Karnataka High Court
T. S. Venkateshaiah vs The Chief Secretary on 12 August, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:32351
MSA No. 55 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 55 OF 2022
BETWEEN:
1. T. S. VENKATESHAIAH
S/O. LATE T. K. SATHYANARAYANA SHETTY,
AGED ABOUT 58 YEARS,
BUSINESSMAN AND AGRICULTURIST
2. T. S. MALLIKARJUNA
S/O. LATE T. K. SATHYANARAYANA SHETTY,
AGED ABOUT 55 YEARS,
BUSINESSMAN AND AGRICULTURIST
BOTH ARE RESIDING AT
CHELUR VILLAGE,
CHELUR HOBLI,
BAGEPALLI TALUK,
Digitally CHIKKABALLAPURA DISTRICT-563 124.
signed by ...APPELLANTS
MALATESH
KC (BY SRI. PRITHVI RAJ, ADVOCATE FOR
Location: SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)
HIGH
COURT OF AND:
KARNATAKA
1. THE CHIEF SECRETARY,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
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NC: 2024:KHC:32351
MSA No. 55 of 2022
2. THE TAHASILDAR
BAGEPALLI TALUK,
BAGEPALLI-561 207.
...RESPONDENTS
(BY SRI. T.P. MALIPATIL, AGA)
THIS MSA IS FILED UNDER ORDER 43 RULE 1 (U) OF THE
CPC, AGAINST THE JUDGMENT AND DECREE DATED
11.03.2022 PASSED IN RA.NO.24/2019 ON THE FILE OF THE
SENIOR CIVIL JUDGE, BAGEPALLI, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED
12.06.2018 PASSED IN OS.NO.341/2017 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, BAGEPALLI, DECREEING THE SUIT
FOR INJUNCTION AND REMANDING THE MATTER BACK TO THE
TRIAL COURT BY GIVING OPPORTUNITY TO DEFENDANT TO
FILE WRITTEN STATEMENT AND TRIAL COURT IS DIRECTED TO
DISPOSE OFF THE CASE ON MERITS.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Shri Prithvi Raj, for Shri G.Balakrishna Shastry, learned Counsel for the
appellants and Shri T.P.Malipatil, learned AGA for the respondents.
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NC: 2024:KHC:32351 MSA No. 55 of 2022
2. The plaintiffs in O.S.No.341/2017 are the appellants. They filed a suit for permanent injunction against the respondents on the file of the Senior Civil Judge, Bagepalli. The said suit was decreed ex-parte in the absence of the written statement being filed by the defendants.
3. Being aggrieved by the same, the defendants therein filed an appeal in R.A.No.24/2019. Learned Judge in the first appellate Court after securing the records noted that no written statement was filed on behalf of defendants, followed the judgment of the Hon'ble Apex Court in the case of Coal Mines P.F.Commissioner Thr. Board of Trustee Vs. Ramesh Chandra JHA reported in 2012 (2) SCR 887, noted the requirements of law for issuance of prior notice especially when the Government is a party and also noted the principles of law enunciated in the case of T.L.Nagendra Babu Vs. Manohar Rao Pawar reported in ILR 2005 KAR 884, set aside the ex-parte decree and remitted the matter to the trial court for fresh -4- NC: 2024:KHC:32351 MSA No. 55 of 2022 disposal in accordance with law, after affording an opportunity for the defendants to file the written statement.
4. The said order is called in question by the plaintiffs in this appeal.
5. Reiterating the grounds urged in the appeal memorandum, Shri Prithvi Raj, learned Counsel for the appellants vehemently contended that first appellate court has grossly erred in remitting the matter to the trial court for fresh disposal resulting in miscarriage of justice and sought for allowing the appeal.
6. Per contra, learned AGA supports the impugned judgment.
7. Having heard the parties, this Court perused the material on record meticulously. On such perusal of the material on record, it is crystal clear that having regard to the urgency pleaded, prior notice under Section 80 of CPC was dispensed with by exercising the power under Section -5- NC: 2024:KHC:32351 MSA No. 55 of 2022 80(2) of CPC. Thereafter, learned trial Judge has proceeded to pass the order as prayed for, which is incorrect. Thereafter, notice was issued to the defendants.
8. Learned Additional Government Pleader appeared and did not choose to file the written statement and the suit was dismissed ex-parte.
9. The learned Judge in the first appellate court was of the opinion that an opportunity to be given for the defendants to file the written statement & contest the suit and thus, remitted the matter. May be the first appellate court has not taken into consideration dispensation of notice by exercising the power under Section 80(2) of CPC. Therefore, even though suitable reasons assigned in the impugned judgment by the first appellate court insofar as the prior notice as is contemplated under Section 80(2) of CPC cannot be taken into consideration, the fact remains that the decree being ex-parte decree, especially, the Government being the defendants, providing an opportunity for the Government to file the written -6- NC: 2024:KHC:32351 MSA No. 55 of 2022 statement and contest the suit in accordance with law cannot be faulted with.
10. Accordingly, no grounds are made out for interference in the impugned order. Accordingly, the following:
ORDER
(i) The appeal is merit less and it is accordingly dismissed.
(ii) No costs.
Sd/-
(V SRISHANANDA) JUDGE YN List No.: 1 Sl No.: 39