Karnataka High Court
Smt. Sanjeevamma And Ors. vs G. Krishna And Ors. on 21 February, 2004
Equivalent citations: AIR2004KANT338, ILR2004KAR2338, 2004(5)KARLJ112, AIR 2004 KARNATAKA 338, 2004 AIR - KANT. H. C. R. 1829, (2004) ILR (KANT) (2) 2338, (2004) 3 CIVILCOURTC 316, (2004) 5 KANT LJ 112, (2004) 3 RECCIVR 844, (2004) 3 ICC 368, (2004) 3 KCCR 1683, (2004) 3 CIVLJ 417, (2005) 1 CURCC 254
Author: K.L. Manjunath
Bench: K.L. Manjunath
ORDER 41 - APPEALS FROM ORIGINAL DECREES - Whether the Appellate Court can dismiss the appeal as infructuous on the ground that the decree of the Trial Court has been executed - HELD - Appellate Court has no power to dismiss the appeal as infructuous on the ground that the decree of the Trial Court has already been executed - Appellate Court has to decide the appeal on merits, keeping in mind the provisions of Section 144 CPC. (B) CIVIL PROCEDURE CODE, 1908 - SECTION 144 -APPLICATION FOR RESTITUTION UNDER - If the order or a Decree is reversed in any appeal, revision or in any other proceedings, the party is entitled to the benefit of restitution or redelivery of the property -Under Section 144 CPC - ON FACTS, HELD - The Appellate without considering the provisions of Section 144 of CPC and the case of the Appellants on merits, has dismissed the appeal as having become infructuous - The procedure followed by the Appellate Court is bad in law - Matter is remitted back to the Appellate Court. Allowing the Appeal, the Court Held: It is not in dispute that after granting a decree by the Trial Court, respondents by filing an Execution have removed the construction put up by the Appellants defendants on MNOP portion. It is no doubt true that the decree has been executed, but the question is whether the Appellate Court on the said ground can dismiss the appeal of the appellants, without considering the case of the appellants on merits. Appellate Court without considering the provisions of Section 144 of CPC has disposed of the appeal. If the Appellate Court on merits had come to the conclusion that the Judgment and decree granted by the Trial Court shall require to be set aside, in such, an event, Appellants were entitled to invoke the provisions of Section 144 of CPC and request the Court for Restitution. The Appellate Court without considering the provisions of Section 144 of CPC and the case of the Appellants on merits, has dismissed the appeals having become infructuous. Therefore this Court is of the opinion that the procedure followed by the Appellate Court as bad in law and requires to be set aside. JUDGMENT K.L. Manjunath, J.
1. Appellant were the defendants in O.S No. 209/94 on the file of the Prl Munsiff, Hospet. Respondent/Plaintiffs filed the said suit to declare the suit property as a public road and to direct the defendants to remove the encroachment made by them marked as ABCD in the plaint sketch while granting a decree of mandatory injunction. According to the plaint averments, the residential house of the plaintiff are situated on either side of the suit property. Suit property is marked as MNOP in the suit sketch. According to them, the area ear-marked as MNOP is the only ingress and aggress for the plaintiffs to reach their houses from the road. According to them, the portion marked as MNOP is measuring east-west 15' and North South 160' contending that the said passage is used by them for the last 30 years and that there is no other way to reach the road from their houses and also on the ground that defendants high-handedly have erected huts on the north-eastern side of the passage and due to erection of such huts width of the passage has been reduced from 15' to 5', plaintiffs filed the suit for the above said relief.
2. Defendants though appeared, 1st defendant alone filed the written statement. According to him, portion marked as MNOP is not a passage or road and that plaintiffs have no right over the same. According to him, 1st defendant under registered sale deed dated 20.6.1968 purchased the same from one Ghouse Modeen and after purchasing the property defendant have put up a hut and are enjoying the remaining vacant land as absolute owner. According to him, defendants have left a small opening towards the west in order to reach the road and that the said open space is exclusively meant for use and occupation of the defendants and requested the Court to dismiss the suit.
3. Based on the above pleadings, following issues were framed by the Trial Court:
1. Whether the plaintiffs prove that the 'MNOP' portion shown in the plaint sketch is the public passage which has been used by them since more than 30 years?
2. Whether the plaintiffs prove that the defendant have illegally put up the construction at 'ABCD' portion on the suit passage?
3. Whether the defendant prove that the suit of the plaintiffs is untenable for not seeking the relief of declaration of their right as contented in para-13 of the written statement?
4. Whether the defendants prove that the suit is barred by time as contended in para-14 of the written statement?
5. What order or decree?
4. In support of their case, plaintiffs examined three witnesses as P.Ws -1 to 3 and they relied upon documents Exs.P-1 to 8. Counsel for the defendants retired from the case and defendants did not step, into the witness box. Trial Court, based on the appreciation of evidence let in by the plaintiffs, decreed the suit of the plaintiffs on 24.10.1997.
5. Being aggrieved by the judgment and decree of the Trial Court, appellants herein filed an appeal before the Civil Judge (Sr.Dn.), Hospet in R.A.No. 15/1998. In the appeal, they also filed an application under Order-41 Rule-27 of CPC to lead additional evidence. Appellate Court formulated the following points for its consideration:
1. Whether the application I.A No. 2 is fit to be allowed ?
2. Whether the judgment and decree of the Trial Court needs interference by this Court?
6. When the matter was taken up for hearing, a submission was made by the counsel for the respondents/plaintiffs stating that decree granted by the Trial Court in favour of the plaintiffs has been executed by the plaintiffs and he submitted that the appeal has become in fructuous. Therefore, he requested the Court to dismiss the appeal as having become infructuous . Based on the above said submission, Appellate Court dismissed the appeal as well as the application filed by the appellant under Order-41 Rule-27 of CPC. Being aggrieved by the concurrent findings of both the Courts below, present appeal is filed by the defendants.
7. Though the matter is listed for admission, with the consent of the counsel for the parties, I have heard the appeal on merits.
8. The only substantial question of law that arises for consideration of this Court is whether the Appellate Court was justified in dismissing the appeal on the ground that the decree granted by the Trial Court has been executed ?
9. The facts of this case are not in dispute. It is not in dispute that after granting a decree by the Trial Court, respondents by filing an execution have removed the construction put up by the appellants/ defendants on MNOP portion. It is no doubt true that the decree has been executed, but the question is whether the appellate Court on the said ground can dismiss the appeal of the appellants, without considering the case of the appellants on merits. Appellate Court without considering the provisions of Section 144 of CPC has disposed of the appeal. If the Appellate Court on merits had come to the conclusion that the judgment and decree granted by the Trial Court shall require to be set aside, in such an event, Appellate Court had every power to allow the appeal and dismiss the suit of the plaintiffs by reversing the judgment and decree of the Trial Court . In such an event, appellants were entitled to invoke the provisions of Section 144 of CPC and request the Court for restitution. But in the instant case, Appellate Court, without considering the provisions of Section 144 of CPC and the case of the appellants on merit, has dismissed the appeal as having become infructuous. Therefore, this Court is of the opinion that the procedure followed by the Appellate Court as bad in law and requires to be set aside.
10. In the result, this appeal is allowed. Judgment and decree passed by the Civil Judge (Sr.Dn), Hospet in R.A.15/98 dated 4.10.2001 are hereby set aside. Matter is remitted back to the Appellate Court for fresh consideration. Appellate Court is also directed to consider the appeal on merits in accordance with law along with I.A.II filed by the appellants.
Parties to bear their costs.