Dismissed

The Assistant Executive Engineer (Elec) Anr. v. Smt. Madivalawwa W/O Hanamappa Kambali

Karnataka HC20 Sept 2016RSA/7159/2011

Case brief

AI extract

What is this about?

This judgment dismisses a second appeal preferred under Section 100 of the CPC. The High Court held the appeal defective and not maintainable as the appellants failed to formulate any substantial question of law in the memorandum of appeal, despite the absence of contest by defendants in the trial court.

What did the court decide?

Appeal dismissed in limine as no substantial question of law was raised.

The Assistant Executive Engineer (Elec)… — Civil Procedure and Limitation | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 20^TH DAY OF SEPTEMBER 2016

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BEFORE

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THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

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R.S.A.No.7159/2011

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BETWEEN :

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The Assistant Executive Engineer (Elec.) O & M Sub-Div. HESCOM Muddebihal

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Dist. Bijapur

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The Executive Engineer (Elec.) O & M Division HESCOM Bijapur. … APPELLANTS

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(By Sri R.S. Patil, Adv.)

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AND:

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Smt. Madivalawwa W/o Hanamappa Kambali Age: 67 years R/o Nagabanal Tq. Muddbhial Dist. Bijapur

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… RESPONDENT

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(By Sri D.P. Ambekar, Adv.)

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This RSA is filed under Section 100 of CPC against the Judgment and Decree dated 19.1.2011 passed in R.A. No.114/2008 on the file of the I Additional District Judge at Bijapur, Dismissing the appeal and confirming the judgment and decree dated 25.3.2008 passed in O.S. No.90/2006 on the file of the Civil Judge (Sr.Dn.,) At Muddebihal.

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This appeal coming on for admission this day, Court delivered the following:

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JUDGEMENT

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This second appeal is preferred by the defendant in O.S.No.90/2006, assailing judgment and decree passed in R.A.No.114/2008 by the I Additional District Judge, Bijapur, dated 19/01/2011, by which the judgment and decree passed by the Civil Judge (Sr.Dn.) Muddebihal, in O.S.No.90/2006 dated 25/03/2008 has been confirmed.

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For the sake of convenience, parties shall be referred to, in terms of their status before the trial court.

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Respondent is the mother of deceased Devendrappa. She filed the suit seeking compensation of Rs.3,00,000/-, as well as costs, on account of the death of her son Devendrappa. She has averred that she has three sons and her first son has separated and that she was living with two other sons. On 06/06/2004, plaintiff’s younger son by name Devendrappa, was proceeding to his lands with cattle feed at about 5.00 a.m. when defendants

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electric pole was left in the water well of one Ningayya of Nagabehal village. While, Devendrappa was walking, he came in contact with the electric wire, which had fallen from the electric pole. As a result of electrocution, Devendrappa died on the spot. Contending that the plaintiff had lost her bread earner, hale and healthy son on account of the gross negligence and carelessness of the defendants, she filed a suit seeking compensation.

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In response to the suit summons and court notices, defendants appeared through their counsel, but they did not file any written statement and did not contest the suit.

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In order to substantiate her case, plaintiff examined herself as P.W.1 and produced 8 documents, which were marked as Exs.P.1 to P.8. As there was no written statement filed on behalf of the defendants, trial court raised the following points for its consideration:-

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“1) Whether the plaintiff proves that her son by name Devendrappa died due to negligence of defendants for maintaining electric wire which was erected to the well of one Ningayya, s/o.Mahalingayya Salimath of Nagabenal village on 6/6/2004 at about 5 a.m.? 2) Whether the plaintiff is entitled to get compensation of Rs.3,00,000/from defendants jointly and severally?

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3) What order?”

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The trial court answered Point Nos.1 and 2 in the affirmative and decreed the suit by awarding compensation of Rs.2,98,000/- with future interest at 6% p.a. from the date of the suit till realization. Defendants were directed to deposit the compensation within three months from the date of the judgment.

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Being aggrieved by the judgment and decree of the trial court, defendants preferred R.A.No.114/2008 before the first appellate court which, on hearing the

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learned counsel for respective parties, framed the following points for its consideration:-

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“1) Whether the appellants in this appeal have made out sufficient and satisfactory grounds to set-aside the impugned judgment and decree dated 25/03/2008 in O.S.90/06 passed by Civil Judge (SR.Dn.) Muddebihal?

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2) Whether the appellants are able to prove that court below has committed any error, incorrectness, illegality and perversity while passing impugned judgment thereby calling for interference by this court?

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3) What order?”

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It answered Point Nos.1 and 2 in the negative and dismissed the appeal by confirming the judgment and decree of the trial court, after condoning the delay of five months and ten days in filing the appeal.

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Being aggrieved by the judgment and decree of the first appellate court dated 19/01/2011, defendants have preferred this second appeal.

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I have heard learned counsel for appellants and learned counsel for respondent and perused the material on record.

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Appellants’ counsel contended that the court below were right in granting compensation of Rs.2,98,000/-, with future interest at 6% p.a. from the date of the suit till realization to the respondent. He submitted that having regard to the circumstances under which plaintiff’s son died, it is clear that there was no negligence or carelessness on the part of the defendants. That defendants are concerned only with maintenance of electric poles, which are erected and not with regard to any electric wire, which has fallen to the well of Ningayya, in whose land Devendrappa died. He contended that substantial questions of law would arise in this appeal as the courts below did not take into consideration as to

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whether there was any liability on the part of the defendants and that the award of compensation is bad in law. He submitted that appeal may be admitted for a detailed hearing.

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Per contra, learned counsel for respondent supporting the judgment of the first appellate court, which has confirmed the judgment of the trial court, contended that the appellants herein cannot maintain this appeal by stating that the substantial questions of law would arise in this appeal. He submitted that under Section 100 of the Code of Civil Procedure, 1908 (CPC), it is a mandatory requirement on the part of the appellant/s to precisely state the substantial question of law involved in the appeal and in the absence of there being any substantial question of law raised in the memorandum of appeal, the appeal is not maintainable.

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He next submitted that the appellants herein did not file their written statement before the trial court although, they were served. Further, P.W.1 – plaintiff was

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not cross-examined and defendants did not let in any evidence, as they had not filed a written statement. On the basis of the material on record, trial court granted relief to the plaintiff, which has been rightly affirmed by the first appellate court. Even before the first appellate court, appellants did not file any written statement. Therefore, appellants herein cannot seek to raise any substantial question of law in their appeal in the absence of there being any contest in the suit. He submitted that the second appeal be dismissed in limine.

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Having heard learned counsel for appellants and on perusal of the material on record, particularly, the memorandum of second appeal filed by the appellants herein, it is noted that the said memorandum consists of facts of the case, grounds of appeal, interim prayer and prayer columns, but no substantial question of law has been formulated by the appellants. On that short ground alone, it is held that the memorandum of second appeal

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filed by the appellants is defective and therefore, cannot be maintained.

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That apart, it is noted that the defendants did not contest the suit by filing a written statement. Further, when the evidence was let in by the plaintiff as P.W.1, defendants neither appeared before the court to file any written statement nor cross-examine P.W.1. In fact, there was a delay of about five months and ten days in filing R.A.No.114/2008 before the first appellate court. The said court condoned the delay and has heard the respective parties on merits and after considering the oral and documentary evidence on record, confirmed the judgment and decree of the trial court granting compensation to the respondent.

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In the absence of there being any contest at all in the suit and in the absence of there being any substantial question of law being raised in the memorandum of appeal, appellants herein cannot seek

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admission of the appeal on the basis of any substantial question of law that may arise in the appeal.

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For the aforesaid reasons, appeal is dismissed.

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17. Parties to bear their respective costs.

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Sd/JUDGE

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*mvs

The Assistant Executive Engineer (Elec) Anr. v. Smt. Madivalawwa W/O Hanamappa Kambali

Case brief

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The Assistant Executive Engineer (Elec) Anr. v. Smt. Madivalawwa W/O Hanamappa Kambali

Case brief

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What did the court decide?

What the court decided

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