Full Judgment Text
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CASE NO.:
Appeal (civil) 5807 of 2000
PETITIONER:
Janardhan Narasimha Nayak
RESPONDENT:
Balwant Venaktesh Kulkarni & Anr
DATE OF JUDGMENT: 07/03/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by a
learned Single Judge of the Karnataka High Court allowing the
second appeal filed by the respondent no.1 under Section 100
of the Code of Civil Procedure, 1908 (in short the ’CPC’).
Respondent No.1 is the plaintiff and had filed the suit for
specific performance of the contract of sale dated 31.1.1972.
Suit was decreed by the Trial Court and the appeal was
dismissed by the First Appellate Court. The second
defendant-respondent no.2 took the stand that he was the
purchaser subsequent to the agreement for sale, he had no
knowledge of the agreement and had no notice of the sale and
he is not bound by the earlier agreement of sale. The Trial
Court came to hold that defendant no.2 had knowledge of the
agreement. The First Appellate Court held that either he had
dishonest notion or had notice. At the time of the admission
in the second appeal the following question of law was
formulated:
"Whether the Court below was just in placing
reliance on the order of the Assistant
Commissioner, who rejected the permission of
sale of the land and thus hold against the
appellant?"
Thereafter with the following observations/conclusions
the second appeal was allowed.
"When the trial court on evidence has come to the
conclusion on seeing the witness in the box,
appreciated the demeanor, the appellate court
without considering the points raised by the trial
court went on discussing the legal position and
came to a different conclusion which I have no
hesitation, to set aside on the ground that they are
not warranted by the facts of the case. The entire
approach of the appellate court is vitiated by the
pre-considered mind that the agreement of sale
cannot be given effect to once there was a sale in
between the parties. This view is certainly wrong
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and under such pre-considered notion, the
approach made by the appellate court which has
resulted in wrong delivery of the judgment."
Learned counsel for the appellant submitted that the
second appeal was allowed without indicating any basis and
reason. The conclusions are also without any foundation. It
was erroneously held that the entire approach of First
Appellate Court was vitiated by pre-conceived mind that the
agreement of sale cannot be given effect once there was a sale
in between the parties. No such finding was recorded by the
First Appellate Court.
Learned counsel for the respondents on the other hand
submitted that though the judgment of the High Court is not
happily worded, yet in essence the High Court has found First
Appellate Court’s conclusion to be vitiated.
Perusal of the order of the High Court quoted above
shows that there was total non-application of mind. There is
practically no reason indicated as to why the High Court took
the view that First Appellate Court’s order was on account of a
pre-conceived mind. Merely because the Trial Court had
occasion to see the witness that cannot be a ground to hold
that First Appellate Court had pre-conceived notion. No
reasons had been indicated by the High Court to set aside the
order of the First Appellate Court even without analysing the
evidence and the respective stand.
We, therefore, set aside the order of the High Court, remit
the matter to the High Court for fresh disposal on merits. As
the matter is pending since long, we request the High Court to
dispose of the second appeal as early as practicable preferably
by the end of August, 2007.
The appeal is allowed with no order as to costs.