- 1 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 05TH DAY OF FEBRUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100147 OF 2020 (SP) BETWEEN: MOHAMMAD ABBAS @ ABBAS S/O WAJEERSAB KUMTAKAR, AGED: 37 YEARS, OCC: BUSINESS, R/O: KUMTAKAR CHAWL, BINDARGI ONI, GANESHPETH, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. …APPELLANT (BY SRI. GURUDEV GACHCHINAMATH, ADV) AND: KIRANKUMAR S/O BHARAMAPPA KARJAGI AGED: 39 YEARS, OCC: FINANCER, R/O: BHAVANI NAGAR, 7TH DAY CHURCH, ENGLISH MEDIUM SCHOOL, OPP TO KOHINOOR BUNGLOW, KESHWAPUR, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. …RESPONDENT (VCO DATED 16.01.2024, NOTICE TO RESPONDENT IS HELD SUFFICIENT) THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD 22.01.2020 PASSED IN O.S.NO.187/2019 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI, DISMISSING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:29:44 +0530 - 2 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the plaintiff/appellant, challenging the judgment and preliminary decree dated 22.01.2020 passed in O.S. No.187/2019 by the learned III Additional Senior Civil Judge and JMFC, Hubballi. 2. For convenience, the parties are referred to, based on their ranking 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: The plaintiff filed a suit against the defendant for specific performance of a contract. It is the case of the plaintiff, that the defendant is the owner of the suit schedule property and he has been the best friend of the - 3 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 plaintiff since 2008 having his family near the residence of the plaintiff, had expressed his willingness to sell the suit property to the plaintiff. Accordingly, negotiation took place, and the plaintiff agreed to purchase the suit schedule property for valuable consideration of Rs.35,00,000/-. The defendant received Rs.10,00,000/- as earnest money from the plaintiff, while executing a registered sale agreement dated 26.04.2018. The defendant voluntarily requested the plaintiff to execute the registered sale deed on availing 12 months from 26.04.2018. The said period expired on 27.04.2019. After the expiry of the time-bound, the plaintiff issued a legal notice calling upon the defendant, to execute a registered sale deed by receiving the balance sale consideration amount. The defendant did not respond to the request of the plaintiff. Soon after the execution of the sale agreement, on the very next day, i.e. 27.04.2018 the lease agreement was executed by the defendant in favour of the plaintiff, and the defendant received Rs.7,00,000/- for delivering possession of the ground - 4 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 floor, double bedroom in the suit property with the conditions incorporated in the notarized mortgage deed on 27.04.2018. Thus, the defendant received in all, a sum of Rs.17,00,000/- from the plaintiff. The plaintiff filed a suit in O.S. No.344/2018 on the file of the learned IV Additional Civil Judge and JMFC, Hubballi. In the said suit, the notarized mortgage deed had been impounded by paying Rs.35,000/- towards the duty and penalty, and the said document was marked. The said suit is pending disposal. 3.1. It is contended that, the plaintiff was/is ready and willing to perform his part of the contract by depositing the remaining balance sale consideration amount of Rs.25,00,000/- to the defendant, but the defendant failed to perform his part of the contract and hence, a legal notice was issued. The said legal notice was duly served on the defendant. The defendant did not reply to the legal notice. Hence, a cause of action arose - 5 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 for the plaintiff to file a suit for specific performance of a contract. Accordingly, prays to decree the suit. 3.2. The trial Court issued a summons to the defendant. Despite service of the summons, the defendant remained unrepresented, and was placed exparte. 3.3. The trial Court, after recording evidence, framed the points for consideration, as follows : 1. Whether the plaintiff is entitled for the relief as prayed in the suit? 2. What order or decree? 3.4. The plaintiff, to substantiate his case, examined himself as PW.1, examined 3 witnesses as PWs.2 to 4 and marked 35 documents as Exs.P-1 to P-35. 3.5. The trial Court, on the assessment of the oral, and documentary evidence, answered point No.1 in the negative and point No.2 as per the final order. The suit of the plaintiff was dismissed with cost vide judgment dated - 6 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 22.01.2020. The plaintiff, aggrieved by the judgment and decree passed in O.S. No.187/2019 filed this regular first appeal. 3.6. The plaintiff has also filed an application for the production of an additional evidence. This Court issued a notice to the defendant. Despite service of a notice, the defendant remained unrepresented. Hence, he was placed absent. 4. Heard the learned counsel for the plaintiff. 5. Learned counsel for the plaintiff submits that, the trial Court has dismissed the suit on the ground that, the plaintiff has not produced the deed of relinquishment. He submits that, the plaintiff has filed an application for the production of additional evidence. The plaintiff has produced the relinquishment deed, and he submits that, the defendant did not appear before the trial Court. In such circumstances, the trial Court could have decreed the suit, on the contrary, has dismissed the suit. Hence, he - 7 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 prays to allow the application for the production of additional evidence, and accordingly, prays to allow the appeal. 6. Learned counsel for the plaintiff submits that the defendant agreed to sell the suit schedule property for consideration of Rs.35,00,000/- and received an amount of Rs.10,00,000/- towards an advance sale consideration amount, and executed the registered sale agreement on 26.4.2018. He also submitted that, on the next date i.e., on 27.4.2018, the defendant executed a lease agreement in favour of the plaintiff, and delivered the possession of the ground floor, and double bed rooms in the suit schedule property. He submits that, the plaintiff was/is ready and willing to perform his part of the contract, and issued a legal notice. The defendant did not reply to the legal notice. The trial Court has failed to draw a presumption regarding the registered sale agreement, and also the defendant did not deny the execution of the registered sale agreement. The trial Court dismissed the - 8 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 suit only on the ground that, the plaintiff did not produce a relinquishment deed executed by defendant wife in favour of the defendant. He submits that, the plaintiff by way of additional evidence has produced a Xerox copy of the registered relinquishment deed dated 25.4.2018 executed by the defendant’s wife in favour of the defendant. Hence, he submits that, the application filed for the production of the document may be allowed, and the matter be remitted to the trial Court for fresh consideration permitting the plaintiff to lead further evidence in support of an additional evidence. Hence, prays to allow the appeal. 6. Perused the records, and considered the submissions of the learned counsel for the plaintiff. 7. The points, that arise for our consideration are as follows: i) Whether the plaintiff prove that the trial Court committed an error in dismissing the suit on the ground that the plaintiff has failed to produce the registered relinquishment deed? - 9 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 ii) Whether the plaintiff has made out ground to allow I.A.2/2020 for production of additional evidence? iii) Whether the plaintiff prove that the judgment and decree passed by the trial Court is perverse and arbitrary? Re. point No.1 8. The plaintiff to substantiate his case examined himself as PW.1. He has deposed that, the defendant is the owner of the suit schedule property. The defendant agreed to sell the suit schedule property for valuable consideration of Rs.35,00,000/- and the plaintiff paid a sum of Rs.10,00,000/- towards an advance sale consideration amount, and it was agreed that the balance be paid at the time of registration of the sale deed. The plaintiff in terms of the agreement of sale paid Rs.10,00,000/-, and the defendant executed a registered sale agreement on 26.04.2018 in the presence of the attesting witnesses. It was agreed that, the sale deed was to be executed within one year from the date of execution - 10 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 of the sale agreement. After the expiry of one year, the plaintiff got issued the legal notice calling upon the defendant to receive the balance sale consideration amount, and execute a registered sale deed in favour of the plaintiff. Further, the plaintiff has deposed that, on the next day of execution of the sale agreement i.e., 27.04.2018, the defendant executed a lease agreement in favour of the plaintiff, and the said lease agreement was notarised, and the defendant had received Rs.7,00,000/- for delivering the possession of ground floor, and double bed room in the suit property. The plaintiff also filed a suit in O.S.No.344/2008. The said suit is pending for consideration. He also deposed that, the agreement was impounded, and the plaintiff paid a sum of Rs.35,000/- towards duty, and penalty on the said agreement in O.S.No.344/2018. The plaintiff, to prove that, the defendant has executed the registered sale agreement, produced the certified copy of the sale agreement marked as Ex.P.1. Ex.P.2 is the office copy of the legal notice, Ex.P.3 to P.5 are the returned postal envelopes, Ex.P.3(a) - 11 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 to P.5(a) are the returned legal notices, Ex.P.6 is the certified copy of the mutation extract, Ex.P.7 is the certified copy of the order sheet in O.S.No.344/2018 (O.S.No.24/2018), Exs.P.8 to P.10 are the certified copies of the depositions of PW.s 1 to 3 in O.S.No.344/2018, Ex.P.11 and Ex.P.12 are the certified copies of the challans, Ex.P.13 is the certified copy of the lease agreement executed by defendant in favour of the plaintiff, Exs.P.14 and P.15 are the certified copies of the sale agreements, Ex.P.16 is the certified copy of the property register card, Exs.P.17 and P.18 are the two bank pass books, Ex.P.19 is the certified copy of the judgment passed in O.S.No.344/2018, Exs.P.20 to P.23 are the certified copies of the depositions of PWs.1 to 4 in O.S.No.344/2018, Ex.P.24 is the certified copy of the order sheet in O.S.No.344/2018. 9. From the perusal of Ex.P.1, it discloses that the defendant agreed to sell the suit schedule property for a valuable consideration of Rs.35,00,000/- and the - 12 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 defendant had received Rs.10,00,000/- towards advance sale consideration, and executed a registered sale agreement in favour of the plaintiff. The plaintiff, to show his readiness and willingness, issued legal notice marked as Ex.P.2. The trial Court failed to consider that Ex.P.1 is the registered sale agreement, and dismissed the suit, only on the ground that the plaintiff has failed to produce the registered relinquishment deed executed by defendant’s wife in favour of the defendant. The plaintiff has filed an application for the production of additional evidence to show that, the defendant’s wife executed a registered relinquishment deed on 25.4.2018 which goes to show that, Smt.Veena w/o.Kiran Kumar executed a relinquishment deed regarding CT Survey No.2762/B regarding the suit schedule property. The trial Court, without considering the execution of the sale agreement, has solely dismissed the suit of the plaintiff on the ground that the plaintiff has failed to produce the relinquishment deed as, now the plaintiff has produced the xerox copy of the registered relinquishment deed. In view of the above - 13 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 discussion, we hold that the trial Court has committed an error in dismissing the suit solely on the ground that the plaintiff has not produced the registered relinquishment deed. Because of the above discussion, we answer point No.1 in the affirmative. Re. point 2 : 10. The plaintiff has filed an application for the production of additional evidence under Order 41 Rule 27 CPC. In support of the application, an affidavit has been filed, wherein it is stated that, the plaintiff filed a suit for specific performance of contract, and the said suit was dismissed. It is stated that, the plaintiff has produced the registered sale agreement, and examined the attesting witnesses to the registered sale agreement, and to show that, the plaintiff has the financial capacity to purchase the suit schedule property by paying the balance sale consideration amount. It is stated that, the plaintiff was/is ready and willing. It is stated that the plaintiff, aggrieved by the judgment and decree, filed this appeal. It is stated - 14 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 that, the plaintiff has a good case on merits and there are fair chances of succeeding in the matter, and it is stated that, the defendant did not furnish the registered relinquishment deed executed by the defendant’s wife in favour of the defendant. The plaintiff came to know about the execution of the registered relinquishment deed, by the defendant’s wife in favour of the defendant, after the disposal of the suit. He submits that, the trial Court has dismissed the suit only on the ground that, the plaintiff did not produce the registered relinquishment deed. Hence, he submits that, the proposed document is necessary for deciding the matter in dispute. He submits that the said document could not be produced before the trial Court as said document was not in custody of the plaintiff. Hence, prays to allow the application. 10.1. It is not in dispute that, the defendant executed a registered sale agreement in favour of the plaintiff for a total consideration of Rs.35,00,000/- and the defendant received Rs.10,00,000/- as an advance sale consideration - 15 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 amount and the said sale agreement was registered. As per the terms and conditions of the sale agreement, the wife of the defendant herself relinquished her share in favour of the defendant. Pursuant to the said sale agreement, the defendant’s wife executed a relinquishment deed on 25.4.2018 wherein the defendant’s wife relinquished her share in favour of the defendant. The plaintiff did not produce the said relinquishment deed. The trial Court recorded its finding that, the plaintiff had not produced the relinquishment deed before the Court to show that the defendant’s wife had relinquished her share in the suit schedule property. Hence, on the said ground, the trial Court has dismissed the suit. The trial Court has not examined the execution of a registered sale agreement by the defendant in favour of the plaintiff, and payment of the part of the sale consideration amount, and the readiness and willingness. Hence, the trial Court has dismissed the suit. The plaintiff is not a party to the registered relinquishment deed. The defendant did not hand over the copy of the registered - 16 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 relinquishment deed to the plaintiff. The said document was not in the custody of the plaintiff. After the dismissal of the suit, the plaintiff approached the Sub-registrar, and obtained a certified copy of the registered relinquishment deed, which discloses that, defendants’ wife has relinquished her share in favour of the defendant. The said document is relevant for adjudicating the dispute. The plaintiff, after the exercise of due diligence, has produced the said document. The said document goes to the root of the case. The plaintiff has fulfilled the requirements of Order 41 Rule 27 of CPC. In view of the above discussion, we answer point No.2 in the affirmative. Re.point No.3 : 11. We have already answered points No.1 and 2 in favour of the plaintiff. Accordingly, we proceed to pass following : - 17 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 ORDER i. The appeal is allowed. ii. The Judgment and decree dated 22.01.2020 in O.S.No.187/2019 on the file of III Additional Senior Civil Judge and JMFC, Hubballi is set aside. iii. I.A.No.2/2020 is allowed. The documents are placed on record. iv. The suit is restored. The trial Court is directed to provide an opportunity for the parties to lead evidence on additional documents and pass appropriate judgment in accordance with law. v. This Court has not made any adjudication on merits in the issue. vi. All the contentions of the parties are kept open. The Office is directed to refund the Court Fee as per Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958. - 18 - NC: 2025:KHC-D:2661-DB RFA No. 100147 of 2020 In view of the disposal of the appeal, I.A.No.1/2020 does not survive for consideration. Accordingly, disposed off. The Office is directed to return the records to the trial Court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE KMV/rs CT: BSB List No.: 1 Sl No.: 13