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2024 Supreme(Online)(Kar) 37015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JUNE, 2024 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ REGULAR SECOND APPEAL NO. 985 OF 2014 (SP)
BETWEEN:
SRI.MUNISWAMY, S/O MEKALLAPPA, AGED ABOUT 80 YEARS R/A KADIREGOWDANAKOTE VILLAGE, KAMMASAMUDRAM POST, BANGARPET TALUK - 563 114.
…APPELLANT (BY SRI. NATARAJ H.C., ADVOCATE)
AND:
1. SRI. NISSAR AHMED S/O. LATE SHAIK ABDULLA, R/AT NEAR CIVIL HOSPITAL COMPOUND, Digitally signed ROBERTSONPET, KGF 563125, by SINCE DEAD BY HIS LRS NARAYANAPPA LAKSHMA MMA Location: HIGH
1(A). SMT ZARIN TAJ COURT OF KARNATAKA W/O LATE NISSAR AHMED, AGED ABOUT 45 YEARS, R/AT MANGAMMAPALYA, HOSUR ROAD, BEHIND BILLAL MASJID, BANGALORE - 560 099.
1(B). SRI. MASOOD AHMED, S/O. LATE NISSAR AHMED, AGED ABOUT 25 YEARS, R/AT MANGAMMAPALYA, HOSUR ROAD, BEHIND BILLAL MASJID, BANGALORE - 560 099.
1(C). SMT. SHABARIM TAJ D/O. LATE NISSAR AHMED, W/O SYED ALI, AGED ABOUT 35 YEARS, R/AT RALLABUDUGUR, KUPPAM TALUK - 517 425. 1(D). SMT. NASEERN TAJ D/O LATE NISSAR AHMED, W/O HIDAYUTULLA, AGED ABOUT 33 YEARS, R/AT KANCHETTAHALLI, MALUR TALUK - 563 130.
1(E). SMT. YASIM TAJ, D/O LATE NISSAR AHMED, W/O AMJADULL, AGED ABOUT 31 YEARS, R/AT TANNEY ROAD, HIDAYAT NAGAR, 8TH CROSS, BANGALORE - 560 045.
1(F). SMT. AHMADHI ANJUM, D/O LATE NISSAR AHMED, W/O WASEEM REHAMAN, AGED ABOUT 28 YEARS R/AT PEENYA 2ND STAGE, HEGANAHALLI CROSS, BANGALORE - 560 110.
1(G). SMT. SALMA ANJUM, D/O LATE NISSAR AHMED, W/O LATE RAIFQ, AGED ABOUT 22 YEARS, R/AT ARAHALLI, HASSAN DISTRICT - 573 201.
…RESPONDENTS (BY SRI. RAVINDRANATH K., ADVOCATE R1(A) TO R1(G)) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.04.2014 PASSED IN R.A.NO.20/2012 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND JMFC., K.G.F, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 13.04.2012 PASSED IN O.S.NO.250/2003 ON THE FILE OF PRL. CIVIL JUDGE AND ADDL. JMFC, KGF.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant who was the defendant in OS.No.250/2003 and respondent in RA.No.20/2012 is before this Court challenging the divergent judgment of the First Appellate Court seeking for the following reliefs:
"WHEREFORE, the Appellant above named humbly prays that this Hon'ble Court may kindly be pleased to:
(a) Call for records.
(b) Set aside the Judgment and Decree passed in R.A.No.20/2012 dated 15.04.2014, passed by the Additional Senior Civil Judge and J.M.F.C at K.G.F, which reverses the Judgment and Decree dated 13.04.2012 passed by the Civil Judge Junior division at K.G.F in O.S.No.250/2003 and consequently dismiss the suit O.S.No.250/2003.
(c) Pass such relief as deem fit by this Hon'ble Court, in the interest of justice and equity."
2. The suit in OS.No.250/2003 was filed by the deceased respondent No.1 for specific performance of an agreement dated 14.08.1988 contending that it is only after the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act 1966, (for short 'Fragmentation Act') was repealed, that the plaintiff had issued a notice, calling upon the defendant to execute a sale deed, the defendant not having executed the sale within the time frame, even after having admitted the agreement, the relief of specific performance has been sought for.
3. The trial Court dismissed the said suit on the ground that the suit was barred by limitation. The Fragmentation Act having been repealed on 03.01.1991, the suit ought to have been filed within three years of the date of such repeal that is by 02.01.1994. The suit having been filed in the year 2003 was beyond the period of limitation and as such, the suit being one for specific performance, the delay in filing the suit, apart from the suit being barred by limitation would not require the trial Court to exercise its powers to grant discretionary relief of specific performance.
4. The First Appellate Court vide the judgment dated
15.04.2014 set-aside the judgment of the Trial Court and decreed the suit for specific performance, on the ground that the plaintiff had established his readiness and willingness for execution and registration of a sale deed. The plaintiff having issued a notice on 04.03.2003 in terms of Ex.P2, the defendant having replied for the same on 10.03.2003 at Ex.P3, the suit having been filed on 05.08.2003, the suit was within time. It was for the reason that in the reply there is no refusal as such and taking into consideration that the agreement was subsisting, the First Appellate Court exercising the discretion under Section 20 of Specific Relief Act, granted the relief of Specific Performance. It is challenging the said judgment, the appellant is before this Court.
5. The above appeal was admitted on 05.12.2022 to answer the following substantial question:-
"Whether the First Appellate Court is justified in holding that the suit for specific performance is in time despite the law relating to the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 was amended in 1991 and the restriction relating to alienation was removed in the year 1991 itself?"
6. Learned counsel for the appellant submits that there being a clause in the agreement of sale at Ex.P1 that the sale has to be executed after the repeal of the Fragmentation Act. The repeal has occurred on 03.01.1991, claim for execution of the sale deed was to be made and in the event of not being executed to initiate such proceedings as may be necessary in relation thereto within a reasonable period of time. The cause of action arose for the first time on 03.01.1991 when the Fragmentation Act stood repealed and it is on such repeal that the plaintiff was entitled to seek for specific performance of the agreement of sale. The cause of action in this case is not one as determined by the parties, but one determined on the basis of an act of the State in repeal of the Fragmentation Act. There is no obligation on the part of the vendor to do anything post the repea
