Karnataka High Court
Madhura Developers vs Achut Shrinivas Kambavi on 22 September, 2011
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 22%° DAY OF SEPTEM BER; 2021 a
BEFORE | |
THE HON'BLE MRS.JUSTICE B: Vv. NAGARA' THN A
RSA NO.5141 2011.
BETWEEN: - .
1}. MADHURA DEVELOPERS
Age: ; , .
PVT.LTD., REP. BY ITS MANAGING DIREC TOR,
RAMESH KALAPPA SHETTY, MADHURA
ESTATE, KESHWAPUR, HUBLI, =. 0.
DHARWAD. Boom APBELLANT(S)
7 ACHUT SHRIN:
AGE: MAJOR, {
R/O: Cl
HUBLI.
Qe JAGADISH. S SHETTAR...
AGE: MAJOR OCC: ADVOCATE & LEADER OF
OPPOSITION IN THE STATE ASSEN ABLY,
R/O MAOH IRA ESTAT , HUBLI
on NANT SHRIN VAS EMBAYV)
JY, cre aDPaPRa WPA "
_ RESPONDENT(S)
(ey s Sri: isint : DATTARAY T HEBBAR, ADV. FOR R1, NOTICE TO R-2
PENSED WITH)
NOK OK Ko
THIS RSA IS FILED U/S. 100 CPC, AGAINST THE JUDGEMENT & &
DECREE DTD:23.1 0 PASSED IN R.A.NO.10/2008 ON THE"
THE FIRST ADDL. SENIOR CIVIL JUDGE AT HUBLI, DISMiS:
APPEAL, FILED AGAINST THE JUDGMENT DTD:01.12.2907 A
DECREE PASSED IN O.S.NO.295/2002 ON THE FILE OF THE TIT ADDL:
CIVIL JUDGE (JR AT HUBLI, DECREEING THE SUIT. FILED FOR ~
POSSESSION AND aoe ee LOR,
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\D PERMANENT INJUNCTION
THIS APPEAL COMING ON FOR ADMISSION THIS: DAY; COURT:
DELIVERED THE FOLLOWING:- oo " re
JUDGMENT
Though this appeal is, posted: for. admission, with the consent of counsel on both sides, if is-heard finally.
2. This setond-appeal is*filed 'bythe second defendant in RA.No.10/2008 dated 23/10/2010. passed by the Ist Addl. Sr. Civil Judge, Hublt:. confirmi ing the judgment and decree passed ~h o "ns ope @ pon ON.
in 0.5.N§"295/2902 dated--1/12/2007, on the bed F actual and vacant possession of the suit schedule property from defendant No.1 and permanent rinses defendants 1 to 3, restraining the defendants . from: 'dor ag: an further act in the suit schedule proper rty, such as de 7 "reg a removal of debris or putting up any Sli :
schedu roperty is a esidential hous e@ beari ing CTS. 'No.4 77 iK1 but in CTS Ward No.1, 1 cut Rote, Hubli. ~ According to the plaintiff, his late father and de xfer ndant No.4 were the defendants of the suit property, which was taken on f€ase over 60 years ago. The plaintiffs fe ther died in the year 1997 and his mother died in the' year 1998." Thestenancy right of suit property devolved upon the ola nti an d defendant No.4, who has been arrayed ag a formal party as he was unavailable. The plaintiff ti a (D WI is we;
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yy ot Ss Ou cr = m the suit: C propert: / and was temporarily . had appo ointed a caretaker to look after the suit property since he was not 'ésiding there but used to regularly visit the suit belonged to defendant No.1. However, since the defendant No.1 Saal Cc ina @m io OQ qu oO ey an Tw or "
ay) a ov Ww as ne filed HRC.No.17/99,_ seeking permission to deposit the rents in Court. When the plaintiff. we temporarily residing at Pune, all of a sudden, oi"
caretaker informed him that some } persons "were ; ilegatly demolishing the suit property ang when he fushed So Hubli 6/6/2002, ne found that defendant No 2 wi ith 'the activg Support of defendant No.3 had started dem olitio onvof.the suit property by taking law into their own hands,. Wi ith a-view to construct a multi storied building on the soi proberty. since'the defendants had illegally trespassed 'suit _ property, he has filed a suit seeking
5. After service of summo ns of notice from the trial Court, defendarts:.2,arid 3 appeared and filed written statement, while the other defendants did not appear. Defendant No.2 contended ma No.2 who had purchased the property under a registered sale deed was in lawful possession of the same and that the. plaintiff had no right, title or interest in respect of the said property. They also contended that they had invested h uge Sums.of money ~ on the said property and hence, sought for dismissal. of thie.suits Defendant Nos.1 and 4 were placed ex-parte. framed the following issues .and.- additional -issue, for its i. Whether 'the plaintiff "proves. his tenancy rights upon the.suit property?. me
- Whether' the. plain Atif. proves his -- illegal dispossession 'from. the™.suit property by the defendants
3. «. Whether "bhe plaintiff is entitled to get the "possessiin OF. the suit property? Spe Wirether. _the plaintiff proves that the acts of defendants. "in demolition and = making -- any construction in the suit property is illegal and = : Violatiorr of the rights? OB "Whether the suit is bad for mis joinder of ~ parties? hy.
6. Whether the defendant No.2 proves that valuation of suit and payment of court fee is. . improper and incorrect? _ |
- Whether the court lacks pecuniary jurisdiction _ to try this sult? | . | ae Whether the plaintiff is entitled. for the reliefs. claimed in the suit? me | y What order or decree?
ADDITIONAL ISSUES:
i Whether the def fendants* prove. that the suit of plaintiff is not mainteinabie since. pla nif has no right to claim. the' su jit proverty under "Sec.5 of the Karnataka Pent Act, "19997
7. In Support of his case, the plaintiff examined himself as P.W.1 and produced '28° documents, which were marked as Exs.P.i to: P:28, while defendant No.2 examined D.W.1 and a oe me produced 11 docunsents, which were marked as Exs.D.1 to D.11. '. Nos. 1 to 5.and Issue No.8 in the affirmative and Issue Nos.6 and 746 the negative and also held that Additional Issue No.1 would th hy ay) 3 O
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property to the plaintifi property. The suit against defendant No 3 was disniissed-..
8. Being aggrieved by the sai ic judgment and decree, the:
consideration:-
L. Whether. the. plaintiff proves. his: possession over the suit property as tenant as on 3.6.2002 and AIS ¢ dispossess jon subsequently by the defendants No.1, 2 without due process of. aw? > Whether the tr ial Cou ré was not having pecuniary juris "dic tion. tG. ent tertain the suit and Court fee palG.was insufficien t? fee Whether: th ppeal is maintainable in view of = wy bar 'undér Section 6(3) of Specific Relief Ac Mey 9 After hearing the parties, the first appellate Court answered Point No.1 in favour of the plaintiff and held*Point Nos.2 to 4 in the negative and dismissed the. appeal. By -
confirming the judgment and decree of the triaf Court. Being © aggrieved by the said judgment and decreé, the secoher defendant has preferred this appear." Be t
10. I have heard the learned-counsel for the appéllant and the learned caveator/respondent Nosty - oe ns O cr
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ii. It is contended ar behalf.of the 'appellant tha the Courts erred in.comiing to the conclusion that the suit filed by 1963 (hereinafter, referred to as the 'Act'). Having regard to the pleadings and the prayers stated in the plaint, the suit was not one vader Section'6 of the Act. Infact, learned counsel for the appellant: has drawn ray attention to various paragraphs of the . plaint and-.particularly, Paragraphs 10 and 11 of the plaint, under "Section 41(d) of the Karnataka Court Fees and Suit oo Se! ' against the landlord for recovering occupancy of tke property. aes uae Sab Ee wes AJR Ly.
from which, the plaintiff claimed to have been illegally-ejecte by the landlord and seeking consequential injunction. ~Under-the_ circumstances, both the Courts wer® Rot right if approaching the s wd / ° pe a Pat Dasy ae ; 4 ia . we pd es _ _ oe . Loo iw lis between the parties as being a suit filed against disposgsession contended that having.-regardte the reliefs:sought in the Suit, QU wT wT & Qu = .
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a) Cy oO & = on = Cu Fy = Oo ep ~ KD = en 5 e th : A Me : on of the "Act. ~ince.the approach of the Courts below were erron: ry poe _ ive co ea -- a a erroneous-and the, //s. between the parties was considered to be . : f id poe PR we receeded on me ane | ip pros 2ded OM tne one nana to hold that the appeal was not "OMB inkainable in spicata £ thocart 2 i Meintainabie' in view of Sub-section 3 of Section 6 of the Ac ; ct, 4, aa we consideration on merits. He therefore, submitted that if the First appellate Court had proceeded to answer Point No.4.in. the"
negative, then the appeal would not have been cansidered on i2. Per contra, learned GC UnSEL tor respondent submitted that the plaintiff was illegally dispossessed. by 'the defendants Under the circumstances, a suit for. possession was filed; that there was ample' evidence pr roduced 'by: the p slaintiff to establish defendant Novi had sold the suit property to defendant No.2, the plaintiff could not:| have been Gispossessed plaintiff from the said property. "The cefendamts.could have taken steps in accordance _ relief of possession. The Courts below have rightly appreciated to the plaintiff and also the consequential injunction. issved against the defendants are just and proper, which do: not-call fer any interference in this appeal,
13. Having regard to the riva! contentions raised: by, the | parties, the following substantial questians of 4 aw would arise fo
1) Whether the Courts pelow-were. right in hy assuming that t Ne sult filed p by the blaint'ff was one under Section 6 ar the e Act? |
2) Ii the answer tothe above questions is in the negative," wheter thie first appellate Court was right in. foiding treat t the appe. ai was not maintainable under Section 6(3) of the. Act and at the same tim proceeding tt consider.the appeal on merits?
i4. On a reading of the plaint, it is noticed that the re-possession and paid the Court Fee in terms of Section 4i(1)
(d) of the Court Fees and Suit Valuation Act. That apart, the plaintiff also prayed for the relief of permanent injunction. amd"
accordingly, paid Court Fee under Section 26 of the said Act. At"
Section 6 of the Specific Relief Act, which is-equivaient-to, Section 9 of the Specific Relief Act, 1877, then the fee had to be L computed on one half of the market: value of the property or Rs.1,000/-, whichever.was higher-in-terms of the Section 28 of the said Act.
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15. Having..regarc&-to the. nature of reliefs claimed by ee which has been paid, it can plaintiff and the requisite Court. be safely concluded that the plaintiff did not seek reliefs under "bul.-sought for re-possession from his Therefore, the Courts were not right in concluding that the suit 'Was-one under Section 6 of the Act. Therefore, substantial guestion No.1 is answered in favour of the appellant by holding . g bd that the suit filed by the plaintiff was not one under Section 6 of
16. In this context, reliance could be placed en a decision - of the Apex Court in the case of H.R. Vedavyasachar ve Shivashankar and another [(2009) 8 SCC 234], Ww hereir ny the Apex Court has held that where the relict. claimed | is nit one seeking possession simplic or.put otter feliefs such as injunction mandatory or permanent are sought, then, such '@ suit would not come under the purview of Se ect ion6 of tt Ne 'Spe =cific Relief Act. i7. The Px on auestion t that ari Ses 'for my consideration is as to whether the first appellate Cou ree - could have held that the appeal was not. maintainable undér Section 6(3) of the Act and be necessary to dilate on this aspect since in answer to ion'No.1, it has been held that the suit was not .. under Section ECL) of the Act. Under the circumstances, it is ""heid "that the appeal filed by the defendant No.2 was arises is as to whether the first appellate Court while on the one hand, coming to a conclusion that it had no jurisdiction.to entertain the appeal in view of Section 6(3) of the: Act; coud © have at the same time considered the appealun 1 Inetits and - confirmed the judgment and decree of the trial C "ourt. "Si nee the:
basic approach of the first appellate Court was éreoneous as having heid that the suit was on e under Secti ion 6 of of the Act and therefore, the appeal was nition, inmy view, the first appellate Court was not right in. an newering t ng t the Contentions of the appellant herein off m er ts. and. sake ai Faissing g, held that the appeal as not maintaineble "3 : ad" thereby, confirming the judgment and decree-of the ia court. Since the basic premise on which the' proceedinas fave' been considered has been erroneous, ir my view, 'it wou 'id be in the interest of justice to remarid. the matter, to the First appellate Court and to consider the case: of th fe parties on merits without having regard to . Section 6 of the Act.
18. At this stage, it would be relevant to notice the 'contention of the learned counsel for respondent No.1, who the findings given by the Courts below being concurrent, the, same can be considered by this Court, by eppr rech atin' tl 2 vidence on record. Such a course inmy-view,: would 3, Be Proper since the Courts below have: proceed ded that ie case is one under Section 6 of the Act and whér the first appellate Court has held that the appeal wasnt spiel it could not also have considered the case on. rits ang. the ereby, d ismissed the appeal on the gi round oF "mai acon nabill iit : > theFetore, in my view, the matter has to™ be. emai se ie the first appellate Court, 'to consider the tase ab tne. pertieson merits, on the premise that the appeal is maintainable. . Accordingly, second substantial question of Saw J IS alsc answered | in favour of the appellant "their owre costs. , ince thé-matter is remanded to the first appellate Court, ae £6 consider.the case of the parties on merits and in accordance ~ 16 c with law and the suit is of the year 2002, the first appellate from the date of appearance of the parties. Since the concerned parties are represented by their respective counsel, fre parties © i are directed to appear before the first appekate Court on i2-10-
2011.
In the interregnum, both parties-are 'directed to maintain status-quo, till disposal of the appeal by the First appellate Court. Office is directed to-return.the L.C.Rs Court forthwith.
* Pepys