Dismissed

Smt Maramma v. Smt Mahadevamma

Karnataka HC24 Sept 2021RSA/558/2019

Case brief

AI extract

What is this about?

In a regular second appeal filed under Section 100 of the CPC, this court dismissed the appeal at the admission stage, holding it not maintainable as the underlying order permitted withdrawal of suit without fresh suit liberty. The court found no substantial question of law warranted interference.

What did the court decide?

The second appeal was dismissed at the admission stage on the ground of non-maintainability and absence of substantial question of law.

Smt Maramma Vs Smt Mahadevamma — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.558/2019

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BETWEEN:

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1 . SMT MARAMMA

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W/O LATE BASAVARAJAPPA, AGED ABOUT 77 YEARS

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2 . SHIVARAJU S/O LATE BASAVARAJAPPA, AGED ABOUT 50 YEARS

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3 . MAHADEVASWAMY S/O LATE BASAVARAJAPPA, AGED ABOUT 48 YEARS

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4 . SHANKARA S/O LATE BASAVARAJAPPA, AGED ABOUT 46 YEARS.

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5 . SURESHA

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S/O LATE BASAVARAJAPPA, AGED ABOUT 44 YEARS

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ALL ARE R/AT DOORA VILLAGE, JAIPURA HOBLI, MYSURU TALUK.

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... APPELLANTS

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(BY SRI RAHUL DESAI, ADVOCATE A/W SRI T N RAGHUPATHY, ADVOCATES)

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AND:

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SMT MAHADEVAMMA SINCE DECEASED BY HER LRS.

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RAJAMMA

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W/O CHIKKAMADAPPA, AGED ABOUT 57 YEARS, R/AT HALLIKEREHUNDI CHIKKAIAHANA CHATRA HOBLI, MARALURU POST, NANJANGUD TALUK.

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RATHNAMMA

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W/O SHIVASHANKARAPPA @ ERAPPA AGED ABOUT 55 YEARS

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R/AT DOORA VILLAGE,

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JAIPURA HOBLI, MYSURU TALUK.

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MAHADEV

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S/O LATE SINDHUALLI MAHADEVAPPA,

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AGED ABOUT 53 YEARS R/AT MALKUNDI VILLAGE, HULLAHALLI HOBLI, HURA POST, NANJANGUD TALUK.

4. SAROJA

W/O KUMARA,

AGED ABOUT 49 YEARS

BASAVARAJU

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S/O LATE SINDHUALLI MAHADEVAPPA, AGED ABOUT 47 YEARS

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R4 AND 5 ARE R/AT

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DOORA VILLAGE, JAIPURA HOBLI, MYSURU TALUK.

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... RESPONDENTS

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(BY SRI N NANJUNDA SWAMY, ADVOCATE)

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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 05.09.2009 PASSED ON IA. NO.II IN R.A.NO.273/2002 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES AND CIVIL JUDGE (SR.DN), MYSURU, PARTLY ALLOWING THE IA. II FILED UNDER ORDER XXIII RULE 1 R/W SEC. 151 OF Code of Civil Procedure AND DISPOSING OFF THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 31.10.2002 PASSED IN OS.NO.101/1997 ON THE FILE OF THE II CIVIL JUDGE (JR.DN) AND JMFC, MYSURU DISMISSING THE SUIT FOR DECLARATION.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by the plaintiffs challenging

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the order dated 05.09.2019 passed on I.A. No.II in R.A. No.273/2002 by the Court of the Small Causes and Civil Judge (Sr.Dn.) Mysuru.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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It is the case of the plaintiffs that the plaintiffs

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are the absolute owners of the suit schedule property. The plaintiffs further averred that, the husband of 1^st plaintiff,

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during his lifetime had put up a shed on the vacant site abutting to his house and the defendant obstructed the peaceful possession and enjoyment of the property by husband of 1^st plaintiff and as such, husband of 1^st plaintiff had filed a suit in O.S. No.322/1990 before the II Munsiff, Mysore, against the defendant for permanent injunction and the Trial Court decreed the suit by judgment and decree dated 13.12.1995.

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It is the case of the plaintiffs that the defendant has no right or title in respect of the suit schedule property and the suit property was vacant site and temporarily leased out by father of plaintiffs 2 and 3 in favour of the defendant on a monthly rent of Rs.20/-. It is the case of the plaintiffs that despite making demand to the defendant to vacate the suit schedule property and to deliver the vacant possession of the suit schedule property to the plaintiffs, since, the same was refused by the defendant and as such, the plaintiffs have filed the suit for declaration and possession.

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4. After service of summons, defendant entered

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appearance and filed written statement denying the plaint averments. It is the specific case of the defendant that her father-late Javanappa was in possession and enjoyment of the suit schedule property and he died leaving behind her as his legal heir. It is further stated in the written statement that property of the defendant is situated within the Gramatana of Doora village. It is further stated that the husband of 1^st plaintiff has filed OS No.322/1990 before the trial Court and the said suit is not in respect of the property in question in the present case and accordingly, the defendant denied the title of the suit schedule property by the plaintiffs and further stated that suit filed by the plaintiffs is barred by limitation and as such, sought for dismissal of the suit.

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On the basis of the rival pleadings, the trial Court has formulated following issues and additional issues for its consideration:

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1) Whether the plaintiff proves that she is the absolute owner of the suit schedule property ?

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2) Whether the plaintiff proves that he father of the defendant took schedule property on lease in the year 1988 on monthly rent of Rs.20/- ?

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3) Whether the plaintiff is entitled for possession ?

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4) Whether the suit is barred by law of limitation ?

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5) Whether the suit is not properly valued ?

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6) Whether the plaintiff is entitled for suit claim ?

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7) What order or decree ?

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Additional Issue:

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1) Whether the defendant proves that the suit is not maintainable without fulfilling the Mandatory Provisions of law and the formalities there under ?

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In order to establish their case, plaintiff No.2 was examined as PW1 and examined another witness as PW2 and got marked 23 documents as Exs.P1 to P23. On the other hand, defendant examined herself as DW1 and

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examined another witness as DW2 and produced 13 documents as Exs.D1 to D13.

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The trial Court, after considering the material on

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record, by its judgment and decree dated 31.10.2002, dismissed the suit of the plaintiffs and being aggrieved by the same, plaintiff No.3 has preferred appeal in RA.No.273/2002 on the file of First Appellate Court. Before

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the First Appellate Court, plaintiff No.3 has filed an application in IA.II under Order XXIII Rule 1 read with Section 151 of Code of Civil Procedure seeking permission

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of the Court to withdraw the appeal with liberty to file fresh suit on the same cause of action. The said appeal

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was resisted by the defendant. The First Appellate Court, after re-appreciating the facts on record, by its order dated 05.09.2009 partly allowed the prayer made by plaintiff No.3 in IA.II directing the plaintiff to withdraw the suit, however, refused to permit the plaintiff to file fresh suit on the same cause of action. Being aggrieved by the

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Order passed on IA.II, the plaintiffs have preferred this Regular Second Appeal under Section 100 of CPC.

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Sri. Rahul Desai learned counsel for the

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appellants submits refusal by the First Appellate Court to file fresh suit on the same cause of action, is bad in law and contended that the judgment and decree passed by the trial court as well as order passed by the First Appellate Court on IA.II is bad in law.

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On the other hand, Sri.Nanjundaswamy, learned counsel for the respondents submits that the second appeal itself is not maintainable before the Court, as the Regular appeal came to be dismissed by the First Appellate Court, permitting the plaintiff No.3 to withdraw the suit without granting liberty to file a fresh suit on the same cause of action and therefore, appeal itself is required to be dismissed on the ground of preliminary objection. He also contended that the trial Court having taken note of the fact that plaintiffs failed to issue notice under Section 106 of Transfer of Property Act, has rightly dismissed the

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suit and thereafter, plaintiffs have filed appeal before the First Appellate Court and the First Appellate Court, having taken note of the fact that issuance of the notice under Section 106 of Transfer of Property Act is a material defect which cannot be cured by permitting the plaintiffs to file a fresh suit and allowing them to issue one more notice under Transfer of Property Act would amount to multiplicity of proceedings. Accordingly, he sought for dismissal of the suit.

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In view of preliminary objection raised by learned counsel appearing for the respondents, I have carefully considered the provisions contained under Section 100 of Code of Civil Procedure. Section 100 (1) and (2) read as under:

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“100.Second appeal-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High court, if the High Court is satisfied that the case involves a substantial question of law.

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(2) An appeal may lie under this section from an appellate decree passed ex-parte.”

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The language employed under Section 100 of

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CPC states that the appeal shall lie to the High Court from every decree passed by the Appellate Court. In the instant case, the appeal is preferred by plaintiffs against the order passed by the First Appellate Court on IA.II, permitting the plaintiff No.3 to withdraw the suit but not permitting him to file fresh suit on the same cause of action. In that regard, I find force in the argument of learned counsel appearing for the respondents that the appeal itself is not maintainable as the First Appellate Court has passed the order on 05.09.2009, permitting the plaintiff to withdraw the suit, however, declined to accept the contention of the plaintiff with regard to filing the fresh suit on the same of cause of action. In that view the matter, the appeal itself is not maintainable. Therefore, the impugned order passed by the First Appellate Court and judgment and decree passed by the trial court are just proper, which do not call for interference in this appeal.

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In view of aforesaid discussion, I do not find material irregularity or perversity in the order passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the appellants have not made out grounds for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed at the Admission stage itself, accordingly, appeal is dismissed .

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Sd/JUDGE

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SB

Smt Maramma v. Smt Mahadevamma

Case brief

What is this about?

What did the court decide?

Smt Maramma v. Smt Mahadevamma

Case brief

What is this about?

What did the court decide?

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