- 1 - HC-KAR NC: 2025:KHC:39063 RSA No. 729 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 729 OF 2014 (SP) BETWEEN: 1. G.H. RAGHUNATH S/O LATE HIRIYANAYYA AGED ABOUT 40 YEARS, DEAD BY LRS 1(a) SUSHEELAMMA G, W/O LATE HIRIYANNAIAH, AGED ABOUT 82 YEARS, 1(b) G.VENKATA RAO, S/O LATE HIRIYANNAIAH, AGED ABOUT 65 YEARS, 1(c) GAYATHRI G, D/O LATE HIRIYANNAIAH, AGED ABOUT 6 YEARS, 1(d) SREELATHA S N, D/O LATE HIRIYANNAIAH, AGED ABOUT 55 YEARS, 1(e) PADMAVATHI, D/O LATE HIRIYANNAIAH, AGED ABOUT 52 YEARS, ALL ARE RESIDENTS OF C.L. RAMANNA ROAD, SHIVAMOGGA CITY - 577 201. …APPELLANTS (BY SRI P N HARISH, ADVOCATE) Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:39063 RSA No. 729 of 2014 AND: G.PRAKASH S/O G.PANCHAKSHARAPPA AGED ABOUT 54 YEARS, R/O TALUK OFFICE ROAD, OLD TOWN, BHADRAWATHI-577301 …RESPONDENT (BY SRI MALLIKARJUN C BASAREDDY, ADVOCATE) THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 06.02.2014 PASSED IN R.A.NO.4/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, AND JMFC, BHADRAVATHI., ALLOWING THE APPEAL AND SET ASIDE THE JUDGEMENT AND DECREE DATED30.11.2011 PASSED IN OS.NO.442/2010 ON THE FILE OF THE CIVIL JUDGE AND ADDITIONAL JMFC, BHADRAVATHI. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT Heard the learned counsel appearing for the appellant and the respondent. 2. This appeal was admitted on 19.09.2014 to answer the following substantial question of law:- "When the trial Court granted a decree in part directing the respondent to refund the earnest money under the agreement with interest, whether the First - 3 - HC-KAR NC: 2025:KHC:39063 RSA No. 729 of 2014 Appellate Court in the appeal filed by the appellant was justified in dismissing the suit though there is no appeal by the respondent?" 3. The present appeal is by the plaintiff against the judgment and decree declining specific performance of alleged agreements dated 28.02.2002 and 28.12.2008. 4. The suit is dismissed after holding that both agreements are proved and the plaintiff is willing to perform his part of the contract. 5. The Trial Court recorded a finding that there was a ban to register the transaction if property is less than 10 guntas in extent. 6. It is relevant to notice that the defendant remained ex-parte before the Trial Court. The plaintiff filed appeal before First Appellate Court seeking specific performance. The appeal is dismissed. However, the decree for refund of earnest money granted by the Trial Court is also set-aside on the premise that original agreement for sale is not produced before the Trial Court. - 4 - HC-KAR NC: 2025:KHC:39063 RSA No. 729 of 2014 7. It is relevant to notice that there was no appeal by the defendant challenging the decree for refund of the consideration amount. 8. Learned counsel appearing for the plaintiff/appellants would urge that without there being an appeal against the decree granting refund of the earnest money, First Appellate Court has no jurisdiction to set-aside the decree passed in favour of the plaintiff. 9. It is urged that First Appellate Court was only required to consider whether the decree for specific performance of contract could have been passed or not. It is his submission that, the Trial Court held all the issues in favour of the plaintiff and the agreements are proved. The payment of advance consideration amount is proved and readiness and willingness to perform the contract is also proved and there was no contest and the Trial Court could not have held that there is a bar to register the transaction in respect of property measuring less than 10 guntas. 10. Thus, it is urged that the appeal be allowed and decree for specific performance be granted. - 5 - HC-KAR NC: 2025:KHC:39063 RSA No. 729 of 2014 11. Learned counsel appearing for the respondent would urge that on account of unavoidable circumstances, the defendant could not appear before the Trial Court as well as First Appellate Court and First Appellate Court is justified in declining the relief of specific performance and he would urge without prejudice to the contention that no such transaction has taken place, that the defendant is ready to pay the amount as per the decree passed by the Trial Court. 12. This Court has considered the contentions raised at the bar and perused the records. 13. As can be seen from the judgment and decree passed by the Trial Court, it is held that the plaintiff has proved the agreements pleaded by him and has established readiness and willingness to perform his part of the contract. However, the suit is dismissed on the premise that the registration of sale deed in respect of the property measuring less than 10 guntas is impermissible. 14. The Trial Court has not cited any such law prohibiting such transaction prohibiting registration of land measuring less than 10 guntas. - 6 - HC-KAR NC: 2025:KHC:39063 RSA No. 729 of 2014 15. Under these circumstances, the decree passed by the Trial Court declining specific performance is erroneous. 16. At the same time, when the plaintiff filed an appeal seeking decree for specific performance without there being a challenge to the decree for refund of earnest money First Appellate Court could not have set-aside the decree for refund of earnest money. 17. However, what is required to be noticed is the defendant has remained ex-parte before the Trial Court and learned counsel submits that the defendant be permitted to contest the matter by filing written statement and leading evidence. 18. Learned counsel for the appellants would submit that the defendant has not availed the opportunity at the earliest possible opportunity and it is too late in the day to seek review of the Court to contest the matter before the Trial Court. 19. This Court has noticed that the agreements for sale are in respect of immovable property. The defendant has not chosen to contest the matter. Though the reasons are not - 7 - HC-KAR NC: 2025:KHC:39063 RSA No. 729 of 2014 satisfactory for not choosing to contest the matter, considering the fact that the dispute is in respect of an immovable property and the relief of specific performance being discretionary as per the law prevailing when the alleged agreements were executed, the Court is of the view that the opportunity should granted to the defendant to contest the matter, subject to terms. 20. This Court has noticed that the plaintiff has contested the matter before three forums including this Court. Under these circumstances, the defendant has to pay suitable cost to the plaintiff as the matter is being remanded at the instance of the defendant who has not filed written statement and contested the matter. Hence, the following:- ORDER (i) Appeal is allowed-in-part. (ii) The judgment and decree dated 06.02.2014 in R.A. No.4/2012 on the file of Additional Senior Civil Judge, Bhadravathi are set-aside. (iii) The judgment and decree dated 30.11.2011 in O.S. No.442/2010 on the file of Additional Civil Judge, Bhadravathi are set-aside. (iv) The matter is remitted to the Trial Court for fresh consideration in accordance with law. - 8 - HC-KAR NC: 2025:KHC:39063 RSA No. 729 of 2014 (v) The defendant is permitted to file written statement within 30 days from the date of appearance before the Trial Court, subject to paying a cost of Rs.40,000/- to the plaintiff's legal representatives. (vi) The cost of Rs.40,000/- shall be paid to the appellants within 30 days from the date of appearance before the Trial Court. (vii) The parties shall appear before the Trial Court on 24.10.2025. Nothing in this judgment shall be construed as having expressed anything on the merits of the claim of either of the parties. All contentions are kept open. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS List No.: 1 Sl No.: 13 ...