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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.