1 IN THE HIGH COURT OF BENCH

DATED THIS THE 23 RD DAY OF SEPTEMBER, 2015

BEFORE

THE HON’BLE MR.JUSTICE B. VEERAPPA

REGULAR SECOND APPEAL NO.100780/2014 C/W REGULAR SECOND APPEAL NO.100781/2014

IN RSA NO. 100780/2014

BETWEEN :

SRI. HANUMANTHAPPA, S/O BHIMAPPA MYAGERI, AGED ABOUT 43 YEARS, OCCUPATION: AGRICULTURE, R/O TEACHERS COLONY, BENGERI, HUBLI-580023. ... APPELLANT

(BY SRI. H.N.M. PRASAD, ADVOCATE)

AND:

1. SRI. MEGHARAJ, S/O AMICHAND JAIN, AGED 55 YEARS, OCC: AGRICULTURE & BUSINESS, R/O RAMDATTA APARTMENT, KESHWAPUR, HUBLI-580023.

2. SRI. RAJESH, 2 S/O MEGHARAJ JAIN, AGED 28 YEARS, OCC: AGRICULTURE & BUSINESS, R/O RAMDATTA APARTMENT, KESHWAPUR, HUBLI-580023.

3. SMT. DYAMAVVA, W/O MAHADEVAPPA MANE, AGED ABOUT 38 YEARS, OCC: HOUSEHOLD WORK, R/O VILLAGE, PO. , TALUK HUBLI-580020.

4. KUMAR MAHANTESH, S/O MAHADEVAPPA MANE, AGED 12 YEARS, OCC: STUDENT, R/O KATNUR VILLAGE, PO. GIRIYAL, TALUK HUBLI-580020.

5. KUMAR ARJUN, S/O MAHADEVAPPA MANE, AGED ABOUT 14 YEARS, OCC: STUDENT, R/O KATNUR VILLAGE, PO. GIRIYAL, TALUK HUBLI-580020. ... RESPONDENTS

(BY SRI.PRASHANT HOSAMANI, ADVOCATE FOR R1& R2, SMT. V. VIDYA, ADVOCATE FOR R3-R5) *** THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED 02.08.2014 PASSED IN R.A. NO. 126/2012 ON THE FILE OF THE III ADDITIONAL SENIOR 3 CIVIL JUDGE HUBLI, DISMISSING THE APPEAL AND CONFIRMING THE APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED 30.10.2012 AND THE DECREE PASSED IN O.S. NO. 564/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC AT HUBLI, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT AND FOR DECLARATION.

IN RSA NO. 100781/2014

BETWEEN :

1. SMT. DYAMAVVA, W/O MAHADEVAPPA MANE, AGED ABOUT 42 YEARS, OCC: HOUSEHOLD WORK, R/O GIRIYAL VILLAGE, TALUK HUBLI AND ALSO NAGASHETTIKOPPA, HUBLI-580020.

2. KUMAR MAHANTESH, S/O MAHADEVAPPA MANE, AGED 16 YEARS, OCC: STUDENT, R/O GIRIYAL VILLAGE, TALUK HUBLI AND ALSO NAGASHETTIKOPPA, HUBLI-580020.

3. KUMAR ARJUN, S/O MAHADEVAPPA MANE, AGED ABOUT 17 YEARS, OCC: STUDENT, R/O GIRIYAL VILLAGE, TALUK HUBLI AND ALSO 4 NAGASHETTIKOPPA, HUBLI-580020. ….APPELLANTS

(BY SMT. VIDYA, ADVOCATE)

AND:

1. SRI. MEGHARAJ, S/O AMICHAND JAIN, AGED 58 YEARS, OCC: AGRICULTURE & BUSINESS, R/O RAMDATTA APARTMENT, KESHWAPUR, HUBLI-580023.

2. SRI. RAJESH, S/O MEGHARAJ JAIN, AGED 28 YEARS, OCC: AGRICULTURE & BUSINESS, R/O RAMDATTA APARTMENT, KESHWAPUR, HUBLI-580023.

3. SRI. HANUMANTHAPPA, S/O BHIMAPPA MYAGERI, AGED ABOUT 48 YEARS, OCCUPATION: AGRICULTURE, R/O TEACHERS COLONY, BENGERI, HUBLI-580023. …RESPONDENTS

(BY SRI. PRASHANT HOSMANI, ADVOCATE FOR R1 & R2)

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED 02.08.2014 PASSED IN R.A. NO. 127/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE HUBLI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 30.10.2012 AND THE DECREE PASSED IN O.S. NO. 5 564/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBLI, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT AND FOR DECLARATION.

THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING :

JUDGEMENT

These appeals are filed by defendant No.4 and defendant Nos. 1 to 3 against the judgment and decree dated 2nd August, 2014 made in R.A.Nos.

126/2012 and 127/2012 respectively on the file of the III Additional Senior Civil Judge, Hubli dismissing the appeals and thereby confirming the common judgment and decree of the trial Court dated 30th

October, 2012 made in O.S.No.564/2008 on the file of the Principal Civil Judge and JMFC., Hubli decreeing the suit of the plaintiffs for specific performance of contract and directing defendants to execute the registered sale deed in favour of plaintiffs in respect of 6 suit property and also declared that the sale deed dated 7.5.2008 executed by defendant Nos. 1 to 3 in favour of defendant No.4 in respect of suit property was a sham and bogus document and consequently, declared as a null and void and not binding on the plaintiffs.

2. Respondent Nos.1 and 2 herein, who are plaintiffs before the trial Court had filed a suit for specific performance against the defendants contending that the agricultural land bearing

R.S.No.14/1A measuring 3 acres on the eastern portion out of 4 acres and 12 guntas situated at

Nagashettikoppa village of with specific boundaries is the suit property. That defendant Nos.

1 to 3 are the legal heirs of deceased Mahadevappa

Mane, who was the absolute owner of suit property and they had acquired the right and title to the said property by succession and have become the absolute 7 owners of the said land. That defendant Nos. 1 to 3 have no house property and therefore, defendant No.1 decided to dispose off some portion of the land with an intention to purchase a plot and to build a house thereon for herself and for her minor children.

Hence, she expressed her intention of selling the said property to the people of Nagashettikoppa village for which the plaintiffs approached her and expressed their intention to purchase the same. Accordingly, defendant No.1 executed an agreement of sale on

24.11.2006 in favour of the plaintiffs for herself and on behalf of her children for a sum of Rs.1 lakh per acre i.e., for a total consideration of Rs.3 lakhs and received a sum of Rs.20,000/- as earnest money. As per the sale agreement, defendant No.1 had to take permission from the competent Court of Law for alienation of suit property on behalf of minors - defendant Nos. 2 and 3, for which she filed G & W 8 No.11/2007 before the Principal Civil Judge (Sr.Dn.),

Hubli and the same came to be allowed on 20.7.2007.

The said fact was not brought to the notice of the plaintiffs. In the meanwhile, defendant No.1 received the entire consideration from the plaintiffs in installments from time to time. Later defendant No.1 insisted the plaintiffs for payment of excess amount.

Accordingly, the plaintiffs also paid excess amount to defendant No.1. Totally defendant No.1 received

Rs.4,20,000/- from the plaintiffs. In spite of receipt of the same, defendant No.1 postponed the execution of the sale deed stating that she had not obtained the orders from the Court and after a lapse of 4 to 5 months the plaintiffs enquired the matter in the court, etc., and therefore, they filed a suit.

3. The defendants appeared through their

Counsel. Defendant No.1 filed her written statement on her behalf and on behalf of defendant Nos. 2 and 9 3. Defendant No.4 filed a separate statement.

Defendant Nos. 1 to 3 denied all the plaint averments contending that the husband of defendant No.1 expired about 4 years prior to the alleged agreement; that defendant No.1 is a poor and illiterate lady and defendant Nos. 2 and 3 are minors; that defendant

No.1 is not having any near relatives at Hubli and that she had intended to settle in her parents place along with her children and to have a small residence there; that the suit land is the only ancestral family property; that since the plaintiffs have approached and expressed their willingness to purchase the suit land and after negotiation, defendant No.1 had agreed to sell the suit land for Rs.2 lakhs per acre and for a total consideration of Rs.6 lakhs for which plaintiffs had paid a sum of Rs.10,000 in cash and Rs.10,000/- through cheque as earnest money and had agreed to take the sale deed as early as possible by paying the 10 remaining amount. It was further contended that the plaintiffs took the L.T.M. of defendant No.1 without explaining the contents on the alleged agreement which was typed in English and some portion of the agreement was blank; that at the request of defendant

No.1, the plaintiffs had paid Rs.1 lakh on 12.1.2007,

Rs.1 lakh on 25.6.2007 and Rs.2 lakhs on 26.7.2007 and that defendant No.1 had obtained permission from the Court on 20.7.2007 and that defendant

NO.1 had obtained permission from the Court on

20.7.2007 and approached the plaintiffs and insisted for payment of balance amount but the plaintiffs had postponed the payment and lastly the plaintiffs have got issued a notice dated 13.3.2007 by making false allegations, etc. Therefore, they sought for dismissal of the suit with costs.

4. Defendant No.4 filed his written statement denying the entire plaint averments contending that 11 the suit filed by the plaintiffs is not maintainable and he was not aware of the alleged sale agreement dated

24.11.2006, and the same is not in accordance with law. That the plaintiffs are not entitled to get any relief of specific performance of execution of sale deed; that he has got published a public notice in

Samyukta Karnataka Daily Newspaper dated

11.1.2008 calling objections from the interest persons prior to his purchase of suit land; that no one had appeared and raised any objections regarding sale of suit land; that he is the bonafide purchaser of the suit land purchased on 7.5.2008 for a consideration of Rs.8,10,000/- and therefore, he sought for dismissal of the suit.

5. Based on the pleadings, the trial Court framed the following issues:

“1. Whether the plaintiffs prove that the defendant No.1 to 3 have agreed to sell suit 12 property at the rate of Rs.1,00,000/- per acre?

2. Whether defendant No.1 to 3 prove that the plaintiffs have committed fraud on them by mentioning rate of one acre of land was Rs.1,00,000/- in agreement of sale?

3. Whether the defendant No.4 is bonafide purchaser of suit land?

4. Whether the plaintiffs are entitled for the specific performance of contract or refund of Rs.4,20,000/- from defendant No.1 to 3?

5. What decree or order?”

Addl. Issue

“1. whether the defendant No.4 proves that the plaintiffs are not entitled for the relief of specific performance in view of reasons stated in his W/s para No. 7A?”

6. In order to establish the plaintiffs' case, plaintiff No.1 got examined himself as P.W.1 and 13 marked the documents - Exs.P.1 to 12. Defendant

No.4 got examined himself as D.W.1 and defendant

No.1 as D.W.2 and defendant No.4 got marked the documents as Exs.D.1 to 7. Defendant Nos. 1 to 3 have not produced any documents on their behalf.

7. After considering the entire material on record, the trial Court recorded a finding that the plaintiffs have proved that defendant Nos. 1 to 3 had agreed to execute the registered sale deed of the suit properties at Rs.1 lakhs per acre. Defendant Nos. 1 to 3 have failed to prove that the plaintiffs had committed a fraud on them by mentioning the rate of one acre of land at Rs.1 lakh in the agreement of sale; that defendant No.4 has failed to prove that he is the bonafide purchaser of the suit land. Accordingly, the suit was decreed as prayed for.

8. Against the said judgment and decree, Sri

Hanumanthappa/4th defendant filed R.A.No.126 and 14 defendant Nos. 1 to 3 filed R.A.No.127/2012 before the III Additional Senior Civil Judge, Hubli.

9. The appellant in R.A.No.126/2012 filed an application under Order 41 Rule 27 of the Code of

Civil Procedure on 17.11.2012 along with appeal memo for production of additional evidence. Since both the appeals were filed against the common judgment and decree of the trial Court, they were heard together and a common judgment and decree was passed. While passing the common judgment and decree, the lower Appellate Court without considering the application I.A.II filed by the 4th defendant under Order 41 Rule 27 of CPC., has proceeded to decide the appeal which has resulted in dismissing the appeals filed by both defendant No.4 and defendant Nos. 1 to 3 by the impugned judgment and decree dated 2nd of August, 2014. 15 10. Against the said common judgment and decree of the lower Appellate Court, the present appeals are filed by defendant No.4 and defendant

Nos. 1 to 3.

11. I have heard the learned Counsel for the parties to the lis.

12. Sri H.N. Manjunath Prasad, learned

Counsel for the appellant in RSA No. 100780/2014 contended that while filing R.A.No. 126/2012 an application - I.A.II under Order 1 Rule 27 of CPC had been filed before the Lower Appellate Court but without considering the said application, it has proceeded to pass the impugned judgment and decree which is not sustainable in view of the dictum of the

Hon'ble Supreme Court in the case of Jatinder Singh and Another -vs- Mehar Singh & Others with Balbir

Singh and Another -vs- Jatinder Singh and Another 16 reported in AIR 2009 SC 354 and therefore, he sought for setting aside the judgment and decree of the

Appellate Court.

13. Smt. Vidya, learned Counsel for the appellant in RSA No. 100781/2014 contended that though there was no application filed along with RA

No. 127/2012, it is unfortunate that the Lower

Appellate Court clubbed the two appeals based on the common judgment and since the common judgment is passed, the matter has to be remitted to the Lower

Appellate Court to consider the application and pass the judgment and decree afresh.

14. Per contra, Sri Prashant Hosamani, learned

Counsel for the respondents sought to justify the impugned judgment and decree of the Appellate Court and is unable to dispute the law declared by the

Hon'ble Supreme Court in the case of Jatinder Singh 17 supra. He also contended that there was no application filed under Order 41 Rule 27 of CPC in

R.A.No.127/2012. He does not dispute the fact that the impugned judgment and decree is passed by the

Lower Appellate Court confirming the judgment and decree passed by the trial Court decreeing the suit and directing defendant Nos. 1 to 4 to execute the sale deed in pursuance of the agreement of sale; that defendant No.1 has filed a separate appeal and defendant Nos. 1 to 3 have also filed separate appeal but while passing the impugned judgment and decree, the Lower Appellate Court has clubbed both the appeals and has passed common judgment and decree giving common reasons and framing common issues. Therefore, his contention cannot be accepted that the matter cannot be remanded in so far as the second appeal filed by defendant Nos.1 to 3 are concerned. He has not brought to the notice of this 18 Court that any of the provisions of CPC or any law declared by the Hon'ble Supreme Court in this regard, this Court has no other option but to accept the same and set aside the judgment and decree of the

Appellate Court since common judgment and Decree is passed.

15. This Court while admitting these regular second appeals has framed the following substantial question of law for consideration:

Whether the Appellate Court is justified in

proceeding with the merits of the case,

without considering the application filed

under Order 41 Rule 27 of the Code of Civil

Procedure, 1908 for producing additional

evidence?

16. I have given my anxious consideration tot he arguments advanced by the learned Counsel for 19 the parties to the list and perused the entire material on record.

17. It is not in dispute that the plaintiffs had filed a suit for specific performance and after contest the trial Court decreed the suit granting specific performance and directed defendants to execute the sale deed and defendant Nos. 1 to 3 are the owners of the schedule property and defendant NO.4 is a subsequent purchaser. Now the trial Court granted a decree against all the defendants. Therefore, there were two appeals filed by the vendors in

R.A.127/2012 and purchaser in R.A.No.126/2012.

During the pendency of the appeal before the Lower

Appellate Court, an application was also filed along with the appeal memo in R.A.No.126/2012 under

Order 41 Rule 27 of CPC. Admittedly the Lower

Appellate Court while passing the impugned judgment and decree not at all considered the said 20 application-I.A.II for production of additional evidence and it has dismissed the appeals which is not permissible in view of the dictum of the Hon'ble

Supreme Court in the case of Jatinder Singh supra.

18. It is a well settled law that an application filed under Order 41 Rule 27 of the Code of Civil

Procedure is to be considered at the time of hearing of the appeal on merits, so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand or on the fact, whether the applicant had an opportunity for adducing such evidence at the earlier stage or not, but it depends upon whether or not the Appellate

Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, 21 whether the Appellate Court is able to pronounce the judgment on the materials before it without taking into consideration the additional evidence sought t be adduced. Such occasion would arise only if on examining the evidence as it stands the Court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court.

19. In the present case, without considering the application - I.A.II filed under Order 41 Rule 27 read with Section 151 of CPC, the Lower Appellate Court proceeded on the merits of the case. Before disposing of the appeal on merits, it is the duty of the Appellate

Court to consider the application filed under Order 41

Rule 27 of the Code of Civil Procedure. It should be considered at the first instance at the time of disposal of the appeal on merits. In the present case, the

Appellate Court has not considered before deciding the appeals on merits or at the time of disposing of 22 the appeals on merits and the same is contrary to the dictum of the Hon'ble Supreme Court in the case of

Jatinder Singh and Another -vs- Mehar Singh &

Others with Balbir Singh and Another -vs- Jatinder

Singh and Another reported in AIR 2009 SC 354 at paragraphs 4 and 5 which is as follows:

"4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal 23 along with the application for acceptance of additional evidence in accordance with law.

5. For the reasons aforesaid, the impugned judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs."

20. In view of the aforesaid reasons, the substantial question of law is answered in the negative, holding that the Appellate Court is not justified in dismissing the appeals without considering the application - I.A.II filed under Order

41 Rule 27 of the Code of Civil Procedure by the appellants. In view of the same, the impugned judgment and decree of the Lower Appellate Court is vitiated which cannot be sustained.

21. In the result, the appeals are allowed. The impugned common judgment and decree of the Lower

Appellate Court dated 2nd August, 2014 made in RA 24 Nos.126/2012 and 127/2012 on the file of the III

Additional Senior Civil Judge, Hubli is set aside and the matters are remanded to the Lower Appellate

Court for fresh consideration with a direction to consider the application - I.A.II filed under Order 41

Rule 27 of the Code of Civil Procedure and pass fresh orders in accordance with law.

22. Since the suit is of the year 2008, the Lower

Appellate Court is directed to decide the appeals on merits expeditiously on priority basis after giving opportunity to both parties and in accordance with law.

23. Both the parties are directed to appear before the Lower Appellate Court without waiting for any notice on 3.11.2015.

Ordered accordingly.

SD/- Judge Nsu/-