Partly allowed

Sri K Dayanand Rai v. Shantharam Prabhu

Karnataka HC8 Feb 2021MSA/38/2020

Case brief

AI extract

What is this about?

The High Court set aside the District Court's Second Appeal judgment which had remanded a Small Cause Suit. The Court held that for Small Cause Court decrees, the proper remedy was revision under Section 18 of the Karnataka Small Cause Courts Act, 1964, making the Second Appeal maintainability questionable. Liberty to file revision was granted.

What did the court decide?

Impugned judgment in R.A.31/2019 set aside. Liberty granted to respondents to file a revision under Section 18 of Karnataka Small Cause Courts Act, 1964.

Sri K Dayanand Rai Vs Shantharam Prabhu — Civil Procedure and Limitation | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 8^TH DAY OF FEBRUARY, 2021

¶3

BEFORE

¶4

THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

¶5

MISCELLANEOUS SECOND APPEAL No.38 OF 2020

¶6

BETWEEN:

¶7

1 . SRI K DAYANAND RAI PRESIDENT, AGED ABOUT 52 YEARS, MAURISHKA PARK APARTMENT OWNER ASSOCIATION R/AT OPPOSITE SHARADA VIDYALAYA KODIALBILE, MANGALURU-575002.

¶8

2 . SMT ANITHA PRABHU VICE PRESIDENT, AGED ABOUT 49 YEARS, MAURISHKA PARK APARTMENT OWNER ASSOCIATION R/AT OPPOSITE SHARADA VIDYALAYA KODIALBILE, MANGALURU-575002.

¶9

3 . SRI DEVDAS S HEGDE SECRETARY, AGED ABOUT 55 YEARS, MAURISHKA PARK APARTMENT OWNER ASSOCIATION R/AT OPPOSITE SHARADA VIDYALAYA KODIALBILE, MANGALURU-575002.

¶10

4 . SMT APARNA P JOINT SECRETARY, AGE 48 YEARS,

¶11

¶12

MSA 38/2020

¶13

MAURISHKA PARK APARTMENT OWNER ASSOCIATION R/AT OPPOSITE SHARADA VIDYALAYA KODIALBILE, MANGALURU-575002.

¶14

5 . SRI G PADMANABHA SHETTY TREASURER, AGED 47 YEARS, MAURISHKA PARK APARTMENT OWNER ASSOCIATION R/AT OPPOSITE SHARADA VIDYALAYA KODIALBILE, MANGALURU-575002.

¶15

6 . SRI AMRATH KUMAR SHETTY JOINT TREASURER AGE 47 YEARS, MAURISHKA PARK APARTMENT OWNER ASSOCIATION R/AT OPPOSITE SHARADA VIDYALAYA KODIALBILE, MANGALURU-575002.

¶16

...APPELLANTS

¶17

(BY SRI. VIJAYA KRISHNA BHAT M. ADVOCATE) AND:

¶18

1 . SHANTHARAM PRABHU AGED 57 YEARS, S/O RAMDAS MADAVA PRABHU, R/AT APARTMENT NO.403, B BLOCK, MAURISHKA PARK OPPOSITE SHARADA VIDYALAYA KODIALBILE, MANGALURU-575001. 2 . VEENA SHANTHATAM AGED ABOUT 51 YEARS, W/O SHANTHARAM PRABHU, R/AT APARTMENT NO.403, B BLOCK,

¶19

¶20

MSA 38/2020

¶21

MAURISHKA PARK OPPOSITE SHARADA VIDYALAYA KODIALBILE, MANGALURU-575002.

¶22

:RESPONDENTS

¶23

(BY SRI G. SURYANARAYANAN & SRI ARVIND BABU J., ADVOCATES)

¶24

THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER XLIII RULE 1(U) OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 10.02.2020, PASSED IN R.A.NO.31/2019, BY IV ADDL. DIST. AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU, AND CONSEQUENTLY RESTORE THE ORDER DATED 04.04.2019 PASSED BY II ADDL. SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K., IN S.C. NO.26/2019 AND PASS SUCH OTHER ORDER AS THE COURT DEEMS FIT, IN THE INTEREST OF JUSTICE AND EQUITY.

¶25

THIS MISCELLANEOUS SECOND APPEAL COMING ON FOR ADMISSION ALONG WITH I.A.2/2020 THROUGH VIDEO CONFERENCING / PHYSICAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

¶26

JUDGMENT

¶27

The present respondents herein had filed a case in S.C. No.26/2019 in the Court of II Addl. Senior Civil Judge and CJM, Mangaluru, D.K., (for brevity, “Trial Court”) for the relief of a mandatory injunction in their favour against the defendants to

¶28

MSA 38/2020 4

¶29

restore the electricity supply to the apartment which is a suit schedule property. The present appellants were the defendants in the said S.C. No.26/2019. After their appearance it appears that the defendants therein filed I.A.III under Order 7 Rule 11(a) and 11(d) of CPC. The plaintiffs therein had also filed I.A. II under Order XXXIX Rules 1 and 2 of CPC. The Trial Court considering both I.As., by its common Order dated 04.04.2019 dismissed the I.A.II filed under Order XXXIX Rules 1 and 2 of CPC and allowed I.A.III filed under Order 7 Rule 11(a) and 11(d) of CPC. Consequently it rejected the suit filed by the plaintiffs before it.

¶30

Aggrieved by the same, the plaintiffs in the Trial Court preferred an appeal under Sections 104 and 105 of CPC in the Court of IV Addl. Dist. and Sessions Judge, Dakshina Kannada, Mangaluru, (for short, ‘District Court’) in R.A.31/2019. The present appellants as respondents appeared and contested the matter. The District Court, after hearing both side, by its impugned Judgment dated 10.02.2020, allowed the appeal and while setting aside the impugned order under consideration before it dated 04.04.2019 passed by the Trial Court, remanded the matter back to the Trial

¶31

MSA 38/2020 5

¶32

Court with a direction to re-admit the suit under its original number and to determine the suit in accordance with law. Aggrieved by the same, the defendants in the Trial Court who were the respondents in the District Court have preferred this Miscellaneous Second Appeal.

¶33

Respondents are being represented by their learned

¶34

counsel.

¶35

Learned counsels from both side are physically present

¶36

in the Court.

¶37

Though this matter is listed for admission, however,

¶38

with the consent from both side learned counsels it is taken up for its final disposal.

¶39

Learned counsel for the appellants in his short arguments submitted that against the decree passed by the Trial Court, no appeal was lying before the District Court either under Sections 104 and 105 of CPC or under Order XLI of CPC and the same was canvassed before the District Court. However, the District Court mistook that respondents before it have filed the appeal under Sections 104 and 105 of CPC instead of filing under

¶40

MSA 38/2020 6

¶41

Order XLI of CPC, observed that the improper mentioning of a provision of law would not annul the appeal. With this it held that the appeal should have been nomenclated as one filed under Order XLI of CPC instead of Sections 104 and 105 of CPC, as such, it proceeded to decide the appeal on merit. Learned counsel submits that thus the District Court misread the argument regarding maintainability agitated by the respondents before it and ignored Section 18 of the Karnataka Small Cause Courts Act, 1964.

¶42

Section 18 of the Karnataka Small Cause Courts Act,

¶43

1964 reads as below:

¶44

" Revision of Decrees and orders of Courts of Small Causes. -

¶45

The High Court, for the purpose of satisfying itself, that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such orders with respect thereto, as it thinks fit."

¶46

Learned counsel for the respondents (plaintiffs in the

¶47

Trial Court) submits that under Section 18 of the Karnataka Small Cause Courts Act, they would file a revision against the decree passed by the Trial Court in S.C.No.26/2019, as such, the Judgment and Decree passed by the District Court in R.A. 31/2019

¶48

MSA 38/2020 7

¶49

be set aside reserving liberty to the present respondents to file a revision before the Court.

¶50

Learned counsel for the appellants submits his no objections in entertaining the said submission made by the learned counsel for the respondents.

¶51

In view of the above, the appeal stands partly allowed.

¶52

The Judgment and Decree passed by the District Court in R.A. 31/2019 dated 10.02.2020 is set aside.

¶53

The respondents who are the plaintiffs in S.C. No.26/2019 are given liberty to prefer a revision under Section 18 of the Karnataka Small Cause Courts Act, 1964 provided the same is maintainable, within four weeks from today.

¶54

In view of the disposal of the main appeal, I.A.2/2020 does not survive for consideration.

¶55

Registry to transmit a copy of this Judgment to the Trial Court and the District Court along with concerned records, forthwith.

¶56

Sd/JUDGE sac*

Sri K Dayanand Rai v. Shantharam Prabhu

Case brief

What is this about?

What did the court decide?

Sri K Dayanand Rai v. Shantharam Prabhu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Gangadhar Vs S. Geetha

Sri.G.Srinivas S/O Late Govindaswamy Vs Sri.M.v. Sudharshan

Smt Jayamma Vs Sri Krishnappa

Smt Deepa Vs Sri Naveen G

Sri Abbas Vs State of Karnataka

S. B. Builders & Developers Vs Build Tech Polymers Pvt. Ltd.