Dismissed

K Nagaraj S/O. K Siddappa v. S Satishbabu S/O.Neelkanthappa

Karnataka HC6 Jul 2022RSA/100044/2014

Case brief

AI extract

What is this about?

This court dismissed a Regular Second Appeal filed by a plaintiff challenging the rejection of a civil suit where the plaintiff claimed forgery of a liquor license transfer affidavit, upheld Section 68-B bar on Civil Court jurisdiction.

What did the court decide?

The appeal was failed and dismissed at the stage of admission as no substantial question of law was made out.

K Nagaraj S/O. K Siddappa Vs S… — Constitutional and Fundamental Rights | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 04^TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE E.S.INDIRESH

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REGULAR SECOND APPEAL NO. 100044 OF 2014 (-)

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BETWEEN:

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K NAGARAJ S/O. K SIDDAPPA AGE: 51 YEARS, OCC: BUSINESS R/O. BELLARY ROAD KURUGOD, TQ and DIST: BELLARY

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(BY SRI. ABHISHEK PATIL, ADVOCATE)

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AND:

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SATISHBABU S/O.NEELKANTHAPPA AGE: 51 YEARS, OCC: BUSINESS R/O. KARTIK WINES DOOR NO. 1140/B, WARD NO.1 TORANAGALLU 583 123 PERMANENT RESIDENT OF NEAR M G BROTHERS ANANTPUR ROAD, PATEL NAGAR, BELLARY 583 101.

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THE DEPUTY COMMISSIONR OF EXCISE BELLARY 583 101 DIST: BELLARY

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THE COMMISSIONER OF EXCISE GOVERNMENT OF KARNATAKA II FLOOR, VAKKALIGARA BHAVAN BANGALORE 560 001

…APPELLANT

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THE DEPUTY COMMISSIONER (REVENUE) BELLARY 583 101.

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…RESPONDENTS

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(BY SRI. RAVI HEGDE, ADVOCATE FOR R1; SRI. PRASHANT MOGALI, GOVT.ADVOCATE FOR R2 TO R4)

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THIS RSA IS FILED U/O. XLII RULE 1 R/W. SEC. 100 OF CPC 1908, AGAINST THE JUDGEMENT & DECREE DTD:17.12.2013 PASSED IN R.A.NO.35/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, KUDLIGI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD:21.02.2013 AND THE DECREE PASSED IN O.S. NO.46/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC., AT SANDUR, ALLOWING TH SUIT FILED FOR DECLARATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY. THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This Regular Second Appeal is preferred by the plaintiff challenging the judgment and decree dated 17.12.2013 passed in R.A.No.35/2013 on the file of the Senior Civil Judge and JMFC, Kudligi (hereinafter referred to as ‘the First Appellate Court’, for brevity), confirming the judgment and decree dated 21.02.2013 passed in O.S. No.46/2010 on the file of the Civil Judge and JMFC, Kudligi (hereinafter referred to as ‘the trial Court’, for brevity), dismissing the suit of the plaintiff.

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�� For the sake of convenience, the parties to this appeal

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shall be referred to in terms of their status and ranking before the trial Court.

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�� The facts relevant for the purpose of adjudication of this appeal are that, the plaintiff claims to be the CL-9 license holder and was running a bar and restaurant in the name and style of M/s.Supreme Bar at Toranagallu, Ballari District and the said license was being renewed every year. It is further stated by the plaintiff that, defendant No.1 is running a bar and restaurant under the name and style M/s. Kavana Wine at Door No.1140/1B of Toranagallu, Hospet road and it is shown that the license issued in favour of the plaintiff has been transferred in the name of defendant No.1 and as such, plaintiff disputed the said transfer of license by defendants No.2 to 4 in favour of defendant No.1 and filed a suit in O.S.No.46/2010, seeking the declarative relief that the affidavit dated 20.09.2004 executed by defendant No.1 with the defendant No.2 and transfer of license in Form No.17/B by the defendant No.2 is forged and null and void.

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�� On service of notice, defendant No.2 entered appearance and filed detailed written statement alleging that the

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suit is not maintainable for want of notice under Section 80(1) of the Code of Civil Procedure. Defendant No.2 – Deputy Commissioner of Excise, Ballari, has also raised preliminary objection that the suit is not maintainable under Section 68 and 68B of the Karnataka Excise Act, 1965 (hereinafter referred to as ‘the Act’, for brevity) and accordingly sought for dismissal of the suit. Defendant No.2 has also filed I.A.No.IX under Order 7 Rule 11(d) R/w. Section 151 of the Code of Civil Procedure and sought for rejection of the plaint. The plaintiff filed objections to the I.A. No.IX. The trial Court after considering the material on record and averments made in the plaint, rejected the plaint on 21.02.2013, by allowing I.A.No.IX filed by defendant No.2. Feeling aggrieved by the same, plaintiff has preferred R.A.No.35/2013 before the First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court after considering the material on record, by its judgment and decree dated 17.12.2013, dismissed the appeal with cost of Rs.5000/-, inter alia confirmed the judgment and decree passed in O.S.No.46/2010. Feeling aggrieved by the same, plaintiff has preferred this Regular Second Appeal.

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�� I have heard Sri. Abhishek Patil, learned counsel appearing for the appellant, Sri. Ravi Hegde, learned counsel appearing for respondent No.1 and Sri. Prashant Mogali, learned Govt. Advocate, appearing for the respondents No.2 to 4.

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�� Sri. Abhishek Patil, learned counsel appearing for the appellant contended that, the trial Court ought to have considered the scope of Order 7 Rule 11 of Code of Civil Procedure and ought to have read the entire averments of the plaint before allowing the application in I.A.No.IX. He further contended that, the finding recorded by both the Courts below with regard to bar of jurisdiction under Section 68-B of the Act is incorrect and the Civil Court is having jurisdiction to entertain the plaint and accordingly he sought for interference of this Court.

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�� Per contra, Sri. Ravi Hegde, learned counsel appearing for the respondent No.1 sought to justify the impugned judgment and decree passed by the Courts below and argued that the suit is not maintainable as the relief sought for in the suit is for nullifying the forged document dated 20.09.2004.

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�� Sri. Prashant Mogali, learned Government Advocate appearing for respondents No.2 to 4 argued in support of the impugned Judgment and Decree passed by the Courts below.

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�� In the light of the submissions made by the learned counsel appearing for the parties, the core questions to be answered in this appeal is whether the O.S.No.46/2010 is maintainable before the trial Court in view of Section 68-B of the Act. Section 68-B of the Act reads as under:

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“68. No Civil Court shall have jurisdiction in respect of any matter which any excise officer or other authority empowered by or under this Act has to determine and no injunction shall be granted by any court in respect of any action taken or to be taken by such excise officer or authority in pursuance of any power conferred by or under this Act.”

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�� It is the case of the plaintiff that, the plaintiff was granted license by the respondent authorities to run bar and restaurant as per CL-9 license till 2004-2005 and thereafter defendant No.1 is running the bar and restaurant based on the very same CL-9 license. It is also forthcoming from the finding recorded by both the Courts below that, the plaintiff has challenged the

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affidavit dated 20.09.2004 said to have been made by the defendant No.1 in favour of defendant No.2. In this regard, it is also discussed by the Courts below that WP No.17035/2005 was filed before this Court and the said writ petition came to be dismissed and thereafter the plaintiff preferred an appeal before the Excise commissioner under Section 61 of the Act. Taking into consideration that the grievance of the plaintiff is that the affidavit dated 20.09.2004 is said to have been forged by the defendant No.1 and in this regard, the Civil Suit is not maintainable in terms of Section 68-B of the Act. If at all the plaintiff is aggrieved by the effect that the affidavit has been forged, there was no impediment for the plaintiff to launch criminal action against defendant No.1. Therefore, I am of the opinion that both the Courts below rightly rejected the plea made by the plaintiff with regard to the relief sought for in OS No.46/2010.

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�� It is well established principle of law that, while considering the application under Order 7 Rule 11 of Code of Civil Procedure, It is the duty of the trial Court to look into the plaint averments alone. However, in the present case, as there is statutory bar under Section 68-B of the Act, both the Courts below

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have rightly dismissed the suit filed by the plaintiff. In view of the law declared by the Constitution Bench of the Hon'ble Apex Court in Dhulabhai Vs. State of Madhya Pradesh , reported in AIR 1969 SC 78 , the suit is not maintainable.

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�� In that view of the matter, I am of the view that as the plaintiff has not made out case for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure. Accordingly, the appeal fails and dismissed at the stage of admission.

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K Nagaraj S/O. K Siddappa v. S Satishbabu S/O.Neelkanthappa

Case brief

What is this about?

What did the court decide?

K Nagaraj S/O. K Siddappa v. S Satishbabu S/O.Neelkanthappa

Case brief

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What did the court decide?

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