Karnataka High Court
Perikal Malappa vs T. Venkatesh Gupta on 12 July, 2006
Equivalent citations: AIR 2007 KARNATAKA 12, 2007 (1) ABR (NOC) 215 (KAR), 2007 (1) AIR BOM R 215, 2006 (5) AIR KANT HCR 507, 2006 A I H C 3523, (2006) 4 CIVILCOURTC 320, (2006) 5 KANT LJ 325, (2006) 4 ICC 562, (2006) 47 ALLINDCAS 659 (KAR), (2007) 2 CIVLJ 453, (2006) 47 ALLINDCAS 659
Author: K.L. Manjunath
Bench: K.L. Manjunath
JUDGMENT K.L. Manjunath, J.
1. This is the defendant's appeal. The respondent was plaintiff in O.S. No. 1585 of 1996 on the file of the City Civil Judge at Bangalore. The appellant was the defendant in the suit.
2. The plaintiff filed the suit for a decree of mandatory injunction, directing the defendant to demolish the compound put up by him in B schedule property in the area marked as ABCD in the annexed sketch and for a perpetual injunction to restrain the defendant from interfering with the putting up any construction in the area shown as ABCD.
3. According to the plaint averments, plaintiff is the co-owner of property bearing Nos. 25 and 26 situated at Setty Muddanna Lane, Cottonpet, Bangalore-53. According to him he has become the owner of the suit property by virtue of the sale deed executed by one Krishnamurthy and Ors.. Krishnamurthy is none other than the brother of the defendant. According to him, he has obtained licence and plan for construction of a building. The defendant being a local MLA and a former Minister has set up the Corporation officials to interfere with the constructional activities of the plaintiff. Therefore, he filed a suit against the Corporation and also against the defendant in O.S. No. 2877 of 1990 for declaration and injunction which suit is decreed in his favour.
4. The defendant who has no right to put up any construction on the common passage has put up a construction by encroaching 2' x 38.8' from out of the plaintiffs property in addition to the common passage. Therefore, he filed the suit to demolish the unauthorised construction put up by the defendant and for a perpetual injunction.
5. The defendant contested the suit. He has denied the allegations made in the plaint. According to him he has not encroached upon any portion of the plaintiffs property and that the compound was in existence since several decades contending that he has not put up any new construction requested the Court to dismiss the suit.
6. Based on the above pleadings, the Trial Court framed the following issues.
1. Whether the plaintiff proves the cause of action as alleged in the plaint?
2. What order or decree?
7. On behalf of the plaintiff, his Power of Attorney Holder Ranganath Gupta is examined as P.W. 1. He relied upon Exs. P. 1 to P. 12. On behalf of the defendant, his Power of Attorney Holder one L. Mahesh was examined as D.W. 1. He relied upon Ex. D. 1.
8. The Trial Court after hearing the learned Counsel for the parties on merits reserved the case for judgment. After the case was reserved for judgment, the Court felt that it had not framed proper issues. Therefore, the Court framed the following issues on its own:
1. Whether the plaintiff proves the existence of common passage described as 'B' Schedule in the plaint?
2. Whether he further proves that the defendant encroached upon the entire common passage by putting up a compound wall unauthorisedly in the portion marked as ABCD in the plaint sketch?
3. Whether he is entitled to the injunctions prayed for?
9. These issues were framed by the Court after the case is reserved for judgment without giving an opportunity for both the parties and considering the evidence available on record gave its finding on the issues framed afresh and decreed the suit of the plaintiff. Being aggrieved by the judgment and decree of the Trial Court, the defendant has filed this appeal.
10. I have heard the learned Counsel for the parties.
11. Though several grounds are urged by the appellant in his appeal memo, at the time of arguments, he mainly contends that the judgment and decree of the Trial Court are to be set aside only on the ground that the Court has framed the issues behind the back of the parties and has pronounced the judgment without giving an opportunity for the parties to lead evidence on the additional issues or at least to address the arguments on the additional issues. Therefore, he requests this Court to set aside the judgment and decree of the Trial Court.
12. Per contra, Sri B.C. Rajeev, learned Counsel appearing for the respondent relying upon the judgment of the Supreme Court in the case of Nagubai Animal and Ors. v. B. Shama Rao and Ors. contends that even if additional issues are framed by the Trial Court, if the parties lead evidence after understanding the pleadings and issues that arise in the case, the Court can proceed with the judgment and requests the Court to dismiss the appeal.
13. Having heard the learned Counsels for the appellant and the respondent, what is required to be considered by this Court in this appeal is:
Whether the Trial Court is justified in framing the additional issues during the course of its judgment and was further right in disposing of the suit without hearing the learned Counsel for the parties on the additional issues?
14. The facts of this case are not in dispute. From a perusal of the order sheet of the Trial Court, it is clear that the case was reserved for judgment after hearing the learned Counsel for the parties. The learned Judge while writing the judgment noticed that the issues framed by his predecessor were not based on the pleadings of the parties. Under Order 14 of the CPC the Court can at any point of time recast the issues if it is of the opinion that the issues framed by the Court are required to be changed. There is no quarrel over this legal position. But the only point to be considered by this Court in this appeal is:
Whether it was proper on the part of the Trial Court to pronounce the judgment by framing the additional issues on its own without giving an opportunity for the parties?
15. The case of Nagubai has no application in the facts and circumstances of this case. In the said case though the question of lis pendens was not an issue in the suit, the parties addressed their arguments on the said question. The Trial Court after hearing the learned Counsels for both the parties even though an issue had not been framed had given its finding on the said point. In such circumstances, the Hon'ble Supreme Court held that even though there were no issues and if the parties have let in evidence after understanding their pleadings and their case, the Court is at liberty to give findings on the additional issues also. But in the instant case, the additional issues framed by the Court during the course of the judgment are altogether different and distinct from the issues framed at the first instance. In such circumstances, if the Court was of the opinion that issues have to be recast and that the additional issues were to be framed, it was for the Court to frame issues and give an opportunity to both the parties. If the parties are willing to let in further evidence, an opportunity should be given to such party to lead their evidence. If both the parties are not willing to lead further evidence; after hearing the learned Counsel for the parties on the additional issues could have disposed of the suit on merits.
16. Based on the issues framed by the Court, the parties may lead evidence. Whenever additional issues are framed by a Court at the stage of judgment, it is the duty of the Court to hear the parties on additional issues and to proceed further in the matter. No Court is expected to proceed for judgment without giving an opportunity to the parties as it amounts to infringement of principles of natural justice.
17. But unfortunately such procedure is not followed in the instant case. Therefore, this Court is of the opinion that the judgment and decree of the Trial Court are required to be set aside and the matter requires to be reconsidered by the Court by giving an opportunity to both the parties to lead evidence if they desire to do so or to hear the learned Counsel for the parties on the additional issues.
18. In the result, the appeal is allowed. The judgment and decree of the Trial Court are hereby set aside. The matter is remitted back to the Trial Court for fresh consideration in the light of the observations made in the previous paragraph. Considering that the suit is of the year 1996, the Trial Court is directed to dispose of the suit within six months from today.
Both the parties are directed to appear before the Trial Court on 18-8-2006 and they are not entitled to separate notice. The parties to bear their own costs.
The registry is directed to send the record forthwith.