- 1 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH 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. 1798 OF 2024 (SP) BETWEEN: D.R.SATHYANARAYANA S/O LATE D.R RANGASWAMY AGED ABOUT 74 YEARS PRESENTLY R/AT NO.28, OPP TO FLOOR MILL HOSABEEDI CIRCLE, LEFT SIDE KANAKAPURA TOWN-562 117 RAMANAGARA DISTRICT …APPELLANT (BY SRI. ANIL KUMAR R, ADVOCATE) AND: MANCHEGOWDA S/O LATE MANCHEGOWDA AGED ABOUT 71 YEARS NO.684/23, VISHWANATHA EXTENSION, MANGALAWARPET CHANNAPATNA TOWN RAMANAGARA DISTRICT-571 112 …RESPONDENT (BY SRI. CHRISTOPHER E, ADVOCATE) Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.01.2023 PASSED IN OS NO. 109/2019 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHANNAPATNA, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT. 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 defendant in O.S. No.109/2019 is before this Court in this appeal. 2. The learned Senior Civil Judge and J.M.F.C., at Channapatna, (hereinafter referred to as "the Trial Court") has decreed the suit in O.S.No.109/2019 with costs vide judgment dated 30.01.2023 in the following terms: (i) The defendant is hereby directed to execute a regular registered Sale Deed in favour of the plaintiff in respect of the suit schedule property by receiving balance sale consideration of Rs.25,00,000/- (Rupees Twenty Five Lakhs) from him within two months from the date of said judgment. - 3 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 (ii) The plaintiff is at liberty to get the registered Sale Deed executed through Court Commissioner and for the delivery of possession of the suit schedule property in appropriate execution petition, in the even of defendant failing to comply with the above order of this Court. (iii) It is hereby further ordered that the defendant shall deliver vacant possession of the suit schedule property to the plaintiff soon after execution of the registered Sale Deed in terms of the above order." 3. For the sake of convenience, the parties are referred to by their ranks before the Trial Court. 4. The abridged facts of the case are as under: The suit in O.S. No.109/2019 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 vacant site bearing Municipal Door No.2262/A/B-1 measuring to an extent of East to West 20-1/2 feet and North to South 54 feet and another site in the same number measuring East to West 18 feet and North to South 12 feet and both properties, in total measuring 1323 sq.ft., situated - 4 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 adjacent to each other at Ward No.10, Municipal 'A' Division, B.M.Road, Channapattana Town, Ramanagara District (hereinafter referred to as "the suit schedule property", for short) and if the defendant failed to execute a regular Sale Deed in pursuance of the decree to be passed, then the same may be executed by the Court through its machinery and for costs. 5. The plaintiff has averred in the plaint that, the defendant has entered into an Agreement of Sale dated 05.11.2018 agreeing to sell the suit schedule property. The plaintiff has further submitted that the defendant for his legal necessity has approached him with an intention to sell the suit schedule property and that he had agreed to purchase the same. That on 05.11.2018 sale negotiations held between himself and defendant and the sale price was fixed at Rs.35,00,000/- (Rupees Thirty Five Lakhs Only). Thereafter, the defendant received an advance amount of Rs.10,00,000/- (Rupees Ten Lakhs) before the attesting witnesses, and executed an Agreement of Sale and also agreed to execute a regular Sale Deed by receiving balance sale consideration - 5 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs) within 1 month. The defendant for one or the other reason was postponing the same. However, the plaintiff had the definite information from the reliable sources that the defendant is trying to alienate the suit schedule property to some other person and thereby to create a third party interest over it. Therefore, the plaintiff had got issued a legal notice on 11.06.2019 through RPAD calling upon the defendant to receive the balance amount and also for execution of regular Sale Deed. But the same was returned on 13.06.2019 as unserved with shara "addressee left". It was stated that the defendant had intentionally and deliberately violated the terms and conditions of the said agreement. 6. It was further stated that the plaintiff was always ready and willing to perform his part of contract in terms of Agreement of Sale and to get the regular Sale Deed registered after paying the balance sale consideration of Rs.25,00,000/- (Rupees Twenty Five Lakhs only). Hence, left with no other option, the plaintiff has filed the suit for Specific Performance of Contract. - 6 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 7. The Trial Court has observed that despite issuance of summons and despite taking substituted service by way of paper publication, the defendant has not appeared and hence, he was placed ex-parte. 8. The Trial Court on the basis of the pleadings of the plaintiff, framed the following points: 1. Whether the plaintiff proves that the defendant has agreed to sell the suit schedule property for Rs.35,00,000/(Rs.Thirty Five Lakhs) and received Rs. 10,00,000/-(Ten Lakhs) and advance sale consideration agreed to execute a regular sale deed in terms of agreement of sale dated 05-11-2018 within 1 month? 2. Whether the plaintiff proves that he has been always ready and willing to perform his part of contract? 3. Whether the plaintiff is entitled for the relief of specific performance of contract as prayed for? 4. Whether the plaintiff is entitled for a judgment and decree as prayed for? 5. To what order or decree? - 7 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 9. The plaintiff in order to substantiate his case examined himself as PW.1 and examined two witnesses as PWs.2 and 3 and got marked 8 documents as Exs.P1 to P8. 10. 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 'affirmative' and issue No.5 as per the final order and decreed the suit of the plaintiff as stated supra. 11. The defendant being aggrieved by the said judgment and decree dated 30.01.2023 passed in O.S.No.109/2019 preferred the present appeal. 12. We have heard the learned counsel Sri.Anil Kumar R., for the appellant and the learned counsel Sri.Christopher E., for the respondent and also perused the records placed before us. 13. Learned counsel for the appellant/defendant contended that the suit summons was not served on him and he had no opportunity to defend himself before the Trial Court - 8 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 in the suit. It is the admitted case of the plaintiff that the suit schedule property is a vacant site and despite the same, the plaintiff has mentioned the address of the defendant as that of the address of the suit schedule property. As such, the summons issued by the Trial Court was returned with an endorsement "addressee left". Further, the substituted service effected by the plaintiff by way of paper publication in the local Kannada newspaper 'Suvarna Times of Karnataka", has no wide circulation in the place of defendant. The defendant is residing far away from the suit schedule property and knowing fully well of the said fact, the plaintiff intentionally in order to avoid service wrongly mentioned the address of the defendant as that of the suit schedule property. Further, the defendant has a good case on merits. Accordingly, he prays to allow the appeal by remitting the matter back to the Trial Court for fresh consideration by extending an opportunity to him to contest the matter and to lead evidence and cross-examine the plaintiff's witnesses. 14. Per contra, learned counsel for the respondent/plaintiff vehemently opposed the prayer of the - 9 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 appellant/defendant and submitted that after issuing summons to the defendant, the plaintiff has served the defendant through substituted service by way of paper publication and thereafter, the Trial Court held that the service of summons to the defendant was sufficient and accordingly the defendant was placed ex-parte. Learned counsel also submits that defendant being the fence sitter, was fully aware of the proceedings before the Trial Court and even after the judgment, he waited till filing of execution petition and thereafter, he approached this Court belatedly to drag on the proceedings. As such, he prays to dismiss the appeal. 15. Having heard the learned counsel for both the parties and having perused the material placed before us, the sole point that arises for our consideration is: Whether the defendant deserves to be provided with an opportunity to contest the suit on merits? 16. It could be gathered from records, the defendant has not served with the suit summons and the endorsement issued in the summons stated "addressee left". As rightly - 10 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 contended by the learned counsel for the defendant, the address of the defendant shown in the cause title was that of the suit schedule property i.e., Door No.2262/A-B-1, B.M.Road, Channapatna Taluk. It is the admitted case of the plaintiff that the said property is a vacant site. Such being the position, there is no possibility of serving the summons to the defendant. On the other hand, the defendant produced the document to substantiate that he was residing at No.28, Opposite to Flour Mill, Hosabeedi Circle, Kanakapura Town, Ramanagara District. In this view of the matter and having regard to the relief sought for in the suit which had far reaching consequences, though the suit concluded after examining three witnesses in a detail trial, yet an opportunity deserves to be granted to the defendant to contest the suit on merits. However, we cannot ignore the time lost by the plaintiffs in pursuing the litigation and the expenses incurred. Certainly, unsettling the judgment would cause hardship to the plaintiff. Thus, to balance equities, we make an attempt to recompense the plaintiff for the difficulty faced, by awarding suitable costs. 17. Consequently, the point for determination raised by this Court is held in favour of the defendant, which is, however, - 11 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 subject to payment of costs as mentioned below. Hence, the following: ORDER i. The appeal is allowed. ii. The impugned judgment and decree dated 30.01.2023 passed by the Trial Court in O.S.No.109/2019 is set aside. iii. The suit is remitted back to the Trial Court for reconsideration in accordance with law, subject to payment of costs of Rs.30,000/- payable by the defendant to the plaintiff before the Trial Court, failing which, the Trial Court shall dispose off the suit on the same terms as mentioned in the judgment impugned in this appeal. iv. The parties shall appear before the Trial Court on 12.09.2025 without expecting any further notice from the Trial Court. v. It is made clear that defendant shall pay the costs and file his written statement on the said day. vi. If the Trial Court considers that any fresh issue arises, it may frame issues and thereafter record the evidence of the parties. - 12 - HC-KAR NC: 2025:KHC:31223-DB RFA No. 1798 of 2024 vii. 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. viii. The parties shall maintain status-quo in respect suit schedule property till disposal of the suit. SD/- (ANU SIVARAMAN) JUDGE SD/- (RAJESH RAI K) JUDGE PKS/List No.1 Sl No.30