Karnataka High Court
Smt. Dakshayanamma vs Daivajna Credit Co-Operative Society on 21 August, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.1919 OF 2017
BETWEEN:
SMT. DAKSHAYANAMMA
W/O SRI.RAJASHEKARAIAH,
AGED ABOUT 78 YEARS
R/AT NO.67, 5TH MAIN ROAD,
CHAMARAJPET, BENGALURU-560 018
... APPELLANT
(BY SRI R.B. SADASIVAPPA, ADV.)
AND:
1. DAIVAJNA CREDIT CO-OPERATIVE SOCIETY
REGISTERED UNDER THE CO-OPERATIVE SOCIETIES ACT
NO.18, TANGAVELU COMPLEX
BASAVANNA TEMPLE ROAD,
ANCHEPET, BENGALURU-560 053
REP BY ITS PRESIDENT
SRI.B.V.GANAPATHI
2. BRUHATH BENGALURU MAHANAGARA PALIKE
HUDSON CIRCLE, BENGALURU-560 002
REPRESENTED BY ITS COMMISSIONER.
3. THE ASSISTANT EXECUTIVE ENGINEER
BURHATH BENGALURU MAHANAGARA PALIKE
BASAVANAGUDI SUB DIVISION
BENGALURU - 560 004.
... RESPONDENTS
(BY SRI K. NAGENDRA KUMAR, ADVOCATE FOR R1
SRI ARAVIND M. NEGLUR, ADVOCATE FOR R2 AND R3)
2
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC AGAINST THE ORDER DATED 11.10.2017 PASSED IN
O.S.NO.1202/2008 ON THE FILE OF THE LII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE
SUIT FOR DECLARATION AND INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 11.08.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-plaintiff under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC') for setting aside the impugned order dated 11.10.2017 passed by the LII Additional City Civil and Sessions Judge, Bengaluru in O.S.No.1202/2008 for having dismissed the suit on the preliminary issue.
2. Heard the arguments of learned counsel for the appellant and learned counsel for the respondents.
3. The ranks of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the plaintiff is that the plaintiff filed a suit for declaration and injunction claiming the 3 easementary right and also relief of permanent injunction restraining the defendant from putting up construction in Schedule 'B' Property which is conservancy lane but during the pendency of the suit, defendant No.1 constructed the building and the plaintiff sought for amendment and mandatory injunction to remove the construction during the pendency of the suit measuring 15 feet X 76 feet.
5. The plaintiff further contended that the plaintiff is the absolute owner of the Schedule 'A' Property bearing registration No.67, 5th Main, Sri Puttanna Chetty Road, Chamarajapet, Bangaluru-560 018, measuring East to West 32 Feet, North to South 40 feet (hereinafter referred to as Schedule 'A' Property) bounded on the :
East by: Indira Bai property, now purchased by first defendant West by: Manikchand North by: Mahadevamma's property South by: Giriyamma's property 4
6. The plaintiff further contended that a drainage and water pipes of the Schedule 'A' Property were run into conservancy lane where defendant No.1 claimed to put up the construction on the property bearing No.158/2, New Municipal No.66, situated at Puttanna Chetty Road, 5th Main Road, Chamarajapet, Corporation division No.49, Bangalore-560018, measuring East to West 15 feet, North to South 76 feet (hereinafter referred to as Schedule 'B' Property) bounded on the:
East by: Late Nanjundaiah's House
West by: Late Chandrasekharaiah's House,
(Plaintiff's house)
North by: Puttanna Chetty Road (5th Main Road) South by: Late Siddappa's House
7. If the defendant allowed to put up the construction, the easementary right of the plaintiff will be affected, therefore, prayed for decreeing the suit.
8. Per contra, defendant No.1 filed written statement containing that the defendant purchased the 5 property under the sale deed dated 20.02.2003. He has obtained the sanctioned plan from defendant No.2 and legally putting up the construction. There is no conservancy lane on the eastern side of the Schedule 'A' Property and denied the allegation made by the plaintiff and taken the contention that suit is not maintainable, since defendant No.1 is the Co-operative Society registered under the Karnataka Co-operative Societies Act, 1959 and defendant Nos.2 and 3 are BBMP and the plaintiff could have issued two months prior Notice to these defendants, therefore, suit is not maintainable. Hence, prayed for dismissing the suit.
9. The Trial Court based upon the pleadings framed several issues and one additional issue framed as preliminary issue which is as under:
"Whether the Suit is not maintainable in the absence of issuance of statutory Notice to Defendant-1, U/S. 125 of Karnataka Co- operative Society's Act, and also other 6 defendants regarding absence of Notice under Section 482 of KMC Act? "
10. The Trial Court has dismissed the suit for non compliance of Section 125 of the Karnataka Co-operative Societies Act and Section 482 of the Karnataka Municipal Corporation Act, 1976 (for short 'KMC Act') which is under challenge.
11. Learned counsel for the appellant-plaintiff has contended that the order passed by the Trial Court dismissing the suit on the preliminary issue is not correct. After framing of issues and adducing evidence, the Trial Court ought not to have dismissed the suit and further contended that the dispute between the appellant and respondent No.1 was civil dispute. There is no necessity for issuing any notice under Section 125 of the Co- operative Societies Act. Even under Section 482 of KMC Act is like Section 80 of the CPC, issuing notice can be dispensed with by the Trial Court. Therefore, prayed for allowing the appeal.
7
12. He further contended that if at all not complied the mandatory provisions, the plaint could not return back instead of dismissal. Hence, prayed for allowing the appeal.
13. Per contra, the learned counsel for the respondent No.1 has contended that issuing notice under Section 125 of Co-operative Societies Act is necessary and further contended that in the property purchased by the respondent, there is no conservancy lane on the western side of the property of the Society and on the eastern side of the Schedule 'A' property, there is no conservative lane as per the sale deeds. The claim of the plaintiff is false and supported the order passed by the Trial Court.
14. The learned counsel for respondent No.2 has contended that the notice under Section 482 of KMC Act is necessary as the order passed by the respondent No.2 for granting sanction plan as per the Bye laws of the KMC Act, 8 therefore, without issuing notice, suit is not maintainable, hence, prayed for rejecting the appeal.
15. Having heard the arguments and perused the records, the point that arises for my consideration are:
"Whether the notices under Section 125 of Co-operative Societies Act and Section 482 of KMC Act are mandatory prior to filing of the suit against them?"
16. Learned counsel for the appellant has relied upon the judgment of the Full Bench of the High Court of Karnataka in the case of The Krishi Mattu Ksheera Utpadaka Vividhoddesha Sahakari Sangh Niyamit Bakkal and another vs. Sohanlal reported in AIR 1993 KARNATAKA 20, where the Full Bench of this Court has considered the notice under Section 125 of Co-operative Societies Act which is read as under:
" In the light of the foregoing dictum of the Supreme Court there can possibly be no doubt at all that the expression 'any act' appearing in Sec. 125 is referable not merely to an illegal omission 9 but also to an omission simpliciter. In the circumstance it behoves on our part to fall in step with the views of the apex Court as aforesaid and in the light of the same to hold that the expression 'any act' referred to in Sec. 125 is not confined to illegal omissions alone but also covers a mere omission simpliciter. In fine our answers to the questions formulated are:
(1) (i) Notice under Section 125 is mandatory, where the act in question is with reference to the society. Such notice is also necessary if the 'act' in question is with reference to an officer of the society and the 'act' or omission complained of relates to the Constitution, management or business of the society.
(ii) Notice is also mandatory where the 'act' in question covers both the society and the officer.
(2) The expression 'any act' referred to in Sec.
125 of the Act is not confined to illegal omissions alone but also covers a mere omission simpliciter.
5. While parting we must hold that in the light of our views herein, the decision in the case of Ankola Urban Co-operative Credit Bank and in the Bank of Citizens, Belgaum case as also the decision in Somwarpet and Agricultural Produce Marketing Co-operative Society Ltd. are no longer 10 good law. The matter will now go back to the Division Bench for disposal in the light of the findings recorded by us herein as aforesaid. "
17. The Co-ordinate Bench of this Court in the case of Vinayaka Griha Nirmana Sahakara Sangha Ltd. vs. Karnataka Appellate Tribunal reported in I.L.R. 1995 KAR 518 as held as under:
"The dispute relating to title and possession of land cannot be a dispute within the meaning of sub- section (1) of Section 70. The dispute does not relate either to the constitution, management or the business of the Co-operative Societies... The bar under sub-section (3) only relates to the issue being raised in a Civil Court and is not applicable to the Appellate Authority under Section 71 of the Act. The finality attached to the order of the Registrar only bars agitation of the same question in any Court of Law and does not relate to the Appellate Authority... The dispute is the present case relates to title and possession of the land, which dispute is purely of a civil nature and cannot be gone into by the Registrar."
18. The another Co-ordinate Bench of this Court in the case of M/s. Deepa House Building Co-operative 11 Society Ltd., Mysore vs. Vaikuntegowda (D) by LRs and Others reported in 2015 (4) KCCR 2983 has held as under:
"KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959 - Section 125-Suit for partition and possession - Notice under - Not necessary as subject matter of suit is not one touching constitution, management or business of society."
19. The another judgment of this Court in the case of Nazir Ahamad vs. Anwarpashya Sayyadmeera Mujwar and Another reported in ILR 2018 KAR 3785, it is held as under:
"KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959 (for short 'the Act') - SECTION 125 - Notice necessary in suits, filed against the Co-operative Society - Plaintiff's suit for injunction against the Society - Matter in controversy relates to business of the Society - Institution of suit without issuing notice under Section 125 of the Act - Dismissal of suit - Legality of -
HELD, 12 Non-issue of notice under Section 125 of the Act, before filing a suit against Co-operative Society is a ground for return of plaint, but not a ground for dismissal of suit."
20. In view of the pronouncement of the Co- ordinate Benches and the fact of the case and dispute between the plaintiff and defendant are not pertaining to the business or constitution or management of the Society, but it is only a civil dispute between the plaintiff and defendant No.1 and the judgments in the case of M/s. Deepa House Building Co-operative Society Ltd. and in the case of Vinayaka Griha Nirmana Sahakara Sangha Ltd., stated supra are squarely applicable for the case on hand and there is no need for issuing notice under Section 125 of the Co-operative Societies Act.
21. That apart, the boundaries of the plaintiff and defendant No.1 was verified as per the Schedule 'A' and Schedule 'B' property. There is no conservative lane on the eastern side of the plaitniff's property, on the other hand, the property of the defendant is situated. There is no 13 conservative lane as per the schedule in the sale deed produced by defendant No.1 which reveals on the western side of the property of the defendant property of Late Chandrashekaraiah is situated. On perusal of the plaintiff's property on the eastern side private property is situated, there is no conservative lane. On the other hand, 15 feet x 76 feet belongs to the defendants property is situated. However, the plaintiffs case is the defendant No.1 without leaving the set back constructed the building and also it is revealed from the photos during the pendency of the suit that the defendant No.1 constructed the building.
22. The contention of the plaintiff is that she has complained to the respondent No.2-BBMP but they have not taken any action. Hence, the BBMP made as defendant No.2 in the suit.
23. However, the plaintiff not issued any notice under Section 482 of KMC Act. It is mandatory that a notice is required to be issued to the defendant No.2 as 14 issuing the sanction plan, issuing the licence were all business / affairs of the respondent No.2/defendant No.2/BBMP. Therefore, the notice is mandatory. But no such notice issued by the plaintiff. Therefore, without issuing statutory notices, the plaintiff cannot file the suit against respondent No.2 / BBMP.
24. The learned counsel for the appellant has relied upon the judgment of the Co-ordinate Bench of this Court in the case of Miss Karishma Anand vs. Union of India, Passport Department and Another reported in ILR 2012 KAR 2049 has held as under:
"CODE OF CIVIL PROCEDURE, 1908 - SECTION 80
- Scope and Object - Issuance of Statutory Notice to Union of India - Petitioner's prayer for dispensation - Dismissal of the application and order for return of plaint - Finding of the Trial Court is that plaintiff/petitioner has not sought for any interim relief and there is no urgency in the matter
- Pleaded against - HELD, The object of issue of notice under Section 80 of the Code of Civil Procedure is to provide an opportunity to the Government to consider the legal position to settle 15 the claim without compelling parties to go for litigation and also to afford an opportunity to the officer of the Government to scrutinise and settle the matter, if possible with a minimum action so that un-necessary litigation is avoided. However, Section 80(2) of Code of Civil Procedure also provides for the situation where notices can be dispensed with i.e., where the matter needs to be decided urgently. - FURTHER HELD, The proviso to Sub-Clause (2) of Section 80 does not specify that an I.A. seeking interim relief requires to be filed, to make out an urgency so as to dispense with the issuance of notice. On the other hand, suffice it if the plaintiff prima facie shows that there is some urgency in the disposal of the suit itself. In this context, even after registration of the suit nothing prevents the Court to give reasonable opportunity of showing cause in respect of relief sought by the plaintiff in the suit to the respondent/ defendant/ Union of India. - The observation made by the Trial Court that no urgency is made out by the plaintiff as no application is filed seeking any interim relief is totally uncalled for and the impugned order is liable to be quashed. - CODE OF CIVIL PROCEDURE, 1908 - SUB-CLAUSE (2) OF SECTION 80 - DISCUSSED."16
25. The other Co-ordinate Bench of this Court has also held that the Trial Court ought not to have dismissed the suit and the plaint could have returned for compliance of the mandatory provisions. However, the photographs of the defendant No.1 reveals that the Society had put up the construction without leaving any set back and in order to make cement plaster, they have to use the property of the plaintiff. Of course, the plaintiff counsel has contended that it is the duty of the BBMP officials to follow up the construction until completion of the construction and if any violation, they have to take action. But it is seen from the record that the BBMP officials have not taken any action for having constructed the building by the defendant No.1. It is necessary for the defendant No.2 to take action against the defendant No.1 by issuing notices in accordance with law. Therefore, this Court cannot issue any direction to the defendant No.2 for taking action in this appeal.
17
26. Therefore, I am of the view that the appellant has not made out a case for setting aside the dismissal of the suit in view of the non compliance of issuing notice under Section 482 of KMC Act and no purpose will be served if the plaint is returned to the plaintiff for filing the fresh suit. However, the plaintiff is at liberty to file fresh suit in accordance with law if it is permissible under the law.
27. Accordingly, the appeal is dismissed.
Sd/-
JUDGE GBB