- 1 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100035 OF 2019 (SP) BETWEEN: SMT. SABAVVA W/O. MANAPPALINGADAL @ NINGADAL, AGE: 87 YEARS, OCC: HOUSEHOLD WORK, R/O. ANADINNI, TQ /DIST: BAGALKOT. …APPELLANT (BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE) AND: CHANNAPPA S/O. MUDAKAPPA NEELANNAVAR, AGE: 58 YEARS, OCC:AGRICULTURE, R/O. YADAHALLI, TQ: BAGALKOT. …RESPONDENT (BY SRI. MRUTYUNJAYA S.HALLIKERI, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 13.12.2018 PASSED IN O.S.NO.100/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BAGALKOT, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.02 16:03:01 +0530 - 2 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is filed by the defendant assailing the judgment and decree rendered in a suit for specific performance in O.S.No.100/2017. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. 3. The facts leading to the case are as under: Plaintiff filed the suit for specific performance by placing reliance on an agreement to sell alleged to have been executed by defendant on 11.6.2015. The trial Court in absence of contest by defendant has answered issue Nos.1 and 2 in the affirmative and the suit is decreed granting the relief of specific performance of contract. The said judgment is under challenge. 4. Learned counsel appearing for the defendant referring to the trial Court records has succeeded in demonstrating before this Court that the procedure - 3 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 adopted by the learned Judge is fundamentally flawed and without affording an opportunity to the defendant to contest the suit, has hastily proceeded to decree the suit. 5. Learned counsel appearing for the defendant referring to the records would bring to the notice of this Court that though defendant tendered her chief- examination by way of an affidavit, however, she failed to mount the witness box and that compelled the learned Judge to take the evidence of defendant as nil. However, he would point out that defendant immediately filed an application requesting the learned Judge to recall the order and permit the defendant to lead evidence. Though this application was filed on 16.11.2018 and the copy was served on the learned counsel appearing for the plaintiff and the same is noted in the order sheet dated 17.11.2018, he would point out that the learned Judge has struck of the entry in the order sheet relating to the filing of the application and has proceeded to decide the suit without permitting defendant to contest the proceedings. - 4 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 He would also point out that learned Judge having declined to pass orders on the application has however, drawn an adverse inference against the defendant under Section 114(1)(g) of the Indian evidence Act and therefore, he would try to persuade this Court to set aside the judgment and remit the matter to the trial Court. 6. Per contra, learned counsel for the plaintiff has vehemently argued and contended that there was complete laxness on the part of the defendant and as she was not diligent in contesting the suit, the learned Judge was justified in declining any further opportunity. He would further point out that since defendant was adopting dilatory tactics, the learned Judge has proceeded to decide the suit on merits and therefore, the judgment and decree rendered by the trial Court is in accordance with law and does not warrant any interference at the hands of this Court. 7. Heard the learned counsel appearing for defendant, learned counsel appearing for plaintiff. We - 5 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 have carefully gone through the order sheet and lower court records. 8. The following point would arise for consideration: "Whether the judgment and decree rendered by the trial Court in O.S.No.100/2017 is sustainable since the learned Judge without deciding the application filed by the defendant wherein a request was made to recall the order recording the evidence of defendant as Nil and permit the defendant to lead evidence was not decided and the learned Judge however proceeded to decree the suit?" 9. Upon a thorough perusal of the records, it is evident that while the defendant had initially tendered her chief-examination through an affidavit, she did not mount the Witness Box to provide oral testimony. This led the learned Judge to treat the defendant’s evidence as Nil, thereby proceeding to decide the case without considering any substantive defense from her side. However, the - 6 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 records clearly establish that the defendant, upon realizing the consequence of not mounting the witness box, promptly filed an application on 17.11.2018 requesting the Court to recall the earlier order and permit her to lead evidence. Notably, this application was duly filed, as reflected in the order sheet, and is also present in the case records. Despite these documented facts, the learned Judge appears to have overlooked the existence of this application while adjudicating the matter. A deeper examination of the order sheet dated 17.11.2018 reveals that the learned Judge initially acknowledged the filing of the application but subsequently struck off the said entry. However, what is particularly concerning is that, while striking off the entry, the learned Judge failed to erase the corresponding notation made on the left-hand side of the order sheet, which continues to indicate that the application was indeed filed. Furthermore, there is nothing on record to suggest that the plaintiff’s counsel raised any objections to the defendant’s application. This sequence of events points to a serious lapse in the judicial process, - 7 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 leading us to conclude that the learned Judge’s approach in deciding the suit was procedurally flawed, particularly in light of the defendant’s efforts to rectify her procedural misstep and present her case before the Court. 10. It is important to emphasize that the suit in question pertains to the specific performance of a contract, a subject matter that involves significant legal and equitable considerations. The defendant has challenged the plaintiff’s claim by asserting that the agreement in dispute was not intended as a sale agreement but was, in fact, executed as a collateral security. Additionally, the defendant has raised a plea of limitation, a crucial defense that directly impacts the adjudication of the matter. The framing of issue No.3, which places the burden of proof on the defendant, further underscores the importance of allowing her to adduce rebuttal evidence to substantiate her defense. Given these circumstances, the manner in which the learned Judge proceeded to deny the defendant an opportunity to present her evidence is not only - 8 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 procedurally untenable but also amounts to a grave miscarriage of justice. In cases involving rights over immovable property, although such rights may not be classified as fundamental rights, they are nonetheless afforded substantial protection under the legal framework. Article 300A of the Constitution of India upholds the right of a citizen to property and ensures that any deprivation of property must be in accordance with due process of law. In a properly instituted suit before a competent civil Court, both parties plaintiff and defendant are entitled to a fair opportunity to present their respective cases. The judiciary is duty-bound to uphold procedural fairness and maintain parity between contesting parties. The manner in which the learned Judge has handled the matter in the present case has resulted in a blatant violation of the principles of natural justice, thereby rendering the judgment fundamentally flawed. Given these considerations, we refrain from expressing any opinion on the merits of the case at this stage. Instead, in the interest of justice and fairness, we deem it appropriate to allow the defendant an - 9 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 opportunity to lead evidence in support of her case. Accordingly, the point formulated by this Court is answered in the affirmative, thereby granting the defendant the relief sought in her application. 11. In the light of the discussions made supra, we proceed to pass the following: ORDER (i) The appeal is allowed. (ii) The judgment and decree dated 13.12.2018 passed in O.S.No.100/2017 is hereby set aside. (iii) The matter stands remitted back and the trial Court shall proceed from the stage of providing opportunity to defendant to lead evidence. (iv) Since the parties are represented by their respective counsel, without expecting any summons, they shall appear before the trial Court on 25.4.2025. (v) Court fee shall be refunded to the appellant. - 10 - NC: 2025:KHC-D:5508-DB RFA No. 100035 of 2019 (vi) Registry to forthwith remit the records to the trial Court along with the copy of the judgment. (vii) Office to draw the decree accordingly. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE ALB Ct:vh List No.: 1 Sl No.: 24