- 1 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.2231 OF 2024 (SP) BETWEEN: 1. Y. B. NANJUNDAPPA S/O. LATE C. BASAPPA SINCE DEAD, REPRESENTED BY LEGAL REPRESENTATIVES: SMT. GOWRAMMA W/O. LATE Y. B. NANJUNDAPPA AGED ABOUT 63 YEARS. 2. SRI BALU PRAKASH S/O. LATE Y. B. NANJUNDAPPA AGED ABOUT 41 YEARS. 3. SRI SOMASHEKAR S/O. LATE Y. B. NANJUNDAPPA AGED ABOUT 38 YEARS. 4. MAMATHA N. D/O. LATE Y. B. NANJUNDAPPA AGED ABOUT 44 YEARS. 5. BASAVARAJ WADIYAR Y. N. S/O. LATE Y. B. NANJUNDAPPA AGED ABOUT 42 YEARS. Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka - 2 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 ALL ARE RESIDING AT YALACHALLI VILLAGE NANDAGUDIHOBLI, HOSAKOTE TALUK BENGALURU RURAL DISTRICT. …APPELLANTS (BY SRI D. R. RAVISHANKAR, SENIOR COUNSEL A/W SMT. KALPANA P. V., ADVOCATE) AND: SRI HASHIM KHAN S/O. LATE MOHAMMED GHOUSE KHAN AGED ABOUT 48 YEARS RESIDING AT NO.125, SOUKAR LANE KUSHAL NAGAR, AMBEDKAR MEDICAL COLLEGE NEAR K. J. HALLI BENGALURU - 560 045. …RESPONDENT (BY SRI MOHAMMED AYUB ALI, ADVOCATE) * * * THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 22-2-2021 PASSED IN ORIGINAL SUIT NO.920 OF 2016 ON THE FILE OF THE V ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT INJUNCTION. THIS REGULAR FIRST APPEAL IS COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T - 3 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T) This appeal is filed by the appellants/defendants challenging the judgment and decree dated 22-2-2021 passed by the V Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, in Original Suit No.920 of 2016. 2. For the purpose of convenience, the parties are referred to as per their rankings before the trial Court. The appellants are the defendants and the respondent is the plaintiff. 3. The brief facts of the case are that, the plaintiff instituted a suit in Original Suit No.920 of 2016 before the trial Court against the defendants for the relief of specific performance of the contract based on Agreement of Sale dated 12-12-2013 and consequential relief of permanent injunction. According to the plaintiff, the suit schedule property was standing in the name of defendant No.1 and defendant Nos.2 to 4 are the legal heirs of defendant No.1. The defendants have jointly executed the registered Agreement of Sale dated 12-12-2013 for a total sale consideration of Rs.25.00 lakh and - 4 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 received advance amount of Rs.12.00 lakh and also agreed to receive remaining balance sale consideration of Rs.13.00 lakh at the time of execution of the Sale Deed. Further, on 6-2-2012, 24-4-2014, and 13-1-2015, the plaintiff paid a sum of Rs.1,15,000/-, 1,50,000/- and Rs.2,00,000/- respectively, by way of cash to the defendants. In all, the plaintiff paid Rs.16,65,000/- to defendant No.1. There was no fixed time limit for performance of terms of the Agreement of Sale and the plaintiff was ready and willing party to perform his part of the contract. Though the plaintiff was ready with balance amount of Rs.8,35,000/-, the defendants kept dodging. Hence, on 17-2-2016, the plaintiff got issued legal notice to the defendants and called upon to execute the Sale Deed by receiving balance sale consideration. In spite of service of notice, the defendants failed to execute the Sale Deed. Hence, the plaintiff filed a suit for specific performance of the contract against the defendants. 4. After initiation of the suit before the trial Court, suit summons were served upon the defendants, but they remained absent and did not contest the suit. Hence, the plaintiff, in order to prove his case, examined on oath as PW1 and relied - 5 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 upon twenty documents as per Exs.P1 to P20. The trial Court, after hearing the matter, decreed the suit of the plaintiff and granted the relief of specific performance. Being aggrieved by the judgment and decree passed by the trial Court, the defendants filed this appeal. 5. Learned counsel for the appellants/defendants has contended that no notices/summons were served upon the defendants and the signatures found on the summons do not pertain to them. Defendant No.1 expired on 27-6-2020 and the judgment was delivered on 22-2-2021. Thus, the judgment has been passed against the dead person without bringing the legal heirs on record. The said fact was within the knowledge of the plaintiff, but the plaintiff has secured the decree without bringing the factual aspects before the trial Court. Further, the suit schedule property is the ancestral property and the plaintiff has not made appellant Nos.4 and 5 as parties to the suit. In fact, defendant Nos.1 and 2 have another son and a daughter (i.e. appellant Nos.4 and 5), who are also entitled for share in the suit schedule property, but they have not been made as parties to the suit proceedings. The defendants had borrowed loan from the plaintiff, but the plaintiff created Ex.P1- - 6 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 Agreement of Sale for the purpose of this case on the pretext that it is mortgage document. Thus, the plaintiff has not approached the Court with clean hands. There is variation in mentioning the amount under Ex.P1. Thus, Ex.P1 is a created document. The trial Court, without looking into the pleadings and evidence, has decreed the suit which calls for interference by this Court. Hence, he prays to allow the appeal by remanding the matter to the trial Court for fresh consideration. 6. Learned counsel for the respondent/plaintiff has contended that the trial Court, considering the oral and documentary evidence on record, has decreed the suit of the plaintiff. Hence, no interference is called for. Learned counsel fairly submitted that in the event, if the Court comes to a conclusion that the matter requires remand, a timeframe may be fixed for disposal of the suit by imposing cost on the appellants/defendants. His submission is placed on record. 7. After hearing the learned counsel for the parties and perusing the material available on record, the point that would arises for our consideration in this appeal is: - 7 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 I. Whether the defendants/appellants have made out sufficient grounds to remand the matter to the trial Court for fresh consideration? 8. It is the specific case of the plaintiff/respondent that the defendants being the owner of the suit schedule property offered the plaintiff to sell the schedule property. Accordingly, Agreement of Sale was executed and registered by the defendants in favour of the plaintiff for total sale consideration of Rs.25.00 lakh and received advance sale consideration of Rs.16,65,000/-. As the defendants failed to execute the Sale Deed, the plaintiff filed a suit for specific performance of the contract. Admittedly, the defendants though served with the summons, remained absent. Hence, they were placed ex parte. The trial Court, considering the oral evidence of the plaintiff, contents of Ex.P1-Agreement of Sale and other documentary evidence, came to the conclusion that the plaintiff was always ready and willing party to perform his part of the contract. The trial Court also observed that the defendants failed to execute the Sale Deed in favour of the plaintiff by receiving balance sale consideration. - 8 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 9. In this case, the appellants/defendants have taken contention that they never executed the Agreement of Sale in favour of the plaintiff and it was mortgage transactions. Further, the appellants have taken contention that the suit schedule property is the joint family property of the defendants and defendant Nos.1 and 2 have another son and a daughter (i.e. appellant Nos.4 and 5), who are also entitled for share in the suit schedule property, but they have not been made as parties to the suit proceedings. Hence, all these aspects have to be considered in a full-fledged trial. 10. Learned counsel for the appellants/defendants contended that since the defendants did not contest the suit before the trial Court, an opportunity may be granted to them by remanding the matter for fresh consideration. 11. In order to remand the matter back to the trial Court for fresh consideration, it is just and necessary to analyse Order XLI, Rule 23 of the Code of Civil Procedure, 1908 (for short, 'CPC'), which read as under: - 9 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 "Rule 23. Remand of case by Appellate Court.—: Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand." 12. Further, as per Order XLI, Rule 23A of CPC, the Appellate Court may remand a case, where it consider necessary to do so in the interest of justice. A conjoint reading of Order XLI, Rules 23, 23A and 24 of CPC brings forth the scope as also contours of the powers of remand that, when the available evidence is sufficient to dispose of the matter, the proper course for this Court is to follow the mandate of Order XLI, Rule 24 of CPC and to - 10 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 determine the appeal of the appellants, whether it requires remand or not. It is only in this circumstance, where the decree in challenge is reversed in appeal and a re-trial is necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. 13. It is admitted fact that the appellants/defendants were remained absent before the trial Court. Thus, the trial Court passed ex parte judgment and decree against the defendants. If the matter is not remanded, the appellants/defendants will be deprived from contesting the matter and more injustice would be caused to them. If the matter is remanded and fresh trial is commenced, the disposal of the suit may be postponed for a couple of days or months, but no injustice would be caused to the respondent/plaintiff. 14. In view of the foregoing discussions and the fact that learned counsel for the respondent/plaintiff fairly submitted that the matter be remanded with a direction to the trial Court - 11 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 to dispose off the matter by fixing a timeframe, we deem it just and appropriate that the judgment and decree passed by the trial Court requires to be set-aside and remand the matter to the trial Court for fresh consideration. Accordingly, we proceed to pass the following: O R D E R i. Appeal is allowed on cost of Rs.25,000/- (Rupees twenty-five thousand only) payable by the appellants/defendants to the respondent/plaintiff on or before 6-6-2025, with due identification. ii. The judgment and decree dated 22-2-2021 passed by the V Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, in Original Suit No.920 of 2016, is hereby set aside and the matter is remanded to the trial Court for consideration. iii. The trial Court is directed to give opportunity to both the parties and same shall be disposed off within a period of six months from the date of receipt of a copy of this order. - 12 - NC: 2025:KHC:15477-DB RFA No. 2231 of 2024 iv. Both parties are directed to appear before the trial Court on 6-6-2025 without waiting for notices/summons from the trial Court and they are directed to expedite the matter without seeking any adjournments. v. All contentions are kept open, and vi. No order as to costs. In view of the disposal of the main appeal, I.A. No.3 of 2024 does not survive for consideration and accordingly, it is also dismissed. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE kvk List No.: 1 Sl No.: 29