Karnataka High Court
Sri A. Ankanna vs The Commissioner on 3 July, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3rd DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL NO.1520 OF 2011
C/W RFA NO.1521 OF 2011
RFA NO.1520/2011
BETWEEN:
1. SRI.A.ANKANNA
S/O LATE ABBAIAH @
MUNISWAMY
AGE: 66 YEARS
PRESENTLY R/A NO.1636
26TH MAIN, 2ND SECTOR
HSR LAYOUT
BANGALORE - 560 102
2. SRI.A.KRISHNA
S/O LATE ABBAIAH @
MUNISWAMY
AGE: 60 YEARS
R/A NO.78, CHIKKABANASWADI
BANGALORE - 560 033
3. SRI.A.M.RAJASHEKHAR
S/O LATE ABBAIAH @
MUNISWAMY
AGE: 55 YEARS
PRESENTLY R/A NO.226
3RD CROSS, EAST OF NGEF
LAYOUT, KASTURI NAGAR
BANGALORE - 560 043 ... APPELLANTS
(BY SRI.G.PAPI REDDY, ADVOCATE)
2
AND:
1. THE COMMISSIONER
BANGALORE DEVELOPMENT
AUTHORITY (BDA)
A STATUTORY AUTHORITY
CONSTTUTED UNDER THE
BANGALORE DEVELOPMENT
AUTHORITY ACT, 1976
HAVING ITS OFFICE AT
T.CHOWDAIAH ROAD
KUMARAPARK WEST
BANGALROE - 560 020
2. SMT.SARASWATHI
W/O R.RAJA
AGE: 55 YEARS
R/A NO.65, SRIRAMPURA
BANGLAORE - 560 021
3. SRI.SHIVAKUMAR K.M.K.
S/O K.MUDDUKRISHNA
AGE: 42 YEARS
R/A NO.1432, 2ND MAIN
KACHARAKANAHALLI
KALYAN NAGAR POST
BANGLAORE - 560 084
4. SMT.B.S.MOHAN KUMARI
D/O H.B.SIDYA NAIK
AGE: 36 YEARS
R/A NO.2034, 26TH CROSS
K.R.ROAD, BANASHANKARI 2ND STAGE
BANGALORE - 560 070
5. SRI.S.UDAYA SHANKAR
S/O T.SHANMUGAM
AGE: 47 YEARS
R/A NO.713, 9TH CROSS
10TH 'A' MAIN ROAD
INDIRANAGAR 2ND STAGE
BANGALORE - 560 038
3
6. SMT.A.MANJULA
W/O RANGANATHAN
AGE: 52 YEARS
R/A NO.2286, 3RD STAGE
MIG, YELAHANKA NEW TOWN
BANGALORE - 560 064
7. SRI.S.FRANCIS
S/O A.M.SUSAINATHAN
AGE: 54 YEARS
NO.79, 8TH CROSS
OLD PENSION MOHALLA
MYSORE ROAD
BANGALROE - 560 018
8. SRI.H.T.FAZILALI
S/O M.T.ALI
AGE: 56 YEARS
R/A NO.1620, 'B' TYPE
50, BDA EXTENSION
3RD STAGE, AUSTIN TOWN
BANGALORE - 560 047
9. SMT.SAISUDHA
RAMAKRISHNAN
AGE: 41 YEARS
W/O K.RAMAKRISHNAN
R/A NO.152, 2ND MAIN
SARASWATHIPURAM
ULSOOR, BANGALORE - 560 008
10.SRI.A.G.RAJANIKANT
S/O A.GOPALRAO
AGE: 53 YEARS
R/A NO.52/5
21ST MAIN ROAD
VIJAYANAGAR
BANGALORE - 560 040
11.SMT.K.N.NAGARATHNAMMA
W/O P.RAJASHEKARAIAH
4
AGE: 61 YEARS
R/A 2ND CROSS
OPP. YELLAMMA DASAPPA
CINEMA THEATRE
KANAKAPURA - 562 117
12.SRI.K.SAMPATH
S/O KRISHNA
AGE: 57 YEARS
R/A NO.4060
19TH 'A' MAIN ROAD
HAL 2ND STAGE
BANGALORE - 560 008
13.SRI.S.PUTTASWAMY
AGE: 70 YEARS
R/A NO.28, A-TYPE
A-3, BDA FLATS, DOMLUR
BANGALORE - 560 071
14.SRI.S.JAGADISH KUMAR
S/O SHIVAKUMAR G.
AGE: 50 YEARS
R/A NO.69, 1ST FLOOR
4TH MAIN ROAD, 16TH CROSS
MALLESWARAM EAST
BANGALORE - 560 055
15.SYED SAOOD
S/O LATE S.A.BASHEER
AGE: 43 YEARS
R/A FLAT NO.002
HEBRON APARTMENTS
BENSON TOWN
BANGALORE - 560 046
16.SRI.MODI ZAFARULLAH
S/O LATE MODI ZIAULLAH
AGE: 35 YEARS
R/A NO.62, MILLERS ROAD
BENSON TOWN
BANGALORE - 560 046
5
17.SMT.SADIYA MODI
W/O SRI.SYED SAOOD
AGE: 37 YEARS
R/A FLAT NO.002
HEBRON APARTMENTS
BENSON TOWN
BANGALORE - 560 046
(AMENDED V/O DT. 24.6.13) ... RESPONDENTS
(SRI.K.M.PRAKASH, ADVOCATE FOR C/R1
SRI.T.D.MUTHANNA, ADV. FOR R15 TO R17)
RFA NO.1521/2011
BETWEEN:
1. SRI.A.ANKANNA
S/O LATE ABBAIAH @
MUNISWAMY, AGE: 66 YEARS
PRESENTLY R/A NO.1636
26TH MAIN, 2ND SECTOR
HSR LAYOUT
BANGALORE - 560 102
2. SRI.A.KRISHNA
S/O LATE ABBAIAH @
MUNISWAMY
AGE: 60 YEARS
R/A NO.78, CHIKKABANASWADI
BANGALORE - 560 033
3. SRI.A.M.RAJASHEKHAR
S/O LATE ABBAIAH @
MUNISWAMY, AGE: 55 YEARS
PRESENTLY R/A NO.226
3RD CROSS, EAST OF NGEF
LAYOUT, KASTURI NAGAR
BANGALORE - 560 043 ... APPELLANTS
(BY SRI.G.PAPI REDDY, ADVOCATE)
6
AND:
1. SMT.PACHHAYAMMA
W/O LATE KRISHNAPPA MUDALIAR
AGE: 60 YEARS
2. SRI.B.R.JAYABALAN
S/O LATE KRISHNAPPA MUDALIAR
AGE: 58 YEARS
3. SRI.B.K.CHANDRASHEKAR
S/O LATE KRISHNAPPA MUDALIAR
AGE: 48 YEARS
4. SRI.VIJAYAKUMAR
S/O LATE KRISHNAPPA MUDALIAR
AGE: 45 YEARS
5. SRI.B.K.SUBRAMANI
S/O LATE KRISHNAPPA MUDALIAR
AGE: 42 YEARS
6. SMT.B.K.VIJALAKSHMI
D/O LATE KRISHNAPPA MUDALIAR
AGE: 53 YEARS
7. SMT.LAKSHMI
D/O LATE KRISHNAPPA MUDALIAR
AGE: 50 YEARS
R1 TO R7 ARE R/A OLD
BYYAPPANAHALLI
KRISHNARAJAPURAM HOBLI
M.S.NAGAR POST
BANGALORE - 560 033
8. SRI.B.K.SHANMUGHAM
S/O LATE KRISHNAPPA MUDALIAR
AGE: 60 YEARS
7
9. SMT.VIJAYA LAKSHMI
W/O LATE B.K.RAJAGOPAL
AGE: 55 YEARS
10. SRI.R.MAHESH
S/O LATE B.K.RAJAGOPAL
AGE: 35 YEARS
11. SRI.R.THILAK
S/O LATE B.K.RAJAGOPAL
AGE: 30 YEARS
R8 TO R11 ARE R/A NEW
BYAPPANAHALLI
INDIRANAGAR POST
BANGALORE - 560 038
12. CHARISHMA BUILDERS PVT. LTD.
A PVT. LTD. COMPANY
REGD. UNDER PROVISIONS OF
CHAPTER IX OF THE COMPANIES
ACE, 1956, HAVING ITS REGD.
OFFICE AT NO.3, 'FRIENDS
APARTMENTS', SOUTH END ROAD
SIRUR PARK EXTENSION
SHESHADRIPURAM
BANGALORE - 560 020
REP BY ITS DIRECTOR
D.C.CHAJJER
S/O HANSRAJ CHAJJER ... RESPONDENTS
(SRI.LOKESH MALAVALLI, ADV. FOR R2 TO R11
SRI.R.B.SADASIVAPPA, ADV. FOR R12)
---
These Regular First Appeals are filed under Section
96 of CPC against the judgement and decree dated
1.6.2011 passed in O.S.No.15081/2001 on the file of the
XXVIII Addl. City Civil Judge, Mayo Hall, Bangalore
dismissing the suit for additional issue No.1.
8
These Appeals coming on for Orders this day, the
Court delivered the following:-
JUDGMENT
These appeals are considered and decided together at the stage of considering the application in IA No.1/2011 for temporary injunction filed by the appellants.
2. These appeals arise out of a common judgment where the suits filed by the very same plaintiffs were clubbed together and were tried together and when the case was reserved for judgment, the Court has thought it fit to frame an additional issue to the following effect:
"Whether the defendant No.2 proves that suit is barred under Section 64 of the BDA Act for non-issuance of statutory notice?"
The Court below has thought it fit to address only the additional issue while ignoring other issues and the evidence tendered on behalf of the parties. It is also pertinent to note that the additional issue was relevant only in so far as O.S.No.15081/2011 was concerned and 9 the said issue did not arise in the connected suit. The Court below has proceeded to pronounce the judgment while holding the said issue in the affirmative and has dismissed both the suits.
3. The learned counsel for the appellants would contend that the parties, especially the plaintiffs, were not heard on the additional issue that was framed. The other respondents, though had raised contentions which were also required to be addressed with reference to the issues that were framed, none of them has been considered by the Trial Court.
4. Only a finding that there was non-compliance with Section 64 of the Bangalore Development Authority Act has prompted the Court below to dismiss both the suits. This circumstance having been highlighted when the application for temporary injunction was posted before the Court for hearing, it is further contended by the learned counsel for respondent No.15 that it is pursuant 10 to the dismissal of the suit that the Bangalore Development Authority Act has thought it fit to allot one of the sites concerned in favour of the vendor of respondent No.15 and he has also started constructing at this point of time and the construction has come up to lintel level and it is at that point of time that the present applications are filed.
5. Notwithstanding any such action taken by the Bangalore Development Authority Act, since this Court would, on the face of it, find that the Court below has committed an error in proceeding to decide both the suits on the additional issue which was not pertinent to one of the suits and the fact that the parties have not been heard on the issue, especially the plaintiffs, would indicate that the proceedings have been short-circuited and this has led to a miscarriage of justice. Therefore, if the Bangalore Development Authority Act has allotted the site in favour of the vendor of respondent No.15 and if he has infact constructed on the property, it would not be possible in 11 the present circumstances, for such respondent to claim equity. As this Court is inclined to allow the appeals on these summary findings and remand the matter for fresh consideration on all issues, and the additional issue as well, after hearing the parties, it would also be necessary to note that any consequential action taken by any of the parties including the Bangalore Development Authority Act pursuant to the impugned judgment would stand nullified and the parties would be reverted to their positions as they stood as on the date of dismissal of the suit. This is a natural consequence which would follow. With this observation, the appeals are summarily allowed. Judgments of the Court below are set aside. The matters shall be heard in accordance with law in the light of the observations made hereinabove. Having regard to the fact that the suit is more than a dozen years old, it is further necessary that the Court below shall give the matters priority and shall expedite the consideration of the case, especially since the trial had been completed, there should be no difficulty in deciding the suit, early. 12
With this observation, the appeals stand allowed. Judgments of the Court below are set aside. The parties shall, without any further notice, appear before the Trial Court on 15.7.2013. The Office is directed to remit the record forthwith. The plaintiffs are entitled to refund of the Court Fee paid on the appeals under Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1959.
Sd/-
JUDGE RV