- 1 - NC: 2025:KHC-D:4865 RSA No. 100114 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100114 OF 2016 (SP-) BETWEEN: PRALHAD S/O. VISHNUPANT KULKARNI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: PAMALDINNI, TQ: GOKAK, DIST: BELAGAVI-590002. …APPELLANT (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: MAHADEV S/O. HALAPPA JODATTI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: BYAKUD, TQ: RAIBAG, DIST: BELAGAVI-590002. …RESPONDENT (BY SRI. BAHUBALI N. KANABARGI, ADVOCATE FOR C/R1) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE IN R.A. NO.235/2007 DATED 23.11.2015 PASSED BY THE XII ADDITIONAL DISTRICT AND SESSION JUDGE BELAGAVI SITTING AT GOKAK AND JUDGMENT AND DECREE IN O.S. NO.48/1998 PASSED BY THE ADDITIONAL CIVIL JUDGE (SR.DN) GOKAK AND THE SUIT BEARING O.S.NO.48/1998 MAY BE DISMISSED IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 15:55:16 +0530 - 2 - NC: 2025:KHC-D:4865 RSA No. 100114 of 2016 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant assailing the Judgment and decree dated 23.11.2015 in R.A.No.235/2007 on the file of XII Addl. District and Sessions Judge, Belagavi, Sitting at Gokak, dismissing the appeal and confirming the Judgment and decree dated 19.11.2007 in O.S.No.48/1998 on the file of Addl. Civil Judge (Sr.Dn.) Gokak, decreeing the suit of the plaintiff. 2. For the sake of convenience, parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the defendant is the owner of the suit property and agreeing to sell the suit property in favour of the plaintiff for total consideration of Rs.1,20,000/- as per the Agreement of Sale dated 06.12.1994 and thereby received the advance amount of Rs.80,000/- from the plaintiff. It is further stated in the plaint that, the defendant though executed the agreement of sale in favour of the plaintiff, however, has not made effort to complete the registration of - 3 - NC: 2025:KHC-D:4865 RSA No. 100114 of 2016 the sale deed and as such, the plaintiff has filed O.S.No.48/1998 before the Trial Court, seeking relief of specific performance of contract. 4. On receipt of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. The Trial Court, based on the documents on record, has formulated issues for consideration. In order to establish his case, the plaintiff examined five witnesses as P.W.1 to P.W.5 and got marked 15 documents as Exs.P1 to P15. The defendant got examined five witnesses as D.W.1 to D.W.5 and produced 72 documents which were marked as Exs.D1 to D72. The Trial Court, after considering the material on record, by its judgment and decree dated 19.11.2007, decreed the suit and as such, directed the defendant to execute the registered sale deed in favour of the plaintiff by receiving the balance consideration of Rs.40,000/- within two months from the date of decree. Feeling aggrieved by the same, the defendant has preferred appeal in R.A.NO.235/2007 before the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court, after considering the material on record, by its Judgment and decree dated 23.11.2015, - 4 - NC: 2025:KHC-D:4865 RSA No. 100114 of 2016 dismissed the appeal, consequently confirmed the Judgment and decree dated 19.11.2007 passed in O.S.No.48/1998. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 5. This Court vide order dated 15.03.2017, formulated the following substantial question of law; “ Whether both the Courts have erred in law in decreeing the suit for specific performance without giving any finding on issue No.4 pertaining to readiness and willingness of the plaintiff to perform his part of the contract? ” 6. Heard Sri. Shriharsh A. Neelopant, learned counsel for the appellant and Sri. Babubali N. Kanabargi, learned counsel for the respondent. 7. Sri. Shriharsh A. Neelopant, learned counsel appearing for the appellant/defendant contended that the Trial Court has decreed the suit without giving a finding with regard to issue no.4, whereas, it is the duty of the Trial Court to answer essential ingredients of the readiness and willingness as per Section 16(c) of the Specific Relief Act. Accordingly, learned - 5 - NC: 2025:KHC-D:4865 RSA No. 100114 of 2016 counsel placed reliance on the Judgment of the Hon’ble Supreme Court in the case of PADMAKUMARI AND OTHERS Vs. DASAYYAN AND OTHERS reported in (2015) 8 SCC 695 and contended that the Judgment and decree passed by the Trial Court is without giving a finding with regard to issue no.4, is per se illegal. 8. Per contra, Sri. Babubali N. Kanabargi, learned counsel for the respondent/plaintiff sought to justify the impugned judgment and decree passed by the Court below and submitted that as the plaintiff has issued legal notice to the defendant, that itself is an evidence of proving the readiness and willingness as required under Section 16(c) of the Specific Relief Act and accordingly, sought for dismissal of this appeal. 9. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the pleadings on record. I have examined the finding recorded by both the Trial Court and the First Appellate Court. 10. On careful examination of each paragraph of the impugned judgment and decree passed by the Trial Court in O.S.No.48/1998, wherein nothing is stated about issue no.4 to - 6 - NC: 2025:KHC-D:4865 RSA No. 100114 of 2016 arrive at a conclusion to decree the suit which is discretionary in nature and therefore, it is apparently evident that the Trial Court has failed to give a finding taking note of the essential ingredients of granting relief of specific performance of the contract, in a manner known to law. In that view of the matter, though the plaintiff has referred to the agreement of sale dated 06.12.1994, however the said aspect has to be considered having regard to the essential requirement under Section 16(c) of the Specific Relief Act. 11. In that view of the matter, I am of the view that the Trial Court has not considered the readiness and willingness of the parties to complete their obligation under the agreement of sale dated 06.12.1994 and that said aspect has been erroneously confirmed by the First Appellate Court and the same is contrary to the Judgment referred to above in the case of PADMAKUMARI and also in view of the observation made the case of C.S. VENKATESH Vs. A.S.C.MURTHY (D) BY LRS. & ORS. reported in (2020) 3 SCC 280 and also in the case of SUKHWINDER SINGH Vs. JAGROOP SINGH & ANR. reported in AIR 2020 SC 4865. - 7 - NC: 2025:KHC-D:4865 RSA No. 100114 of 2016 12. In that view of the matter, I find force in the submission made by the learned counsel for the appellant. As there is no finding recorded by the Trial Court on issue no.4, this court is of the opinion that ends of justice would be met, if the matter is remanded to the Trial Court in entirety to give a finding on all aspects of the matter by considering the relief claimed by the plaintiff i.e., plea for specific performance. 13. In the result, the substantial question of law referred to above favours the defendant and accordingly, I pass the following: ORDER (i) The Regular Second Appeal is allowed. (ii) The Judgment and decree dated 23.11.2015 in R.A.No.235/2007 on the file of XII Addl. District and Sessions Judge, Belagavi, Sitting at Gokak, is hereby set aside. (iii) The Judgment and decree dated 19.11.2007 in O.S.No.48/1998 on the file of Addl. Civil Judge (Sr.Dn.) Gokak, is hereby set aside. - 8 - NC: 2025:KHC-D:4865 RSA No. 100114 of 2016 (iii) The entire matter is remitted to the Trial Court for fresh consideration, in the light of the observation made above. (iv) Needless to say that parties are directed to co-operate for early disposal of the suit since the suit is of the year 1998. Sd/- (E.S.INDIRESH) JUDGE sac CT-MCK List No.: 1 Sl No.: 39