- 1 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE MR. JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO. 2204 OF 2024 (SP) BETWEEN: SRI MOHAMMED SADIQ S/O B.A SALIM AGED ABOUT 39 YEARS, R/AT 2-92, HANDI HOUSE, MOSQUE ROAD, BAJPE MANGALURU TALUK PRESENTLY R/AT: NO. 15-7-393/6 ORCHID APARTMENT NO.103 ARYA SAMAJ ROAD, BALMATTA MANGALURU TALUK, REP: BY HIS GPA HOLDER MRS. ZOHARA W/O B.A SALIM AGED ABOUT 52 YEARS, R/AT: NO.2/92 HANDI HOUSE, MOSQUE ROAD, BAJPE, MANGALORE TALUK DK DISTRICT PRESENTELY R/AT NO.15-7-393/6 ORCHID APARTMENT NO. 103 ARYA SAMAJ ROAD, BALMATTA MANGALURU TALUK, D.K DISTRICT - 575 103 …APPELLANT (BY SRI. LETHIF B, ADVOCATE) Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 AND: INAYATHULLAH S/O LATE G.M ISMAIL, AGED ABOUT 56 YEARS, R.AT GURUKAMBLA KINNIKAMPLA POST, MANGALURU TALUK D.K DISTRICT - 57 …RESPONDENT (VIDE COURT ORDER DATED 09.07.2025, NOTICE TO RESPONDENT IS HELD SUFFICIENT) THIS RFA IS FILED UNDER SEC.96 ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 20.06.2024 PASSED IN OS NO.102/2023 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU., DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE RAJESH RAI K ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE RAJESH RAI K) The plaintiff in O.S.No.102/2023 on the file of the II Addl. Senior Civil Judge and C.J.M at Mangaluru, Dakshina Kannada (hereinafter referred to as "the Trial Court") has filed this regular first appeal challenging the judgment and decree dated - 3 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 20.06.2024 by which the suit in O.S.No.102/2023 was dismissed without cost. 2. For the sake of convenience, the parties are referred to by their ranks before the Trial Court. 3. The abridged facts of the case are as under: The suit in O.S. No.102/2023 was filed by the plaintiff for relief of specific performance of contract against the defendant directing him to execute an absolute Sale Deed in his favour in respect of non-agricultural property bearing Sy.No.179/2A, measuring 0-8.53 (345.38 Sq. Mtrs) of Badagaulipady village, Mangalore Taluk, D.K District (hereinafter referred to as "the Schedule 'A' Property" for short) and another property which is an under construction shop premises Number-01, measuring 320 Sq.Ft on the ground floor of the building known as "IS Complex" in the Schedule 'A' Property (hereinafter referred to as "the Schedule 'B' Property" for short) and such other relief. 4. The plaintiff has averred in the plaint that, the defendant is the owner of the suit schedule properties, having - 4 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 purchased the same by virtue of registered Sale Deed dated 05.08.1988. The defendant has undertaken to construct the commercial-cum-residential building with a view to dispose of the same to intending buyers, for the urgent financial necessities and decided to sell the suit schedule properties to the plaintiff. After mutual discussions, the plaintiff and the defendant have entered into an Agreement for Sale in respect of the same on 10.04.2018, whereupon the defendant had agreed to sell the suit schedule properties for a mutually agreed sale consideration of Rs.18,00,000/-. As per the terms of the aforesaid Agreement for Sale, the plaintiff had paid a sum of Rs.10,00,000/- by cheque dated 10.04.2018 bearing No.740000 drawn on Canara Bank, Valencia Branch, Mangaluru to the defendant towards advance sale consideration. The balance sale consideration of Rs.8,00,000/- was agreed to be paid as per the terms and conditions of the said agreement at the time of registration of Sale Deed. 5. It is further averred by the plaintiff that whenever the defendant has requested for payments to set right the documents, the plaintiff has made the same and that the - 5 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 defendant received a sum totally amounting to Rs.6,00,000/- towards part sale consideration on various occasions. Thereafter, whenever the plaintiff requested the defendant for execution of the Sale Deed within the stipulated time i.e., 10.04.2019, the defendant used to inform the plaintiff that Form No.9 and 11(A), Completion Certificate, Valuation of Property, and Loan Clearance Certificate were required to be obtained. Hence, the defendant has requested the plaintiff to extend the period for execution of the Sale Deed as he could not complete his part of the contract and accordingly, through Supplemental Agreement dated 05.11.2021, the period was extended till 05.02.2022. 6. Therefore, the plaintiff was liable to pay the balance sale consideration of Rs.2,50,000/- to the defendant at the time of execution and registration of the Sale Deed. Except to make the payment of the aforesaid balance sale consideration of Rs.2,50,000/- there was no other contractual obligations to be performed on the part of the plaintiff before the registration of Sale Deed. - 6 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 7. It is further submitted that he has been always ready and willing to perform his part of the contract and ready to get executed the registered Sale Deed in his favour by paying the balance sale consideration and that the plaintiff had informed the same to the defendant many times. The plaintiff was constrained to trust the defendant all the while. 8. It is further submitted that, since the plaintiff got some genuine doubt that the defendant was trying to sell the schedule property to some third party, the plaintiff issued a legal notice to the defendant on 06.07.2022 asking the defendant to keep ready all the required papers for the purpose of registration of the Sale Deed and to execute and register the Sale Deed in his favour in respect of the suit schedule properties within 14 days from the date of service of the said notice. The said notice has been returned unserved with an endorsement "Unclaimed", though notice was sent to the correct and last known address of the defendant. Hence, the plaintiff was constrained to file the present suit. 9. Inspite of service of notice, the defendant did not appear and contest the suit and hence, he was placed exparte. - 7 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 10. The Trial Court on the basis of the pleadings of the plaintiff, framed the following points: (1) Whether plaintiff proves that he represented through his GPA Holder has entered into an agreement of sale with defendant on 10.04.2018 has been extended through supplemental agreement dated 05.11.2021 by extending time for completion of the sale transaction? (2) Whether plaintiff further proves that he has advanced Rs.15,50,000/- to the defendant for purchase of schedule property for total sale consideration of Rs.18,00,000/-? (3) Whether plaintiff further proves that he was ever ready and willing to perform his part of contract for due execution of the Sale Agreement? (4) Whether the plaintiff is entitled for the relief as sought for? (5) What order or decree? 11. In order to substantiate the case of the plaintiff, the GPA holder who is none other than the mother of the plaintiff - 8 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 has been examined as PW.1 and got marked 8 documents as Ex.P1 to P6(b). 12. After hearing the learned counsel for the plaintiff and on assessment of oral and documentary evidence, the Trial Court answered issue Nos.1 to 4 in the 'negative' and issue No.5 as per the final order. 13. The plaintiff being aggrieved by the said judgment dated 20.06.2024 passed in O.S.No.102/2023 has preferred the present appeal. 14. We have heard the learned counsel Sri.Lethif. B, for the appellant and also perused the records placed before us. 15. Learned counsel for the appellant/plaintiff contended that the plaintiff has got sufficient documents/title deeds of the property to prove that the defendant is the owner of the suit schedule properties. However, the plaintiff has been denied with an opportunity to produce the same before the Trial Court. He also contended that if an opportunity is extended him to contest the case before the Trial Court by - 9 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 remitting the matter, he would be able to prove the Agreement of Sale and Supplemental Agreement - Ex.P1 and Ex.P2 respectively by examining the attesting witnesses. Hence, he prays to set aside the judgment and to remit the matter for fresh consideration. 16. Though the notice was served to the respondent, he remained unrepresented. 17. On careful examination of the impugned judgment and the material placed before us, it could be gathered that the Trial Court has dismissed the suit predominantly relying on the aspect that the plaintiff has failed to prove the Agreement of Sale by examining the attesting witnesses and also for non- production of title deeds of the suit schedule properties standing in the name of the defendant. 18. The learned counsel for the appellant vehemently contended that due to inadvertence and lack of legal knowledge, the plaintiff failed to produce the title deeds before the Trial Court. It is also submitted that if an opportunity is extended to the plaintiff by remitting the matter to the Trial - 10 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 Court, he will produce the title deeds of the suit scheduled properties and will also examine the attesting witnesses to the Agreement for Sale before the Trial Court. 19. Considering the aforesaid submission of the learned counsel for the appellant, we are of the view that the matter requires reconsideration at the hands of Trial Court by extending an opportunity to the plaintiff to produce the relevant documents and also to examine the attesting witnesses of the Agreement for Sale and the Supplemental Agreement. Accordingly, we pass the following: ORDER i. The appeal is allowed. ii. The impugned judgment and decree dated 20.06.2024 passed by the Trial Court in O.S.No.102/2023 is set aside. iii. The suit is remitted back to the Trial Court for reconsideration in accordance with law. iv. The parties shall appear before the Trial Court on 25.09.2025 without expecting any further notice from the Trial Court. - 11 - HC-KAR NC: 2025:KHC:32126-DB RFA No. 2204 of 2024 v. If the Trial Court considers that any fresh issue arises, it may frame issues and thereafter record the evidence of the parties. vi. The Trial Court is directed to dispose off the suit as early as possible and in accordance with the Karnataka (Case Flow management in Subordinate Courts) Rules, 2005. SD/- (ANU SIVARAMAN) JUDGE SD/- (RAJESH RAI K) JUDGE PKS/K List No.: 1 Sl No.: 17