Remanded

The Bangalore Development Authority v. Sri Jawaharlal

Karnataka HC25 May 2023RFA/128/2008

Case brief

AI extract

What is this about?

In this first appeal against a decree for permanent injunction, the High Court, Karnataka, allowed the appeal and remitted the matter to the trial court. Finding that the appellant raised the plea of land acquisition for the first time before the High Court without proving prejudice, the Court remitted the case to allow the appellant to file a written statement and adduce evidence.

What did the court decide?

The suit judgment and decree dated 16.11.2006 are set aside. The matter is remanded to the trial court to reconsider the case afresh after giving both parties an opportunity to adduce evidence and pro

The Bangalore Development Authority Vs Sri… — Civil Procedure and Limitation | Karnataka HC (2023)

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RFA No. 128 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD REGULAR FIRST APPEAL NO. 128 OF 2008 (INJ)

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BETWEEN:

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THE BANGALORE DEVELOPMENT AUTHORITY HEAD OFFICE, SANKEY ROAD KUMARA PARK (WEST),BANGALORE-560020 BY ITS COMMISSIONER. …APPELLANT

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(BY SRI.SACHIN B.S., ADVOCATE)

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AND:

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Digitally signed by C MALATHI Location: High Court of Karnataka

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SRI JAWAHARLAL S/O.RAJAPPA AGED ABOUT 44 YEAR R/AT MUTHAPPA GARDEN PUTTENAHALLI ROAD J.P.NAGAR, 16TH CROSS 6TH PHASE, BANGALORE-560076. …RESPONDENT

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(BY SRI. MAHESH PUTTARAJ., ADVOCATE [ABSENT])

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLIII RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:16.11.2006 PASSED IN O.S.NO.4177/1994 ON THE FILE OF THE IX ADDL. CITY CIVIL JUDGE, BANGALORE (CCH10), DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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RFA No. 128 of 2008

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JUDGMENT

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This appeal is filed by the defendant under Section 96 r/w. Order XLIII Rule 1 of Civil Procedure Code challenging the judgment and decree dated 16.11.2006 passed by the IX Additional City Civil Judge, Bangalore, in O.S.No.4177/1994, whereby the suit filed by the plaintiff has been decreed.

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For the sake of convenience, the parties are

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referred to as per their rankings before the trial court.

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The brief facts of the case of the plaintiff is that

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he was a tenant of the suit schedule property under the owner by name Muniyellappa. He has obtained licence from the Village Panchayat with an intention to run a small scale industry, has constructed a building, he has also taken electricity connection from the KPTCL, he has paid the tax to the Panchayat. Later, he purchased the said property from the owner, by a registered sale deed dated 09.03.1994, for a consideration of Rs.66,000/-. When he was in lawful possession of the suit schedule property, the

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RFA No. 128 of 2008

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defendant is trying to interfere into the peaceful

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possession and enjoyment of the suit schedule property. Hence, he filed a suit for injunction.

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After service of summons, even though defendant has appeared through counsel, they have not filed any written statement. Hence, on the basis of the pleadings of the parties, the following points were framed before the trial court:

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“1) Whether the plaintiff proves that he is in lawful possession of the schedule property on the date of the suit?

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2) Whether the plaintiff proves the alleged interference by the defendant?

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3) Whether the plaintiff is entitled for decree of permanent injunction as sought?

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4) To what decree or order?”

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To prove the case, plaintiff examined himself as PW-1 and produced 16 documents. Respondent neither

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RFA No. 128 of 2008

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examined any witnesses nor produced any documents. On consideration of the oral and documentary evidence, the

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trial court has answered issue Nos. 1 to 3 in the affirmative and decreed the suit. Being aggrieved by the same, defendant has filed this appeal.

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Learned counsel appearing for the defendant has

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contended that the Bangalore Development Authority (for short, ‘the BDA’) has acquired the schedule land by a preliminary notification dated 06.08.1988. The final notification has been issued on 03.11.1990. The award has been passed on 15.11.1993 and on 12.04.1994 the BDA has taken the possession. From that day, the BDA was in possession of the property, the suit filed by the plaintiff is not maintainable, the trial court passed the judgment and decree without any jurisdiction. In support of his contention, he has relied on the judgment of the

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Hon’ble Apex Court in the case of COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY AND

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RFA No. 128 of 2008

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ANOTHER vs. BRIJESH REDDY AND ANOTHER

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reported in (2013) 3 SCC 66. Hence, he sought for allowing the appeal.

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On 24.05.2023, learned counsel for the appellant

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was heard and none appeared for the respondent. To give one more opportunity, the matter was posted to today. Today also, none appeared for the respondent/plaintiff. Perused the impugned order and the original records.

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The case of the plaintiff is that one Muniyellappa is the owner of the suit schedule property. The plaintiff was in possession of the property as a tenant. He has constructed a building with an intention to run a small scale industry. He has taken electricity connection from the KPTCL and he has also paid tax to the village panchayat. On 09.03.1994, by a registered sale deed he has purchased the said property for a consideration of Rs.66,0000/- from the erstwhile owner - Sri Muniyellappa. From that day, he was in possession of the property and

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RFA No. 128 of 2008

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the defendant is trying to interfere into the possession of

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the suit schedule property. Hence, he has filed the suit.

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Even though the defendant has appeared through counsel they have neither filed any written statement nor examined any witnesses. For the first time, before this Court, the defendant has filed an application along with the documents and contended that the suit schedule property is acquired by the BDA by issuing necessary notification under the BDA Act and contended that the suit is not maintainable in view of the judgment of the Hon’ble Apex Court in the case of COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY (supra).

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The Hon’ble Apex Court in para 18 has held as hereinbelow:

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“18. It is clear that the Land Acquisition Act is a complete Code in itself and is meant to serve public purpose. By necessary implication, the power of civil Court to take cognizance of the case under Section 9 of CPC stands excluded and a civil court

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RFA No. 128 of 2008

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has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil Court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self imposed restrictions on their exercise of extraordinary power.”

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In the case on hand, even though the appellant/defendant appeared through counsel before the trial court, they have not filed any objections and they have not taken any contention before the trial court that the suit is not maintainable.

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In the very same judgment relied upon by the learned counsel for the appellant, i.e., COMMISSIONER,

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BANGALORE DEVELOPMENT AUTHORITY (supra), the

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Hon’ble Apex Court has held as under in paragraph 14:

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RFA No. 128 of 2008

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“14. Section 9 of the Code of Civil Procedure, 1908 provides jurisdiction to try all suits of civil nature excepting those that are expressly or impliedly barred which reads as under:

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“9. Courts to try all civil suits unless barred.The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”

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From the above provision, it is clear that courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The jurisdiction of civil court with regard to a particular matter can be said to be excluded if there is an express provision or by implication it can be inferred that the jurisdiction is taken away. An objection as to the exclusion of Civil Court’s jurisdiction for availability of alternative forum should be taken before the trial court and at the earliest failing which the higher court may refuse to entertain the plea in the absence of proof of prejudice.”

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In view of the above, now that the appellant has produced the notification issued by the BDA along with the relevant records to prove their case that the suit schedule

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RFA No. 128 of 2008

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property has been acquired by the BDA, under these circumstances, in the interest of justice, I am of the opinion that the matter requires to be remitted back to the trial court to re-consider the matter afresh after giving opportunity to the appellant to file the written statement and adduce evidence.

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Hence, the appeal is allowed. The judgment and decree dated 16.11.2006 passed in O.S.No.4177/1994 is set aside. The matter stands remitted back to the trial court, with a direction to re-consider the matter afresh, in accordance with law, after giving opportunity to both the parties to adduce evidence and produce necessary documents.

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All the contentions of the parties are left open.

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Sd/JUDGE

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List No.: 1 Sl No.: 60

The Bangalore Development Authority v. Sri Jawaharlal

Case brief

What is this about?

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The Bangalore Development Authority v. Sri Jawaharlal

Case brief

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