Karnataka High Court
Hanamanthgouda S/O Mallanagouda Patil vs Shantgouda S/O Mallanagouda Patil And ... on 19 August, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
REGULAR SECOND APPEAL No.200043/2016
Between:
Hanamanthgouda
S/o Mallanagouda Patil
Aged about 55 years
Occ : Agriculture
R/o MIG-II No.18,
Ashram Road,
Solapur Road,
Vijayapur - 586 103.
... Appellant
(By Sri. Suresh Navalgund, Adv. for
Sri.Ameetkumar Deshpande, Adv. )
And:
1. Shantgouda
S/o Mallanagouda Patil
Aged about 54 Years
Occ : Agriculture
R/o Thalabawadi,
Vijayapur - 586 103.
2. Smt.Lakshmibai
W/o Mahalingappa Kolligudd
2
Aged about 46 years
Occ : household work
R/o Near Maruti Mandir
Mahalingpur, Tq.Mudhol - 587 312.
3. Smt.Channawwa
D/o Drakshayini
W/o Aravind Patil
Age : 44 Years
Occ : Household work
R/o 1st Floor, H.No.11,
4th Cross, Sadguru
Ashram Road,
Sanjaynagar
Bangalore - 560 094.
4. Chandrashekhar
S/o Shankargouda Patil
Aged about 42 years
Occ : Private work
R/o MIG-II, H.NO.156,
Adarsh Nagar,
Solapur Road,
Vijayapur - 586 103.
... Respondents
(By Sri.Venkatesh C. Mallabadi, Adv. for R1 to R3
Notice to R4 is served and unrepresented )
This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 18.12.2015
passed in R.A.No.198/2011 on the file of the I Addl. District
Judge Vijayapur, dismissing the appeal and confirming the
judgment and decree dated 30.11.2011 passed in
O.S.No.45/2005 on the file of II Addl. Senior Civil Judge at
Bijapur.
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This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
I have heard arguments of the learned counsel for the appellant Sri.Suresh Navalgund. Learned counsel for respondents no.1 to 3 is present. Respondent no.4 who is the actually contesting respondent, though served, remained absent, unrepresented. After going through the materials on record, the following substantial question of law arises for consideration of this Court.
1) Whether the First Appellate Court has committed any serious legal error in making observations in the body of the judgment as against the findings given by it and the final order passed by it in dismissing the appeal ?
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2. As the respondent no.4 remained absent, heard the respective learned counsels present on the substantial question of law and the following order is passed.
3. It is evident from the records that the appellant has filed a P & S.C. proceedings seeking for probate of a will executed by one Smt.Gangabai - his mother in P & S.C.No.3/2000. The said probate proceedings ended, in granting the probate in favour of the appellant.
4. Subsequently, respondent no.4 herein has filed an application in Misc.No.14/2001 for revocation of the said probate granted in favour of the appellant before the District Court, Vijayapur. The District Judge Vijayapur has infact vide Order dated : 26.06.2003 revoked the said probate issued in favour of the appellant in P & S.C. No.3/2000 5 dated : 12.02.2001. However, both the parties have requested the Court to transfer the said proceedings and to treat the same as suit for the purpose of agitating further with regard to the rights acquired by the parties under the will and as well as permit the 4th respondent to agitate his grievance in the suit. By virtue of said memo, the District Judge has virtually referred the matter to the Civil Court directing the parties to agitate the same before the civil Court.
5. After such transfer, II Addl. Senior Civil Judge Vijayapur has registered the said proceedings in O.S.No.45/2005 providing opportunity to the appellant treating him as plaintiff to amend the petition as if a plaint and also provided opportunity to the respondent no.4 to file his written statement in the said suit. After framing of the Issues and 6 giving finding, the trial Court in fact has granted the decree in favour of the plaintiff ( appellant herein ) declaring that the plaintiff is the owner of the suit schedule house bearing No.MIG-2 and sy.no.287/1 of village Halagani on the basis of the Will.
6. Being aggrieved by the said judgment and decree passed by the trial Court, 4th respondent has preferred an appeal before the I Addl. District Judge, Vijayapur in R.A.No.198/2011. The First Appellate Court after reconsideration of the materials on record has dismissed the appeal, by formulating the points for consideration and answering the said points in the Negative. However, the First Appellate Court during the course of its judgment made an observation that the judgment and decree passed by the trial Court is without jurisdiction and totally not maintainable and the 7 same is null and void and therefore no appeal could have been preferred against the said judgement and decree and on that ground the appeal came to be dismissed and as against the said order, present Regular Second Appeal is preferred. It is also worth to note here that the respondent herein did not file any appeal against the judgment and decree of the trial Court and the same has reached finality so far as respondent is concerned.
7. In order to appreciate the substantial question of law framed by this Court, it is just and necessary to bear in mind the observation made by the First Appellate Court in the body of the judgment. The First Appellate Court has made an observation that the District Judge had no jurisdiction to convert or direct the trial Court to register a civil suit on the basis of a disposed of 8 matter on its file. The District Judge has already revoked the probate granted in favour of the appellant herein and he has no jurisdiction to refer the parties to the civil Court on the same lis. The Appellate Court has considered that on such reference made by the District Court, the Civil Court would not have entertained the suit and granted any decree. Therefore, the trial Court had no jurisdiction to entertain the suit and therefore the said judgement is null and void. Of course, the Appellate Court to some extent had a right in holding that there is a serious procedural irregularity. The Appellate Court on the other hand would have seen as to any prejudice has been caused to any of the parties before observing that the decree is null and void. In my considered opinion, the decree of the trial Court cannot be said to be null and void for want of any jurisdiction, even 9 excluding the probate proceedings and revocation proceedings. If the parties have approached the Court for declaration of their title and for other remedies and if it is contested, whether that Court could have granted such decree in favour of the parties is the real question that should have been looked into by the First Appellate Court. Even accepting that there is a revocation of the probate proceedings the law provides the parties to approach the Civil Court for the purpose of declaration and other remedies as provided under the Specific Relief Act. Mere granting or revocation of the probate proceedings will not in any way curtail the rights of the parties in approaching the Civil Court. Of course, the First Appellate Court was right in holding that the District Judge had no jurisdiction to refer the parties in the same proceedings to the trial Court to register a suit. 10 However, though it has not been happily worded by the District Judge and it virtually amounts to a direction to the parties to approach civil Court for to agitate their rights. Instead of filing fresh plaint before the trial Court, the parties have approached with the same pleadings as pleaded in the probate proceedings. The Civil Court in fact has allowed the parties to file fresh plaint to treat it as a suit as if a declaratory suit and provided opportunity to the defendant no.4 to file his written statement and also other procedures have been followed by the trial Court strictly in accordance with the law to be followed in a duly constituted suit. Therefore, though there is some procedural irregularity occurred while referring the matter to Civil Court by the learned District Judge, but the Appellate Court has to visualize whether by virtue of that reference and registering a suit by the Civil Court in any 11 manner prejudiced any of the parties to the proceedings. If no illegality committed by the trial Court or no prejudice has been occurred before the trial Court to any of the parties mere irregularity itself would not enure to the benefit of the First Appellate Court to make such observation stating that the judgment of the trial Court is null and void. It is ultimately during the course of hearing appeal, the main object of the Courts should be to see that the dispute between the parties as far as possible is permanently resolved and not to give any scope for further litigation. Therefore, I am of the opinion that, the observation made by the District Judge stating that the trial Court had absolutely no jurisdiction and the judgment and decree of the trial Court is null and void was unwarranted and to that extent the Appellate Court has committed a serious legal error.
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8. As I have already narrated that the trial Court has treated the pleadings of the petitioner in the probate proceedings as plaint and the objections filed by the defendant no.4 in the probate proceedings as written statement and also provided opportunity to the parties to amend their pleadings to convert the suit into one for declaration which clearly indicates that the Civil Court has properly exercised its jurisdiction by treating the pleadings of the parties as if plaint and the objections of the respondent as if written statement and thereafter also provided opportunity to the parties to file independent further pleadings and written statement, which indicates that for all practical purposes, the constitution of the suit for its registration have been complied. Therefore, no act of the Civil Court can be found fault, in registering the case and dealing with the matter. It is also worth to 13 note here that the trial Court never proceeded on the probate proceedings itself treating it as P & S.C., proceedings and granted the decree. But, it has treated all the pleadings of the parties and thereafter registered a case as fully constituted suit and thereafter disposed off the matter in accordance with the law. When such proceedings have been taken place, in accordance with the Code of Civil Procedure and the Court has got jurisdiction to grant a decree of declaration, the Appellate Court should not have said that the trial Court had no jurisdiction. Under the above facts and circumstances, I find sufficient force in the case of the appellant, in order to expunge the said observation made by the First Appellate Court particularly with reference to the jurisdiction of the trial Court and as well as the judgment passed by the trial Court.
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9. The First Appellate Court has further gone in committing a legal error in dismissing the appeal. If at all the Appellate Court has arrived at a conclusion that the judgment of the trial Court is null and void and without jurisdiction, it should have allowed the appeal and set aside the judgment and decree, instead, it dismissed the appeal. It is clear that the observations made in the body of the judgment cannot at any stretch of imagination take place of a decree. It is ultimately the decree passed by the Court i.e. dismissal of the appeal merges with the decree granted by the trial Court. In that manner also, the Appellate Court has committed error which requires to be rectified by this Court. Accordingly, the substantial question of law is answered in the affirmative. In view of the above observations, following order is passed. 15
ORDER Regular Second Appeal is allowed.
The observations made by the First Appellate Court to the effect that the judgment and decree passed by II Addl. Senior Civil Judge, Vijaypur in O.S.No.45/2005 is without jurisdiction, illegal, unsustainable and the same is null and void, are hereby expunged.
However, the operative portion of the judgment of the Appellate Court dismissing the appeal is upheld.
Consequently, the judgment and decree passed by II Addl. Senior Civil Judge Vijayapur in O.S.No.45/2005 is hereby confirmed.
Sd/-
JUDGE SGS