Janardhan Narasimha Nayak Vs.
Balwant Venaktesh Kulkarni & Anr [2007] Insc 244 (7 March 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
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 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.
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