Karnataka High Court
Smt Vasanthi vs Shankara on 27 September, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:35384
RSA No. 1263 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1263 OF 2021 (INJ)
BETWEEN:
1. SMT. VASANTHI
W/O LATE NANADA
AGED ABOUT 64 YEARS
2. SRI UDAYA RAJ
S/O LATE NANADA
AGED ABOUT 36 YEARS
3. SRI GIRI RAJ
S/O LATE NANADA
AGED ABOUT 34 YEARS
THE APPELLANTS ARE
R/AT MOODANIDAMBURU VILLAGE
UDUPI TALUK AND DISTRICT-576101
Digitally signed
by SHARANYA T ...APPELLANTS
Location: HIGH
COURT OF (BY SRI PRASANNA V.R., ADVOCATE)
KARNATAKA
AND:
1. SHANKARA
S/O LATE SOMU
AGE MAJOR
R/AT H.NO.12-2-30
OPP: MODERN SCHOOL
VINODA NAGARA, KADABETTU
MOODANIDAMBURU VULLAGE
UDUPI TALUK
UDUPI TISTRICT-576101.
-2-
NC: 2023:KHC:35384
RSA No. 1263 of 2021
2. THE ASSISTANT COMMISSIONER
KUNDAPURA TALUK
UDUPI DISTRICT-576101.
3. THE TAHASILDAR
TALUK OFFICE
UDUPI TALUK
UDUPI DISTRICT-576101.
...RESPONDENTS
THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.08.2020 PASSED IN
R.A.NO.55/2017 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM., UDUPI, DISMISSING THE APPEAL
CONFIRMING THE ORDER DATED 06.07.2017 PASSED ON
IA.NO. IX IN O.S.NO.388/2013 ON THE FILE OF THE III
ADDITIONAL CIVIL JUDGE AND JMFC., UDUPI. ALLOWING THE
IA.NO.IX FILED UNDER ORDER VII RULE 11(a) AND SEC.151
OF CPC., FOR REJECTION OF PLAINT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellants' counsel.
This matter is listed for admission.
2. The factual matrix of the case of the plaintiff before the Trial Court that while filing the suit for the relief of bare injunction and suit is also valued under Section 26(c) and court fee is paid only Rs.25/- and the relief is sought though it is termed as permanent injunction, having perused the prayer for a perpetual injunction directing the defendants, their persons, -3- NC: 2023:KHC:35384 RSA No. 1263 of 2021 workers and all persons claiming through or under them from evicting the plaintiff from the plaint schedule property and to direct the defendants to allow the plaintiff to continue in the plaint property as the owner of the plaint property or from in any way interfering with the peaceful possession and enjoyment of the plaint property and hence an application is filed by the first defendant before the Trial Court contending that the suit is barred from entertaining the same and suit relating to property coming under the PTCL Act and involved under Order VII Rule 11 of Cr.PC. The defendants further contend in the application that as per Section 5(2) of the PTCL Act, the order passed by the Deputy Commissioner shall be final and shall not be questioned in any Court of law and no injunction shall be granted by any Court in respect of proceedings taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under the said Act. Hence, the suit is expressly barred as per the said provision of law and hence Civil Court is not having any jurisdiction to grant any relief or expressed the bar in special enactments.
-4-
NC: 2023:KHC:35384 RSA No. 1263 of 2021
3. This application was resisted by the plaintiff contending that in the suit they have not challenged the order of the Deputy Commissioner or the Assistant Commissioner and only the claim is made with regard to the possessory right and hence, the application filed under Order 7 Rule 11(a) of CPC cannot be entertained.
4. The Trial Court having considered the grounds urged in the application as well as the objection statement filed by the appellants/plaintiffs perused the material on record and also taken note of the pleadings made by the plaintiffs and also the relief sought in the plaint and in paragraph No.12 also made an observation that the plaintiff has dramatically sought the relief before this court without disclosing on what right he is to be allowed to continue in the property as owner. The entire plaint is silent regarding it. Having taken note of nature of the relief sought and also the pleadings made by the plaintiff and also considering the order passed by this Court in W.P.No.30189/2008, wherein held that civil suit is not maintainable and the special enactment bars the jurisdiction of the Court and also taken note of Sections 4, 5, 5(a) of the Karnataka S.C. and S.T. (Prohibition of Transfer) Act, 1978 and -5- NC: 2023:KHC:35384 RSA No. 1263 of 2021 detailed order has been passed that the suit filed in the nature is not maintainable before the Court and allowed the application in coming to the conclusion that suit of the plaintiff is barred by law.
5. Being aggrieved by the said order, an appeal is filed in R.A.No.55/2017 and the First Appellate Court also having considered the grounds urged in the appeal formulated the point whether the plaint is liable to be rejected in view of the specific bar provided under Section 5(2) of the Karnataka Scheduled Casts and Scheduled Tribes PTCL Act, 1978 and also whether the order passed by the Trial Court is illegal, perverse and capricious.
6. Having considered the material on record particularly the pleadings made in the plaint and also the relief sought in the suit as well as the grounds urged by the defendants comes to the conclusion that, when an application is filed before the concerned authority, an order has been passed and it has reached its finality and plaintiff has suffered an order at the hands of the Deputy Commissioner also and adopted an ingenious method in drafting the plaint and the same is cleverly -6- NC: 2023:KHC:35384 RSA No. 1263 of 2021 drafted though it is termed as injunction suit and relief is sought directing the defendants to recognize the plaintiff as owner of the suit schedule property and hence comes to the conclusion that Trial Court has not committed any error and also not found any perversity and rejected the appeal. Being aggrieved by the said order, the present second appeal is filed before this Court.
7. The counsel would vehemently contend that both the Courts failed to take note of the very nature of the relief sought in the plaint and also the counsel would vehemently contend that suit is filed only for protecting the possessory right and not claimed or questioned any order passed by the Deputy Commissioner and no order is challenged before the Civil Court and the very approach of the Trial Court and First Appellate Court is erroneous and hence, this Court has to frame substantial question of law that both the Courts have committed an error in allowing the application filed under Order 7 Rule 11(d) and though it is termed as 11(a), comes to the conclusion that it is barred by law and hence to admit and to frame substantial question of law.
-7-
NC: 2023:KHC:35384 RSA No. 1263 of 2021
8. Having heard the appellants' counsel and also on perusal of the plaint averments since this Court has earlier directed the appellants herein to produce the copy of the plaint and having considered the prayer portion though suit is valued under Section 26(c) and relief is sought indirectly to direct the defendants to allow the plaintiff to continue in the plaint property as the owner of the plaint property and it is nothing but a suit for declaration to declare that the plaintiff is the owner of the plaint property and when he has suffered an order before the concerned authority when the proceeding was initiated under the PTCL Act and indirectly an attempt is made to take the decree of declaration before the Trial Court and though it is termed as permanent injunction suit and relief sought in the prayer is nothing but a clever drafting and an ingenious method is adopted by the appellant to take the order of declaration to declare the plaintiff as owner of the property and also taken note of the Trial Court by considering the plaint averments and also observed that nothing is stated with regard to the ownership is concerned and the same also observed by the Trial Court as well as the First Appellate Court and hence, I do not find any error committed by the Trial Court in -8- NC: 2023:KHC:35384 RSA No. 1263 of 2021 entertaining an application filed under Order 7 Rule 11 of CPC in coming to the conclusion that suit is barred by law.
9. The very contention that it is only a claim for possessory right also cannot be accepted having considered the prayer sought in the plaint and the same is not only in respect of possessory right and also indirectly sought for an order of declaration to declare the plaintiff as owner and once he had suffered an order before the Deputy Commissioner who is the competent authority to take the decision with regard to exercising the power under the PTCL Act. Hence, the grounds urged in the appeal will not comes to the aid of the appellants and question of framing any substantial question of law does not arise by invoking Section 100 of CPC.
10. In view of the discussions made above, I pass the following.
ORDER Second appeal is dismissed.
Sd/-
JUDGE AP List No.: 1 Sl No.: 83