial court, even though the very defendants admitted in cross-examination of the receipt of Rs.35,000/- as earnest money towards agreement of sale. However, the contention of the learned counsel is that Rs.1,80,000/- was sale consideration and the defendants have received Rs.1,00,000/- towards earnest money and executed the agreement of sale. The defendants have not pleaded Under Section 20 of Specific Relief Act for hardship. Such being the case, the question of directing returning the earnest money to the defendants does not arise. The appellant has proved the case, which is reversed by the first appellate court. It is relevant to note that the defendants in the written statement have accepted more than the amount of sale consideration as per exhibit P1. Hence, prayed for allowing the appeal. 9. Upon hearing the arguments of the learned counsel for the appellant perused the records, especially, the evidence adduced by the parties. The plaintiff was directed to pay the - 8 - NC: 2025:KHC:6839 RSA No. 402 of 2015 balance of the consideration of agreement of sale entered into between the parties for Rs.40,000/- and Rs.35,000/- was paid as earnest money as per exhibit P2. P.W.2 has also supported the case of the plaintiff. On the other hand D.W.1 has lead evidence in support of his case. In the cross-examination of P.W.1, the defendant suggested that agreement of sale for purchase of property was Rs.1,80,000/- and the same was denied by P.W.1. It is also suggested that the agreement of sale was entered for Rs.1,80,000/- and Rs.80,000/- was received by the defendants out of which Rs.40,000/- was received by for the marriage of the daughter of defendants. However, in the agreement of sale referred in exhibit P1, the sale consideration was only Rs.40,000/- but not Rs.1,80,000/-. In the further cross-examination, the learned counsel for the defendants has suggested that even the defendant is ready to execute the sale deed by receiving Rs.1,00,000/-, for that, the plaintiff has stated that he is ready to pay Rs.50,000/-. the admission made by the defendants corroborates with the evidence of the plaintiff where the defendants also admitted that the sale consideration was Rs.1,80,000/- and they have received Rs.80,000/- as advance and Rs.1,00,000/- was the - 9 - NC: 2025:KHC:6839 RSA No. 402 of 2015 balance of sale consideration. It is also contended by the defendants that the value of the property worth more than Rs.3 lakhs, but they have agreed for Rs.1,80,000/-. The very admission of the defendant in the evidence and the suggestion made by the learned counsel, clearly goes to show that the defendants have not denied that the agreement of sale and the receipt of advance consideration. However, the defendant have denied the receipt of Rs.35,000/- have stated that Rs.80,000/- was received as advance money over the sale consideration of Rs.1,80,000/-. It is stated that if Rs.1,00,000/- is paid, the defendants are ready to execute the sale deed. The evidence of P.W.1 and D.W.1 has been appreciated by the trial court and decreed the suit of the plaintiff and it was directed to pay Rs.5,000/- execution of sale deed. A suggestion was made by the defendant to the plaintiff where the plaintiff agreed to pay Rs.50,000/- instead of Rs.5,000/-. However, there is no hardship needed by the defendants. If the sale deed is executed, the defendants would be put to hardship and loss. It is clear that the property of defendants is valued for than Rs.3 lakhs and he is agreed to execute the sale deed for Rs.1,80,000/-. Some times, the parties may show the lesser - 10 - NC: 2025:KHC:6839 RSA No. 402 of 2015 amount in the agreement of sale/sale deed than the market value of property. They may receive the higher amount mentioned in the agreement of sale. A suggestion made by the defendants was accepted for Rs.1,80,000/-. However, it is mentioned as Rs.40,000/-. It is pertinent to do that if at all the sale consideration was for Rs.40,000/- and the plaintiff paid Rs.35,000/- towards advance sale consideration. The maximum amount of sale consideration left was Rs.5,000/-. Instead of getting the execution of sale deed, the question of paying another Rs.40,000/- to the defendants does not arise. In the evidence, the plaintiff has stated he has given Rs.40,000/- as loan and when the execution of sale deed is pending, the question of loan does not arise. The defendants' contention is acceptable for Rs.1,80,000/- and not Rs.40,000/-, the admission of by the plaintiff and defendants that the defendant received Rs.80,000/- as advance and Rs.1,00,000/- to be payable. Though there is no pleading by the defendants under Section 20 of special Relief Act, the question of ordering refund of the amount by the first appellate court is not correct Therefore, the first appellate court has erred in reversing the judgment of the trial court when there is an admitted fact and - 11 - NC: 2025:KHC:6839 RSA No. 402 of 2015 no pleading by the defendants under Section 20 of Specific Relief Act for pleading hardship. Therefore, the judgment of the first appellate court is required to be modified. 10. Accordingly I pass the following order: (i) The appeal is allowed in part. (ii) The suit of the plaintiff is decreed. However, the appellant-plaintiff is directed to deposit ₹1.00 lakh towards remaining sale consideration within three months from today. (iii) The defendants are directed to execute the sale deed in favour of the plaintiff. (iv) No order as to costs. Sd/- (K.NATARAJAN) JUDGE CS List No.: 1 Sl No.: 76 CT:SK