Karnataka High Court
M/S Fortune Five Hydel Projects Pvt Ltd vs Ramesh S/O Revanasiddappa Hitnalli And ... on 7 April, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MSA NO.200004/2021 (LA)
BETWEEN:
M/S FORTUNE FIVE HYDEL
PROJECTS PVT. LTD.
SITE OFFICE H.NO.1874, WARD NO.13,
INGALESHWAR ROAD, B BAGEWADI
DIST. VIJAYAPURA - 586203.
REP. BY ITS MANAGER. ..APPELLANT
(BY SRI D P AMBEKAR, ADV.)
AND:
01. RAMESH S/O RREVANASIDDAPPA HITNALLI
AGE: 48 YEARS, OCC: AGRICULTURE
R/O INGALESHWAR, TQ. B.BAGEWADI
DIST. VIJAYAPURA - 586203.
02. SHARIF
AGE: 58 YEARS, OCC: AREA MANAGER &
PROJECT ENGINEER
R/O MADAR BUILDING, OPP. BASAVESHWAR ARTS
& COMMERCE COLLEGE
NEAR VIMOCHANA HOTEL
VIJAYAPURA ROAD
B.BAGEWADI, DIST. VIJAYAPURA - 586203.
03. MUSTAFA
AGE: 53 YEARS, OCC: SKILLED WORKER
R/O MADAR BUILDING, OPP. BASAVESHWAR ARTS
& COMMERCE COLLEGE
2
NEAR VIMOCHANA HOTEL
VIJAYAPURA ROAD
B.BAGEWADI, DIST. VIJAYAPURA - 586203. ... RESPONDENTS
(BY PRAVEEN KUMAR RAIKOTE, ADV. FOR R.1,
VO DATED 11.3.2022 NOTICE AGAINST R.2 & 3
IS DISPENSED WITH)
This Appeal is filed under Section 104 read with Order 43
RUle 1(u) CPC against the judgment and decree dated
28.01.2020 passed in R.A.No.35/2016 on the file of the
Additional Senior Civil Judge, Basavanabagewadi, allowing and
setting-aside the judgment an ddecree dated 05.08.2016
passed in O.S.No.225/2013 on the file of the Civil Judge and
JMFC, Basavana bagewadi remanding the matter to the trial
Court for fresh trial and disposal accordance to law.
This appeal coming on for admission, this day, the Court
delivered the following:-
JUDGMENT
The appellant in this case has questioned the order dated 28.01.2020 passed in R.A.35/2016 on the file of the Additional Senior Civil Judge, Basavana Bagewadi. In terms of the impugned order, the appellate judge has set- aside the order passed by the trial Court which was passed on an application I.A. VIII, under Order VII Rule 11(d) CPC. In terms of the said order passed on the said application, the trial Judge held that the suit is not maintainable in view of the bar contained under Section 3 145 of Indian Electricity Act, 2003. The appellate Court after considering the provision of Section 145 of Indian Electricity Act has come to the conclusion Section 145 is not a bar to institute a suit for injunction before the Civil Judge. The bar is only in respect of matters covered under Sections 125 and 126 of the Indian Electricity Act. While allowing the said appeal, learned appellate Judge has also referred to Section 20A of the Specific Relief Act and has given a finding in para.28 to the effect that bar in Section 20A is also not applicable.
2. Learned counsel for the appellant would submit that the impugned order is erroneous inasmuch as the defence under Section 20A of the Specific Relief Act was not raised in an application under Order VII Rule 11d CPC and that being the position, the appellate court could not have held that the suit is maintainable despite the bar contained under Section 20A of the Specific Relief Act. 4
3. Whether the suit is maintainable in view of Section 20A of the Specific Relief Act is to be adjudicated by the trial Court after recording evidence. Thus, without expressing any opinion on the implication of Section 20A of the Specific Relief Act on the suit, the observations made in paragraph 28 of the impugned order is set-aside. However, the remaining portion of the order is sustained and the trial Court shall decide the suit in accordance with law without being influenced by any observations made in respect of the contentions under Section 20A of the Specific Relief Act.
With these observations, the appeal is disposed of.
Sd/-
JUDGE brn