Dismissed

Sri Harikrishna S K v. Sri Dinesh Himbale

Karnataka HC13 Sept 2023RSA/1131/2021

Case brief

AI extract

What is this about?

The Karnataka High Court, in a second appeal under Section 100 of the CPC, dismissed the petition challenging the dismissal of a suit for damages and mandatory injunction. The Court held that the lower courts acted reasonably in addressing the pleadings and evidence, including aspects of malicious prosecution and property dispute, finding no perversity requiring interference.

What did the court decide?

The appeal filed under Section 100 of the CPC is dismissed.

Sri Harikrishna S K Vs Sri Dinesh Himbale — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:33230 RSA No. 1131 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.1131 OF 2021 (INJ)

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BETWEEN:

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SRI HARIKRISHNA S K AGED ABOUT 52 YEARS, S/O. LATE. VENKATARAMANA, R/AT NO. H.NO. 9-4-151, BOBBARYA LANE, NEAR WOOD LAND RESTAURANT, SHIVALLI VILLAGE, UDUPI CITY, UDUPI TALUK AND DISTRICT- 576101

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MR. SHYAMALA

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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AGED ABOUT 51 YEARS W/O. HARIKRISHNA S K, R/AT NO. H.NO. 9-4-151, BOBBARYA LANE, NEAR WOOD LAND RESTAURANT, SHIVALLI VILLAGE, UDUPI CITY, UDUPI TALUK AND DISTRICT – 576101

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SMT. SAROJA V BHAT AGED ABOUT 75 YEARS W/O. LATE. VENKATARAMANA, R/AT NO. H.NO. 9-4-151, BOBBARYA LANE, NEAR WOOD LAND RESTAURANT,

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2 - NC: 2023:KHC:33230 RSA No. 1131 of 2021

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SHIVALLI VILLAGE, UDUPI CITY, UDUPI TALUK AND DISTRICT. 576101

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…APPELLANTS

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(BY SRI HAREESH BHANDARY T, ADVOCATE)

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AND:

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SRI DINESH HIMBALE S/O. LATE. B SANJEEVA SHET AGED ABOUT 43 YEARS R/AT NO. H.NO. 9-4-151, BOBBARYA LANE, NEAR WOOD LAND RESTAURANT, SHIVALLI VILLAGE, UDUPI CITY, UDUPI TALUK AND DISTRICT- 576101

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MR. SUNITHA HIMBALE W/O. SRI. DINESH HIMBALE, AGED ABOUT 39 YEARS R/AT NO. H.NO. 9-4-151, BOBBARYA LANE, NEAR WOOD LAND RESTAURANT, SHIVALLI VILLAGE, UDUPI CITY,

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UDUPI TALUK AND DISTRICT- 576101

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…RESPONDENTS

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.09.2021 PASSED IN R.A.NO.81/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, UDUPI AND ETC.

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

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J U D G M E N T

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This matter is listed for admission. Heard the learned counsel appearing for the appellant.

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The case of the plaintiffs/appellants before the

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Trial Court that the plaintiffs are using the public lane situated behind their house to ingress and egress to his house along with other public and also the contention of the plaintiff that defendant No.1 has illegally put up the gate across the said lane restraining the plaintiffs from making use of the peaceful possession and enjoyment of the said public lane and also the case of the plaintiffs that a criminal prosecution has initiated against the plaintiffs hence, the plaintiffs are entitled for damages for malicious prosecution and also sought for mandatory injunction. The defendants appeared and filed the written statement contending that the Court has no jurisdiction to entertain the suit. The Trial Court having considered the pleadings

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NC: 2023:KHC:33230 RSA No. 1131 of 2021

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of the parties, framed the issues and also allowed the parties to lead their evidence. Thereafter, the Trial Court having considered both oral and documentary evidence placed on record dismissed the suit of the plaintiffs. Being aggrieved by the said judgment, an appeal was filed before the First Appellate Court and the First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record dismissed the appeal and confirmed the judgment of the Trial Court. Hence, this second appeal is filed before this Court.

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The counsel for the appellants not argued

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seriously with regard to declining to grant the of relief of mandatory injunction. The main contention of the counsel for the appellants that the Trial Court has committed an error in not considering the damages which has been claimed for the malicious prosecution in initiating the criminal prosecution against the appellants. The counsel would vehemently contend that when the suit is filed for the relief of damages that too on the basis of malicious

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prosecution, the Trial Court ought to have framed the proper issue but only framed the issue for damages and also not dealt with the matter in a proper perspective. The counsel would vehemently contend that in the appeal also, the First Appellate Court has not taken the grounds urged before the First Appellate Court and committed an error in dismissing the same. Hence, it requires interference of this Court.

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The counsel in support of his arguments relied upon the judgment reported in AIR 1978 KERALA 111 in the case of T SUBRAMANYA BHATTA vs A KRISHNA

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BHATTA with regard to ingredients to be proved for malicious prosecution and Kerala High Court also held that on facts defendant liable for malicious prosecution once the ingredients to be proved by the plaintiff in an action for malicious prosecution and the counsel referring this judgment would vehemently contend that not dispute the fact that criminal case has been registered and though acquitted, the Trial Court committed an error in taking

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note of the fact that nothing is held with regard to that the very criminal prosecution is fabricated one and only on beyond reasonable doubt, they have acquitted and the very approach of the Trial Court is erroneous.

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Having heard the learned counsel appearing for

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the appellants and also on perusal of the material on record it discloses that the suit is filed for the relief of damages as well as mandatory injunction and in paragraphs 2, 3, 4 and 5 of the plaint it is pleaded with regard to that the defendants have illegally put up the gate across the said lane restraining the plaintiffs from making use of the peaceful possession and enjoyment of the said lane and hence, sought for the relief of mandatory injunction. Now, the counsel is not seriously contend with regard to the rejection of the suit for the relief of mandatory injunction. The main contention of the appellants that not framed a proper issue with regard to malicious prosecution is concerned and the Trial Court only framed the issue that whether they are entitled for the

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damages of Rs.25,100/- from the defendants. No doubt, in the pleadings, damages are claimed for the malicious prosecution. When the issue is framed but not used the word ‘damages for malicious prosecution’, the same cannot be contended that it is not a proper issue. But when the parties have understood the case and when the specific pleadings are made in the plaint and the defendants have also filed the written statement and damages are also claimed for the malicious prosecution, the Trial Court while dealing with the Issue Nos.3 and 4, the issue with regard to the damages for malicious prosecution is taken note of. The plaintiffs have to prove that the defendants in collusion had prepared a false sketch to unlawfully grab the property of the plaintiffs and to overcome the same, the plaintiffs preferred an appeal before the ADLR under appeal No.6/2009-2010 to prove the sketch annexed to the sale deed as illegal and also contend that there has been considerable amount spent by the plaintiffs towards the litigation expenses only because of the act of the defendants.

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The very contention of the plaintiffs is with

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regard to the preparing of a false sketch under the sale deed dated 13.11.2005 and it is not in dispute that an appeal was pending and the plaintiffs also participated in the said matter. Hence, it is clear that there is a civil dispute between the parties and the appeal is pending before the ADLR. The very contention of the counsel that the document has been created while preparing the sketch annexed to the sale deed. The other contention is with regard to the litigation expenses in respect of C.C.No.4513/2008 and said criminal proceedings is also initiated by the defendants and ultimately, the plaintiffs have been acquitted in the said case. The Trial Court has considered these aspects and in paragraph 19 held that the litigation regarding HRC proceedings is between the said Sagri K VAsudeva Bhat and the defendants. The Trial Court also taken note of the contention of the plaintiffs itself that the defendants have been lawfully evicted from the said property by said Sagri K Vasudeva Bhat and also taken note that the plaintiffs are not at all personally

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interested in the property belonging to SAgri K Vasudeva Bhat. But their contention that there is a dispute between the said Sagri K Vasudeva Bhat and the defendants regarding the Door numbers of their respective properties.

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The subject matter is whether the plaintiffs and the defendants are the parties to the proceedings and the Trial Court has taken note of the said fact into consideration particularly, malicious prosecution in respect of initiation of criminal proceedings and also an observation is made that they have been acquitted on the ground that the prosecution has failed to prove their case beyond reasonable doubt and also categorically made an observation that there is no any substance that entire case is baseless and fabricated one. When such finding is given in the criminal case also, I do not find any error committed by the Trial Court in answering the issue with regard to damages. But the very contention of the counsel for the appellants that the issue has not been properly framed. But, when the parties have understood the lis between

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them and also filed the written statement, merely missing the word of ‘malicious prosecution’ in the issue of claiming of damages, I do not find any error committed by the Trial Court in framing the issue as contended by the counsel for the appellants and hence, the question of admitting the appeal and framing the substantial question of law does not arise when the parties have understood the lis between them and participated in the proceedings and in the second appeal, on that ground, this Court cannot frame any substantial question of law as contended by the counsel for the appellants and hence, I do not find any perversity in the finding of both the Courts with regard to the dismissal of the suit is concerned and both the Courts have taken note of the material on record. When both the Courts have passed the reasoned order and given anxious consideration to the material on record and in the absence of any perversity, the question of invoking Section 100 of CPC does not arise.

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11 -

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In view of the discussions made above, I pass

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the following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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Sri Harikrishna S K v. Sri Dinesh Himbale

Case brief

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Sri Harikrishna S K v. Sri Dinesh Himbale

Case brief

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