Allowed

Shri Babu Appasab Ammanagi v. Shri Gulabsab S/O Imamsab Multani

Karnataka HC4 Nov 2022RSA/5098/2008

Case brief

AI extract

What is this about?

This is a regular second appeal regarding a suit for permanent injunction. The High Court set aside an order dismissing the appeal on limitation, holding the appeal was timely. The Court also set aside the decree which relied on Order 8 Rule 5 CPC without judicial scrutiny, emphasizing that such non-filing does not permit automatic decreeing without subjective satisfaction.

What did the court decide?

The regular second appeal was allowed. The order passed by the Court of Civil Judge (Sr. Dn) Hukkeri in R.A.No.73/2006 and the Judgment and Decree passed by the Civil Judge (Jr. Dn) Hukkeri in O.S.No.

Shri Babu Appasab Ammanagi Vs Shri Gulabsab… — Civil Procedure and Limitation | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 04^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON’BLE MS. JUSTICE JYOTI MULIMANI

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REGULAR SECOND APPEAL NO. 5098 OF 2008 (DEC)

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BETWEEN:

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SHRI BABU APPASAB AMMANAGI AGE: 27 YEARS, OCC: AGRICULTURE, R/O: SHIRADHAN – 591 309, TALUK: HUKKERI DIST: BELAGAVI.

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SHRI SHANKAR NINGAPPA GHANTI AGE: 32 YEARS, OCC: AGRICULTURE, R/O: SHIRADHAN – 591 309, TQ HUKKERI, DIST: BELAGAVI.

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SHRI MARUTI NINGAPPA GHANTI AGE: 27 YEARS, OCC: AGRICULTURE, R/O SHIRADHAN – 591 309, TQ: HUKKERI, DIST: BELAGAVI.

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...APPELLANTS

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(BY SRI. B.S. KAMATE. ADVOCATE)

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AND:

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SHRI GULABSAB S/O IMAMSAB MULTANI CALLING HIMSELF AS GULAB RAJASAB MULTANI AGE: MAJOR, OCC: NIL, R/O SHIRADHAN - 591309. TALUK: HUKKERI. DIST: BELAGAVI.

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… RESPONDENT

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(BY SMT. PALLAVI S. PACHHAPURE., ADVOCATE FOR SRI.SRINAND A. PACHHAPURE., ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 13.06.2008 PASSED BY THE CIVIL JUDGE (SR.DN.) HUKKERI, IN R.A.NO. 73/2006 AND THE JUDGMENT AND DECREE DATED 19.08.2006 PASSED BY THE CIVIL JUDGE (JR.DN.) HUKKERI IN O.S.NO.28/2006.

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THIS REGULAR SECOND APPEAL COMING ON FOR FURTHER HEARING THIS DAY; THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Sri. B.S. Kamate., learned counsel for appellants and

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Smt. Pallavi S. Pachchapure., learned counsel for the respondent has appeared in person.

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This appeal is from the Court of the Civil Judge (Sr. Dn), Hukkeri confirming the judgment and decree passed by the Civil Judge (Jr.Dn), Hukkeri.

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

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The brief facts of the case are stated as under:

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The plaintiff filed a suit seeking the relief of permanent injunction stating that he is the absolute owner

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of the suit property and enjoying the same. It is also stated that on 05.09.1991 the Tahasildar, Hukkeri granted the suit property to him and the Khata was mutated the defendants have no right, title, or interest but they are trying to interfere with his possession and hence the suit was filed.

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The defendants appeared in the suit. Based on the

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pleading, the Trial Court considered the following points.

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Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit property?

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Whether the plaintiff proves the alleged interference by the defendants of his lawful

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possession and enjoyment of the suit property?

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Is the plaintiff entitled to the relief as sought?

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To what order or decree?

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It is said that the Trial Court without giving a proper opportunity to file a written statement and without

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recording the evidence of the plaintiff and defendants proceeded to decree the suit. On appeal, the Appellate Court dismissed the appeal only on the ground of limitation. Hence, this Regular Second Appeal is filed under Section 100 of CPC is filed.

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Sri. B.S. Kamate., learned counsel for the

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appellants submits that the Judgment and Decree passed by both Courts are contrary to the law.

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Next, he submits that the First Appellate Court committed an error in holding that the appeal was timebarred.

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A further submission is made that the Trial Court passed the Judgment and Decree on 19.08.2006. The defendants applied for the issue of certified copies on 19.08.2006. The certified copy of the Judgment and Decree was issued on 14.09.2006. The last date for filing an appeal was 14.10.2006. It is also submitted that the 14^th of October 2006 was the Second Saturday being the holiday,

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the appeal was filed on 16.10.2006 and therefore, there was no delay in filing the appeal.

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Learned counsel vehemently contended that the First Appellate Court is not correct in dismissing the appeal as time-barred and dismissing the appeal without hearing the matter on merits.

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It is also contended that the First Appellate Court has concluded that the Judgment and Decree passed by the Trial Court are perverse, illegal, and capricious, and ought to have allowed the appeal.

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Lastly, he submitted that viewed from any angle the Judgment and Decree of the First Appellate Court as well as the Trial Court are illegal and not sustainable in law. Accordingly, he submitted that the appeal may be allowed.

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Learned counsel has relied on the decision reported in KARNATAKA SMALL INDUSTRIES MARKETING CORPORATION LTD., VS. M/S.PADMA TEXTILES BY ITS PROPRIETOR reported in ILR 2007 KAR 2844 .

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Smt.Pallavi Pachchapure., learned counsel for the respondent justified the Judgment and Decree of both the Courts below.

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Next, she submits that the defendants did not file a written statement. Hence, the Trial Court justified in decreeing the suit.

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A further submission is made that where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce Judgment based on the facts contained in the plaint.

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Learned counsel vehemently contended that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be admitted in the pleading of the defendant, shall be taken to be admitted. In the present case, the defendants have failed to file their pleadings, hence the Trial Court proceeded to pass the Judgment and Decree.

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Lastly, she submitted that the appellants have not made out any good grounds and hence the appeal may be dismissed.

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Heard the contentions urged on behalf of respective parties and perused the records with care.

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As could be seen from the lis between the parties, the suit giving rise to this appeal was filed by the plaintiff for a permanent injunction.

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The first argument is centered around the point of limitation and the second is about the non-filing of pleading by the defendants.

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Let me first answer the question of law regarding limitation. The defendants did not file the pleading. Hence, the Trial Court taking note of the plaint averments pronounced the judgment and decreed the suit. The First Appellate Court dismissed the appeal as time-barred.

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Suffice it to note that the plaint is presented on the 17^th of April 2006 the suit is registered and numbered as O.S.No.28/2006. The Trial Court issued a summons on the 18th of April 2006. The Trial Court decreed the suit vide Judgment and Decree dated 19.08.2006. The defendants applied for the issue of certified copies on 19.08.2006. The certified copy of the Judgment and Decree was issued on 14.09.2006. The last date for filing an appeal was 14.10.2006. Since the 14th of October 2006 was Second Saturday being the holiday, the appeal was filed on 16.10.2006. In my considered view, the appeal is in time and there is no delay in filing the appeal. I can say only this much that the First Appellate Court on an erroneous approach proceeded to dismiss the appeal on the ground of delay.

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A good deal of argument was canvassed on failure to file a written statement and pronouncement of Judgment based on the facts contained in the plaint.

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I find extracting Order 8 Rule 5 of CPC helpful in

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indicating the right approach.

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ORDER 8 RULE 5 OF CPC Specific denial.

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[(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

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PROVIDED that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

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(2) Where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment based on the facts contained in the plaint, except as against a person under a disability, but the court may, in its discretion, require any such fact to be proved.

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(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

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(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced].

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This rule is known as the doctrine of non-traverse which means that where a material averment is passed over without a specific denial, it is taken to be admitted. Omission to file a written statement did not, before 1976, amount to an admission of the facts stated in the plaint. The position has been substantially altered by the amendment of 1976. Sub-rule (2), inserted thereby, empowers the court to pronounce judgment based on facts contained in the plaint if the defendant has not filed a pleading except as against a person with a disability.

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Rule 5 has been renumbered as sub-rule (1) and subrules (2) to (4) have been inserted to confer discretion in the court in cases in which the defendant does not file a written statement to treat the allegations in the plaint as

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admitted and to pronounce judgment based on such allegations.

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Reverting to the facts of the case, as already noted above, the suit is one for a bare injunction.

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HALSBURY’S LAWS OF ENGLAND states: "An injunction is a judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing. In the former case, it is called a restrictive injunction, and in the latter a mandatory injunction."

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It is a remedy of an equitable nature. An injunction is an order of the Court directing a party to the proceedings to do or refrain from doing a specified act.

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The object of Injunction is prevention, and the aim is to maintain status-quo ante. The plaintiff claiming the relief of perpetual injunction has to establish the breach of an obligation or infringement of a legal right. A perpetual injunction is granted only after the plaintiff has established

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his right and the actual or threatened infringement of it by the defendant/s.

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In this background, let me consider the pleading. I have perused the plaint. In the plaint, the plaintiff has pleaded that the Tahasildar, Hukkeri granted the suit property in his favor and thus he became the absolute owner of the suit property.

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Suffice it to note that the plaintiff produced two RTC extracts along with the plant. I have perused the same with utmost care. One RTC extract pertains to the year 2005-06 and the other RTC does not contain the particulars of the year.

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It is significant to note that the Trial Court concluded that the defendants have not filed written statements hence they admit the claim of the plaintiff and the plaintiff has established his case. It is pivotal to note that the Trial Court without recording the evidence proceeded to pronounce the judgment under Order 8 Rule 5 sub-clause (2) of the Code.

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As is well known that the provision of Order 8 Rule 5 of CPC is a directory provision and not mandatory. Hence in case of non-filing of pleadings by the defendants, the courts should be cautious in proceeding under Order 8 before passing Judgment against the defendant/s. The law is well settled in this regard that even if the facts set out in the plaint are treated as having been admitted, it is not open for the Court to pass the Judgment against the defendant and in favor of the plaintiff and it is subjective satisfaction of the Court and not a blind discretion.

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The Trial Court in the present case without satisfying itself has simply decreed the suit holding as follows.

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“Though sufficient opportunity was given to the defendants, they have not filed W.S. Therefore, it shows that the defendants have admitted the claim of the plaintiff and plaint averments. Therefore, I am of the view that the plaintiff has established his case and the defendants are unnecessarily interfering with his lawful possession and enjoyment of the suit property. Therefore, I am of the view that the

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plaintiff is entitled to the relief of permanent injunction as sought. The suit of the plaintiff is decreed”.

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In my considered view, this is not ‘subjective satisfaction’ which required to be exercised by the Trial Court. Hence, on this ground, the Judgment and Decree of the Trial Court are liable to be set aside and the suit is to be dismissed. Hence, the suit is dismissed.

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I have already held that the regular appeal filed by the defendants is on time. The First Appellate Court has concluded that the judgment and decree of the Trial Court were perverse, illegal, and capricious and ought to have allowed the appeal and dismissed the suit. I may venture to say that both courts have failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the judgment and decree of both courts are unsustainable in law.

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The substantial questions of law are answered accordingly.

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Resultantly, the Order dated:13.06.2008 passed by the Court of Civil Judge (Sr. Dn) Hukkeri in R.A.No.73/2006 and the Judgment and Decree dated:19.08.2006 passed by the court of Civil Judge (Jr. Dn) Hukkeri in O.S.No.28/2006 are set aside.

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The Regular Second appeal is allowed .

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The parties to this appeal are to bear their respective

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costs.

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Sd/JUDGE

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TKN

Shri Babu Appasab Ammanagi v. Shri Gulabsab S/O Imamsab Multani

Case brief

What is this about?

What did the court decide?

Shri Babu Appasab Ammanagi v. Shri Gulabsab S/O Imamsab Multani

Case brief

What is this about?

What did the court decide?

What the court decided

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