IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 838 OF 2021 (SP)

BETWEEN:

1. SMT. M. NAGARATHNA W/O MAHADEVAPPA AGED ABOUT 55 YEARS R/O MUDLUPURA VILLAGE KASABA HOBLI CHAMARAJANAGAR TALUK AND DISTRICT-571 313.

…APPELLANT (BY SRI. K.N.NITHISH, ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE)

AND:

1. SMT. PUSHPAMMA Digitally signed W/O LATE SIDDAPPA by DEVIKA M AGED ABOUT 60 YEARS Location: HIGH R/O SANTHEMARAHALLI VILLAGE COURT OF CHAMARAJANAGAR TALUK KARNATAKA AND DISTRICT-571 313.

…RESPONDENT (BY SRI. KUMAR J.C., ADVOCATE)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.04.2021 PASSED IN R.A.NO.5071/2018 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARJANAGARA (SITTING AT KOLLEGAL), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.07.2018 PASSED IN O.S.NO.111/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGAR.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

This matter is listed for admission and I have heard the learned counsel appearing for the appellant and learned counsel appearing for the respondent.

2. This appeal is filed against the concurrent finding and the Trial Court granted the alternative relief directing the defendant to refund the earnest money of Rs.7,00,000/- to the plaintiff within two months from the date of the order and in default, the defendant shall pay interest on Rs.7,00,000/- at the rate of 10% per annum compounded half yearly from the date of the order till realization of the amount and declined to grant the relief of specific performance, though comes to the conclusion that agreement is proved by answering issue No.1. The Trial Court also comes to the conclusion that the defendant has received the amount of Rs.7,00,000 while answering issue No.2 and the plaintiff was always ready in answering issue No.3 as ‘affirmative’. But, while answering issue No.4 whether the plaintiff is entitled for the relief of specific performance of agreement, considered the factual aspects that there was an earlier agreement prior to the sale agreement i.e., in favour of one Mr. K. Chandru from whom, the defendant also taken the amount of Rs.3,50,000/-. Apart from that, the Trial Court also taken note of the circumstances under which she was forced to take the money which has been extracted in paragraph Nos.16, 17, 18 and 19. The Trial Court also relied upon the judgment in RANGANAYAKAMMA VS. N. GOVINDARAJAN reported in

1982 (1) KLJ 385.

3. Being aggrieved by the said judgment granting alternative relief of refund of money, an appeal is filed before the First Appellate Court in R.A.No.5071/2018. The First Appellate Court also having reassessed both oral and documentary evidence as well as question of fact and question of law, answered the points for consideration which have been framed whether plaintiff is entitled for the relief of specific performance and whether an application filed under Order XLI Rule 27 CPC deserved to be allowed. Both the points are answered as ‘negative’ and confirmed the judgment of the Trial Court rejecting the application filed under Order XLI Rule 27 CPC. Being aggrieved by the concurrent finding, present second appeal is filed before this Court.

4. The main contention of learned counsel appearing for the appellant before this Court is that the very appreciation of evidence of D.W.3 by the Courts below is perverse. It is also contented that both the Courts failed to take note of legislative mandate under Sections 91 and 92 of the Indian Evidence Act and ratio laid down by the Apex Court in the case of V. ANANTHA RAJU & ANR. VS. T.M. NARASIMHAN & ORS. in CIVIL APPEAL NO.6469/2021 and also contend that First Appellate Court has erred in not allowing the application filed under Order XLI Rule 27 CPC. Hence, matter requires inter