- 1 - HC-KAR NC: 2025:KHC-D:11591-DB RFA No. 100372 of 2024 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 9TH DAY OF SEPTEMBER 2025 PRESENT THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100372 OF 2024 (SP-) BETWEEN: SHAFI-UR-REHMAN S/O. ATHA-UR-REHMAN, AGED ABOUT 47 YEARS, OCC: BUSINESSMAN, R/O. B.J. EXTENSION, 22ND WARD, BELLARY ROAD, BEHIND METRO HARDWARE, HOSAPETE, DIST: VIJAYANAGARA-583 201. …APPELLANT (BY SRI. R.H. ANGADI, ADVOCATE) AND: SRI. MOHAMMED ABDULLA S/O. LATE MOHAMMED SIDDQUI SAB, AGED ABOUT 50 YEARS, OCC: BUSINESSMAN, R/O. DOOR NO.1950/2, 29TH WARD, 7TH CROSS, B.D.C.C. BANK COLONY, M.J. NAGAR, HOSAPETE, DIST: VIJAYANAGARA-583 201. …RESPONDENT (BY SRI. GURUDEV GACHHINAMATH, ADVOCATE FOR C/R) THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 10.07.2024 AND DECREE DATED 19/07/2024 IN O.S.NO.81/2020, ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HOSAPETE, AND CONSEQUENTLY DISMISS THE SUIT FILED BY THE PLAINTIFF BY ALLOWING THE APPEAL, TO MEET THE ENDS OF JUSTICE. YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:11591-DB RFA No. 100372 of 2024 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present appeal is filed under Section 96 of the Code of Civil Procedure, 19081, by the appellant/defendant challenging the judgment and decree dated 10.07.2024 passed in O.S.No.81/2020 on the file of Additional Senior Civil Judge and JMFC, Hosapete2, whereunder, the suit for specific performance of contract filed by the respondent/plaintiff has been decreed by the Trial Court. 2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience. 3. It is the case of the plaintiff that the defendant agreed to sell the suit property to the plaintiff, and 1 Hereinafter referred to as the ‘CPC’ 2 Hereinafter referred to as the ‘Trial Court’ - 3 - HC-KAR NC: 2025:KHC-D:11591-DB RFA No. 100372 of 2024 accordingly, the parties entered into an agreement of sale dated 29.12.2018, whereunder the defendant agreed to sell the suit property to the plaintiff for a total sale consideration of ₹75,52,000/-. That the plaintiff has paid a total sum of ₹64,00,000/- towards the said sale consideration. It is the case of the plaintiff that he was always ready and willing to pay the balance sale consideration, but since the defendant failed to complete the sale transaction in terms of the agreement dated 29.12.2018, the plaintiff issued a legal notice dated 28.08.2020, and thereafter filed the suit. 4. The defendant entered appearance through his counsel and filed a written statement contending, inter alia, that the plaintiff and defendant were friends, and that the defendant, being an innocent and gullible person, was taken undue advantage of by the plaintiff, who got the agreement executed from him. It was specifically contended that the agreement dated 29.12.2018 was not an agreement of sale. The payment of part sale consideration by the plaintiff was also disputed. It was also contended that the plaintiff has no - 4 - HC-KAR NC: 2025:KHC-D:11591-DB RFA No. 100372 of 2024 fixed avocation and lacked the capacity to pay the sale consideration. The various other defences were also raised by the defendant. 5. Consequent to the pleadings of the parties, the Trial Court framed the following issues: “1) Whether the plaintiff proves that he has advanced loan of Rs.24 lakhs on 12.12.2018, Rs.12 lakhs on 31.10.2018, 18 lakhs on 16.11.2018 and Rs.10 lakhs on 29.12.2018 to the defendant and in total Rs.64 lakhs? 2) Whether the plaintiff proves that the defendant agreed to sell the suit schedule property in favour of the plaintiff and executed a Sale Agreement on 29.12.2018? 3) Whether the plaintiff further proves that the defendant agreed to repay the loan borrowed by him with interest @ 1.50% per month? 4) Whether the plaintiff is entitle for the relief sought for? 5) What order or decree?” 6. The plaintiff examined himself as PW.1 and marked documents as Exs.P1 to Ex.P17. Four witnesses have been - 5 - HC-KAR NC: 2025:KHC-D:11591-DB RFA No. 100372 of 2024 examined as PW.2 to PW.5. In order to prove his defence, the defendant did not adduce any oral or documentary evidence. The Trial Court, by its order dated 10.07.2024, decreed the suit of the plaintiff and passed the following: ORDER “The suit of the plaintiff’s is hereby decreed with cost. The defendant is hereby directed to execute the register sale deed in favour of the plaintiff with respect to suit schedule property within two months from the date of this judgment. If the defendant failed to execute the register sale deed within two months, the plaintiff is at liberty to get execute the register sale deed through court as per law. Draw decree accordingly.” 7. Being aggrieved, the defendant has filed the present appeal. 8. Heard the submissions of learned counsel for the appellant/defendant and learned counsel for the respondent/plaintiff. - 6 - HC-KAR NC: 2025:KHC-D:11591-DB RFA No. 100372 of 2024 9. Assailing the judgment and decree passed by the Trial Court, learned counsel for the appellant contends, inter alia, that the finding of the Trial Court that the agreement dated 29.12.2018 was an agreement of sale is erroneous, having regard to the various materials on record. It is also specifically contended that the plaintiff has not paid the alleged amount of ₹64,00,000/- and that the plaintiff does not have the capacity to pay the said amount. 10. Per contra, the learned counsel for the respondent submits that the judgment and decree passed by the Trial Court is just and proper and the same ought not to be interfered with by this Court in the present appeal. 11. Although various contentions have been urged by both the parties, it is forthcoming from the material on record that the defendant has filed his written statement contesting the case of the plaintiff. However, the defendant has not cross-examined the witnesses examined by the plaintiff and has also not adduced any oral or documentary evidence. - 7 - HC-KAR NC: 2025:KHC-D:11591-DB RFA No. 100372 of 2024 12. It is forthcoming from paragraph No.6 of the impugned judgment that the counsel appearing for the defendant retired from the case. The notice issued by the Trial Court to the defendant was returned with the endorsement ‘unclaimed’. 13. It is clear from the aforementioned that the defendant except filing of the written statement has not contested the case of the plaintiff. In the present case, valuable rights of the contesting parties are required to be adjudicated including rights in immovable property. Therefore, before adjudication on the merits is made, it is expedient that the defendant be afforded another opportunity to contest the case of the plaintiff on its merits by cross-examining the witnesses examined on behalf of the plaintiff, and also by affording another opportunity to adduce oral and documentary evidence. 14. In view of the aforementioned, the following: - 8 - HC-KAR NC: 2025:KHC-D:11591-DB RFA No. 100372 of 2024 ORDER i) The above appeal is allowed; ii) The judgment and decree dated 10.07.2024 passed in O.S.No.81/2020 on the file of Additional Senior Civil Judge and JMFC, Hosapete, is set aside; iii) Both the parties shall appear before the Trial Court on 16.10.2025 without the requirement of any further notice being issued in this regard; iv) Upon appearance of the parties, the Trial Court shall afford another opportunity to the defendant to cross-examine the witnesses examined on behalf of the plaintiff; v) The defendant shall cross-examine the witnesses on the date fixed by the Trial Court; - 9 - HC-KAR NC: 2025:KHC-D:11591-DB RFA No. 100372 of 2024 vi) The Trial Court shall also afford another opportunity to both parties to adduce evidence/further evidence; vii) The Trial Court shall conduct further proceedings in accordance with law; viii) All the contentions of the parties on the merits of the matter are kept open; ix) The Court fee paid by the appellant in the above appeal be refunded to the appellant. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE PMP CT-MCK List No.: 1 Sl No.: 13