Karnataka High Court
Smt. Rangamma vs The Chairman, Bangalore Development ... on 30 March, 2001
Equivalent citations: ILR2001KAR3722, 2001 AIR - KANT. H. C. R. 1393, 2001 AIHC 2982 (2002) 3 ICC 626, (2002) 3 ICC 626
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N. Kumar, J.
1. This is a plaintiff's appeal. Plaintiff has preferred the above appeal challenging the correctness and legality of the judgment and decree dated 18-6-19S6 passed in O.S. No. 5252 of 1980 by the learned 14th Additional City Civil Judge, Bangalore, rejecting the plaint under Order 7, Rule 11(d) of the Civil Procedure Code for want of notice under Section 64 of the Bangalore Development Authority Act.
2. Plaintiffs case is that her husband purchased the site bearing No. 4 formed in Sy. No, 5/2 of Jedahalli Village in the year 1959 under a registered sale deed dated 12-12-1958. It was a revenue site. Plaintiffs husband constructed the present existing building in the year 1971. In fact the Tahsildar P.U.C. issued a notice to the husband of the petitioner for unauthorised construction and for regularisation. Thereafter, the plaintiff's husband paid the necessary fine and got the construction regularised. Thereafter, khatha of the property was transferred in the name of the plaintiffs husband. Thereafter, the Corporation, City of Bangalore assessed the property to tax. Tax is paid. Then, the Corporation made a survey of the property and confirmed the property in the name of the husband of the plaintiff. The plaintiffs husband got electrical connection to the premises. Name of the plaintiff, her husband and her sons are included in the voters' list giving their address as the schedule property. The defendant has nothing to do with the said schedule property and it does not come within the limits of the BDA at all. However, the engineer of the defendant issued a notice to the plaintiff as if she is constructing the house now. Without notice issued to the plaintiff orders have been passed by the said engineer. Therefore, the said order passed by the engineer of the BDA is one without jurisdiction, null and void, not binding on the plaintiff. Therefore, she filed the above suit for a decree of permanent injunction restraining the defendant from demolishing the schedule property or from interfering with her peaceful possession and enjoyment of the suit schedule property.
3. The defendant-Bangalore Development Authority contested the suit by filing a detailed written statement. They denied all the allegations in the plaint. They denied the execution of the sale deed in the name of the plaintiff's husband, denied that the khatha of the property has been made out in his name, denied that he has been paying the taxes to the Corporation, denied any survey being conducted in respect of the schedule property and they have denied the documents produced by the plaintiff to substantiate their claim. It is their specific case that the schedule property is situated in Sy. No. 5 of Jedahalli Village which was notified by the then City Improvement Trust Board and the same has been acquired in accordance with law and possession of the entire Sy. No. 5 has been taken over by the City Improvement Trust Board. Thereafter, the engineering section of the CITB has formed sites and has allotted sites to the general public. The land was notified for the formation of Industrial Corridor, Magadi Road-Chord Road Layout. The plaintiff nor her husband have any right, title or interest over the suit schedule property. In fact the BDA served the plaintiffs husband with notices under Sections 264-A and 404 of the City of Bangalore Improvement Act on 19-4-1975 and 4-8-1975 respectively. Despite the notices the plaintiff's husband refused to remove the unauthorised structures. Challenging the aforesaid notices the plaintiffs husband had filed O.S. No. 1583 of 1975 on the file of the learned Munsiff and the suit came to be dismissed with costs on 15-12-1979. The plaintiff has suppressed the aforesaid proceedings and as such she has not come to the Court with clean hands. The suit is also barred by principles of res judicata and the same is also not maintainable under Order 2, Rule 2 of the Civil Procedure Code. There is not provision for regularisation of unauthorised construction which is put up on the land belonging to the BDA and which has vested with the BDA after the completion of the acquisition proceedings. Further, they specifically contended as the plaintiff has not issued any statutory notice under Section 64 of the Bangalore Development Authority Act which is mandatory before filing of a suit, the suit is liable to be dismissed for want of statutory notice. Therefore, they prayed for the dismissal of the suit.
4. On the aforesaid pleadings, the Court below framed the following issues.--
"1. Whether the plaintiff proves she is in lawful possession of the suit schedule property?
2. Whether there is interference by the defendant?
3. Whether the plaintiff is entitled to the perpetual injunction sought for?
4. Whether the suit is bad for want of a notice under Section 64 of the Bangalore Development Authority Act?
5. What decree or order?"
5. Plaintiff examined one L. Nanjappa, the son, as P.W. 1 and got marked Exhibits P. 1 to P. 25, documents to substantiate their claim. On behalf of the defendant one First Division Assistant attached to the Special Land Acquisition Officer, BDA, was examined as D.W. 1 and one Assistant Engineer, South, by name Shankarappa was examined as D.W. 2 to substantiate their defence and they also got marked Exhibits D. 1 to D. 7 in support of their defence. The learned Trial Judge on consideration of the oral and documentary evidence on record came to the conclusion that the plaintiff has no title to the suit schedule property, at best her possession would be that of a trespasser who has put up unauthorised construction and that she has no interest in the property and also that she is not in lawful possession of the property as on the date of filing of the suit. Therefore, in view of the aforesaid findings and in view of the finding that the defendants have established that the entire Sy. No. 5 of Jedahalli Village in which the suit schedule property is situated has been acquired in accordance with law no injunction could be granted against the BDA. However, while answering Issue No. 4 regarding maintainability of the suit for want of a statutory notice the Court held the suit is bad for want of a notice under Section 64 of the Bangalore Development Authority Act and accordingly it rejected the plaint under Order 7, Rule 11(d) of the Code of Civil Procedure for want of notice under Section 64 of the Bangalore Development Authority Act. Aggrieved by the said judgment and decree the plaintiff has preferred this appeal.
6. Sri Anil Kumar Shetty, learned Counsel appearing for the appellant, contended before me if the Court below were to reject the plaint under Order 7, Rule 11(d) of the Civil Procedure Code for want of a statutory notice under Section 64 of the BDA Act, it ought not to have recorded a finding on other issues as the same would be without jurisdiction. In view of this legal position even if the finding of the Court below on Issue No. 4 is held to be valid, the finding recorded on other issues are liable to be set aside as the plaintiff has always a right to institute another suit on the same cause of action after issuing the statutory notice and that right is now taken away and in any subsequent suit these findings recorded on other issues would operate as res judicata. In that view of the matter, learned Counsel submits the finding recorded by the learned Trial Judge on Issue Nos. 1 to 3 are liable to be set aside.
7. Sri Vishnu D. Bhat, learned Counsel appearing for the BDA, contended that the findings recorded by the learned Trial Judge on Issue Nos. 1 to 3 are based on evidence on record. In fact the plaintiffs husband had filed a suit for the same relief and after trial the said suit came to be dismissed with costs and in that view of the matter as the plaintiff has not come to the Court with clean hands and he has deliberately suppressed the earlier proceedings the judgment and decree of the Court below dismissing his suit is fully justified and does not call for any interference. He submitted that even though in the operative portion of the order the Trial Judge has said that the plaint is rejected under Order 7, Rule ll(d) of the Civil Procedure Code, as he has recorded a finding on all issues which cannot be found fault with, the appeal is liable to be dismissed in its entirety.
8. In view of the aforesaid contentions canvassed before me, the point that arise for my consideration in this regular first appeal is as under.--
(i) Whether the Court below was justified in recording a finding on Issue Nos. 1 to 3 on merits if it is rejecting the plaint under Order 7, Rule 11(d) of the Civil Procedure Code for want of a statutory notice under Section 64 of the Bangalore Development Authority Act?
9. Learned Counsel for the appellant in support of his contention that the findings recorded on Issue Nos. 1 to 3 by the learned trial Judge when he is rejecting the plaint under Order 7, Rule 11(d) of the Civil Procedure Code is one without jurisdiction relied on a judgment of the Supreme Court in the case of Gangappa Gurupadappa Gugwad v. Rachawwa and Ors., He further referred to a judgment of the Division Bench of this Court in the case of K.P. Arvind and Anr. v Government of Karnataka and Ors., In the aforesaid judgment of the Supreme Court while dealing with want of statutory notice under Section 80 of the Civil Procedure Code, the Supreme Court observed as under.--
"Where the plaintiff's cause cf action is against a Government and the plaint does not show that notice under Section 80 claiming relief was served in terms of the said section, it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by Section 80 is being claimed, it is the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under Section 80 was necessary. If the Court decides the various issues raised on the pleadings, the adjudication of the rights of the parties, apart from the question as to the applicability of Section 80 of the Code and absence of notice thereunder operates as res judicata in a subsequent suit where the identical questions for determination between the same parties. Shankarlal Patwari v. Hiralal Murarka, AIR 1950 PC 80 explained".
In the Division Bench judgment this Court again dealing with want of a notice under Section 80 of the Civil Procedure Code and for want of notice under Section 64 of the BDA Act has observed as under.--
"Held: Admittedly, the reliefs sought for by the plaintiffs related to the action taken by the Bangalore Development Authority and the State Government in exercise of their power under the Act.... As the suit was filed without issuing the notice as required by Section 64 of the Act and Section 80 of the Civil Procedure Code, it was bad in law, because service of notice as per Section 64 of the Act on the BDA and as per Section 80 of the Civil Procedure Code on the State Government, having regard to the reliefs sought for in the plaint was a condition precedent for instituting a suit of the nature in question... In the absence of such a notice, plaint cannot at all be entertained by a Court. Therefore, on the face of it, the plaint was barred by Section 64 of the Act and Section 80 of the Civil Procedure Code. Hence, the Trial Court ought to have rejected the plaint under Order 7, Rule ll(d) of the Civil Procedure Code. In that event, it would have been open to the plaintiffs to file a fresh suit on the same cause of action on complying with Section 64 of the Act and Section 80 of the Civil Procedure Code, whereas, the Trial Court has dismissed the suit which is not permissible in law".
10. In view of the law laid down in the aforesaid two decisions it is clear that when a suit is filed without notice as required by Section 64 of the BDA Act it was bad in law. In the absence of such a notice plaint cannot at all be entertained by a Court. Under these circumstances the Trial Court ought to have rejected the plaint under Order 7, Rule ll(d) of the Civil Procedure Code. In that event it would have been open to the plaintiff to file a fresh suit on the same cause of action on complying with Section 64 of the BDA Act. In such case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. If the Court records a finding on other issues also the same would be without jurisdiction because the Court had no jurisdiction to entertain the plaint in the absence of a statutory notice as contemplated under law.
11. In view of this legal position though the learned Trial Judge was right in rejecting the plaint under Order 7, Rule 11(d) of the Civil Procedure Code for want of a statutory notice under Section 64 of the BDA Act he was not right in recording a finding on merits on Issue Nos. 1 to 3. The said findings on Issue Nos. 1 to 3 would be one without jurisdiction as those findings are recorded in a suit of which the Court had no jurisdiction to entertain. Therefore, the findings on Issue Nos. 1 to 3 are liable to be set aside and accordingly it is set aside.
12. For the foregoing reasons, I pass the following order.--
Appeal is partly allowed. The findings recorded by the Trial Judge on Issue Nos. 1 to 3 are hereby set aside. Finding recorded on Issue No. 4 is upheld. As the plaint is rejected under Order 7, Rule 11(d) of the Civil Procedure Code for want of a statutory notice under Section 64 of the BDA Act, plaintiff would be at liberty to bring a suit after complying with the said legal requirement.
Parties to bear their own costs.