Dismissed

The Commissioner v. M/S Canara Jewellers

Karnataka HC21 Aug 2023RSA/1393/2007

Case brief

AI extract

What is this about?

This regular second appeal challenged an order directing a municipal corporation to refund a penalty. The court held that despite no prayer for refund, the appellate court could mould relief under Order VII Rule 7 CPC to restore the status ante after quashing the penalty order. The appeal was dismissed.

What did the court decide?

The appeal filed by the City Corporation was dismissed, upholding the direction for the refund of Rs.25,900/- to the plaintiffs.

The Commissioner Vs M/S Canara Jewellers — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:29730 RSA No. 1393 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO.1393 OF 2007 (DEC/INJ)

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BETWEEN:

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THE COMMISSIONER CITY CORPORATION MANGALURU

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…APPELLANT

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(BY SRI UMESHA A. FOR SRI A.K.VASANTH, ADVOCATES)

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AND:

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M/S.CANARA JEWELLERS HAMPANAKATTA MANGALURU - 1

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REP. BY ITS PARTNERS

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i) YOGISH PALKE AGED ABOUT 45 YEARS

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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ii) DHANANJAYA PALKE AGED ABOUT 42 YEARS

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M/S.KRISHNAPRASAD BOARDING & LODGING K.S.RAO ROAD HAMPANAKATTA MANGALURU - 1 REP. BY ITS PARTNERS

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i) YOGISH PALKE AGED ABOUT 45 YEARS

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ii) DHANANJAYA PALKE AGED ABOUT 42 YEARS

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NC: 2023:KHC:29730 RSA No. 1393 of 2007

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BOTH ARE R/AT JEAPPU MANGALURU - 1

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…RESPONDENTS

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(BY SRI KISHORE B.K., ADVOCATE FOR R-2; R-1 IS SERVED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE PRAYING TO SET ASIDE THE PORTION OF JUDGMENT AND DECREE DATED 20.12.2006 PASSED IN RA.NO.99/2003 ON THE FILE OF II ADDITIONAL CIVIL JUDGE (SR.DN.), MANGALURU, WHEREIN THE COURT HAS DIRECTED THE APPELLANT TO PAY A SUM OF RS.25,900/- TO THE RESPONDENTS/PLAINTIFF, THE AMOUNT COLLECTED AS PER THE REVISED LICENCE DATED 30.07.1987 AND ETC.

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

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JUDGMENT

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This appeal is preferred by the defendant questioning the portion of judgment and decree dated 20.12.2006 passed by II Additional Civil Judge (Sr.Dn.), Mangaluru in R.A.No.99/2003 dismissing the cross-objection filed by the respondentdefendant and directing the appellant herein-defendant to pay a sum of Rs.25,900/- to the respondent herein-plaintiffs and confirmed the judgment and decree dated 21.01.2003 passed by the Principal Civil Judge (Jr.Dn.), Mangaluru, D.K. in O.S.No.676/2001.

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NC: 2023:KHC:29730 RSA No. 1393 of 2007

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Parties shall be referred to as per their status before the trial Court.

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The plaintiffs filed a suit against the defendant for the relief of declaration to declare that the endorsement dated 20.10.2001 issued in proceedings bearing No.E2:BA:155/83-84 by the defendant as illegal, arbitrary, violative of principles of natural justice, null and void-ab-initio and unenforceable under the law and to set-aside the same and for consequential permanent prohibitory injunction restraining the defendant, its men and servants, subordinates and anybody claiming through or under it from enforcing the endorsement dated 20.10.2001 issued in the proceedings bearing No.E2:BA:155/83-84.

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It is the case of the plaintiffs that plaintiff No.1 acquired the suit 'A' schedule properties with building by virtue of registered sale deeds dated 12.01.1982 and 30.08.1954. Pursuant to the acquisition, plaintiff No.1 initiated to construct a new commercial building by demolishing two existing

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buildings and accordingly, applied for issuance of commencement certificate to Mangaluru Urban Development Authority and for building licence with plan to the defendant in

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4 - NC: 2023:KHC:29730 RSA No. 1393 of 2007

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favour of plaintiff No.2 by producing all necessary documents required for grant of such permission and commencement.

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4.1 After perusal of such documents, Mangaluru Urban Development Authority had issued commencement certificate and the defendant issued the licence with approval plan in favour of plaintiff No.2. However, in the licence issued by the defendant, certain specific conditions has been imposed that the construction should be commenced only after evicting the tenants occupied in the building and with regard to remaining portion of the eastern side building, it allowed to construct the building by demolishing the old existing building. Based on permission granted by the defendant, the plaintiffs started to construct building by demolishing the old existing buildings and also initiated eviction case against the tenants, who had occupied the remaining western portion of the building and accordingly, vacated by way of execution of decree. Pursuant to which, while constructing the building as per the plan, some minor deviation took place, due to which, the defendant issued a revised licence in the year 1987 by collecting penalty of Rs.25,900/-.

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5 - NC: 2023:KHC:29730 RSA No. 1393 of 2007

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4.2 This being the state of affairs, the tenants of the plaintiffs challenged the licence of the year 1987 issued by the defendant before this Court and this Court referred the matter to the defendant and pursuant to the reference made by this Court to the defendant, an order came to be passed to demolish the portion, which was in violation of the sanctioned plan.

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4.3 Being aggrieved by the said order, the plaintiffs preferred an appeal before the existing administrator, which came to be dismissed. Against which, a writ petition came to be filed before this Court and this Court allowed and remanded the matter to the Standing Committee of the defendant.

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4.4 The defendant issued notice-cum-endorsement bearing No.E2:BA:155/83-84 dated 20.10.2001 to the plaintiffs calling upon them to pay Rs.51,144/- within three days from the date of receipt of the same. Being aggrieved, the plaintiffs challenged the same by way of a declaratory suit against the endorsement dated 20.10.2001 as null and void. Thereafter, plaintiff No.2 was given licence to erect a commercial building in T.S.No.33/A1A, 33/A1B, 33/B2 of 14^th Ward of the total area

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NC: 2023:KHC:29730 RSA No. 1393 of 2007

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of 1061.25 sq.mtrs. as per the building licence No.E1/BA:155/83-84 dated 10.05.1984 and a sum of Rs.2,134/- was collected by way of fine. The defendant explained the circumstances for making the said demand by way of endorsement and the same to be corrected in accordance with law as plaintiff No.2 violated the revised plan and constructed the basement/car parking which contradicted the terms and conditions of the licence. Therefore, the same being in violation of the revised plan, the plaintiffs would not be entitled to the licence and accordingly, the defendant got issued notice-cum-endorsement, failing which, the portion of building already constructed would be demolished as per the provisions of the Karnataka Municipal Corporations Act, 1976. The suit preferred by the plaintiffs came to be dismissed vide order dated 21.01.2003, which came to be challenged by the plaintiffs before the first Appellate Court and the first Appellate Court dismissed the appeal vide order dated 20.12.2006 and consequently, confirmed the judgment and decree passed by the trial Court. However, directed the defendant to refund a sum of Rs.25,900/- to the plaintiffs.

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7 - NC: 2023:KHC:29730 RSA No. 1393 of 2007

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4.5 Being aggrieved by the said order of the first Appellate Court directing the defendant to pay Rs.25,900/- to the plaintiffs, despite dismissing the appeal and confirming the order of the trial Court, the defendant is in the second appeal before this Court.

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After hearing both learned counsels for the parties, this Court vide order dated 27.10.2010 admitted the appeal to consider the following substantial question of law:

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"Whether the Appellate Court was justified in ordering the defendant to pay Rs.25,900/- even though the plaintiff has not sought for any monetary relief in the suit?"

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I have heard learned counsel for appellant-defendant and respondents-plaintiffs.

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It is the vehement contention of learned counsel for appellant-defendant that the impugned order passed by the first Appellate Court directing the defendant to pay a sum of Rs.25,900/- to the plaintiffs is illegal, arbitrary and erroneous and the same is required to be set-aside. It is his further contention that the first Appellate Court has not appreciated the material evidence both oral and documentary and has

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8 - NC: 2023:KHC:29730 RSA No. 1393 of 2007

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passed an order, despite there being no specific prayer with regard to monetary compensation against the defendant. It is also his contention that the first Appellate Court has failed to take into consideration the cross-objection filed by the defendant before the first Appellate Court and the same came to be dismissed, which is illegal and contrary to the law and facts. He further contends that the first Appellate Court has not given any cogent justifiable reasons in dismissing the crossobjection preferred by the defendant and under what circumstances, a sum of Rs.25,900/- was directed to be paid by the defendant.

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7.1 It is further contended by learned counsel that there

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is no specific prayer made by the plaintiffs with regard to any monetary compensation. The same having not been granted by the trial Court, it could not have been granted by the first Appellate Court also. The Court could not have ventured into granting the relief which has not been sought for by the plaintiffs. On these grounds, he contends that the appeal deserves to be allowed and the substantial question of law requires to be considered and decided by this Court.

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NC: 2023:KHC:29730 RSA No. 1393 of 2007

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Per contra, learned counsel representing the

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respondents-plaintiffs vehemently contends that though their suit has been dismissed by the trial Court, so also, by the first Appellate Court confirming the judgment and decree of the trial Court, the first Appellate Court has directed the defendant to refund a sum of Rs.25,900/- to the plaintiffs, being the fine amount collected by the defendant for violation of terms and conditions of the revised licence.

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8.1 It is his further contention that when there was deviation in the construction of building, the plaintiffs to regularise the same, had applied before the defendant and the defendant rejected the claim of the plaintiffs. Against the order of the defendant, the plaintiffs filed an appeal before the Standing Committee and the Standing Committee passed an order in favour of the plaintiffs and regularised the construction of the building by imposing a fine of Rs.25,900/-. The plaintiffs have also paid the said fine amount of Rs.25,900/- to the defendant for issuing the revised sanctioned plan and for having violated the terms and conditions of the earlier plan. This aspect of the matter came up before this Court. This Court has set-aside the order of the Standing Committee in

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10 - NC: 2023:KHC:29730 RSA No. 1393 of 2007

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W.A.No.10093/1998. Therefore, in view of quashing of the order of the Standing Committee imposing a fine of Rs.25,900/-, the defendant is liable to refund the said fine amount to the plaintiffs.

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Having heard the learned counsel for appellantdefendant and learned counsel for respondents-plaintiffs and perused the material placed on record, it is relevant to note that admittedly, the Standing Committee found certain deviations in the construction of the building and therefore, imposed penalty of Rs.25,900/- on the plaintiffs as per Ex.P8 and based on which, the plaintiffs paid the said fine amount of Rs.25,900/- to the defendant. But apparently, it is also admitted that the order of the Standing Committee has been questioned and the same came to be cancelled by this Court in W.A.No.10093/1998. Considering the same, the first Appellate Court ordered for refund of penalty amount collected by the defendant in the guise of there being deviation and violation of the sanctioned plan, which is not in dispute. When such being the case, the only question that arise for consideration of this Court is - "whether the first Appellate Court has the jurisdiction to order for refund of amount of Rs.25,900/- by the

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11 - NC: 2023:KHC:29730 RSA No. 1393 of 2007

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defendant?" and the substantial question of law i.e. raised is - "whether the Appellate Court was justified in ordering the defendant to pay Rs.25,900/- even though the plaintiffs have not sought for any monetary relief in the suit?". In order to consider this, it would be relevant to extract Order VII rule 7 which reads as under:

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"7. Relief to be specifically stated.─Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."

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Order VII Rule 7 of CPC confers powers on the Court

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to mould the relief in a given situation. Though the plaintiffs have not made any specific prayer with regard to claiming of refund of the amount of Rs.25,900/- having paid as penalty to the defendant for the revised sanctioned plan, the same is mentioned in the plaint, the first Appellate Court, on considering the factual situation, has held that this amount having been collected by the defendant towards penalty for

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NC: 2023:KHC:29730 RSA No. 1393 of 2007

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deviation and valuation of the sanctioned plan and having considered the same, this Court in W.A.No.10093/1998 set aside and cancelled the same, the question of there being revised plan and violation would not arise as the same has been rectified by the plaintiffs to their status ante . Therefore,

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on the basis of the order passed by this Court in W.A.No.10093/1998, wherein the order of the Standing Committee came to be cancelled, the first Appellate Court has ordered and directed the defendant to refund the amount of Rs.25,900/- to the plaintiffs, which was directed against the revised sanctioned plan and for violation of the original sanctioned plan for deviation and construction, which admittedly has been corrected and rectified by the plaintiffs.

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Under the circumstances, the powers vested with the Courts cannot be taken away for the reason that there is no prayer made by the party in the suit or in the appeal. The provisions of Order VII Rule 7 of CPC stated supra is clearly apparent that certain powers vested with the Courts is to provide equitable relief to the aggrieved party, be it, the plaintiff or the defendant. The Apex Court in the case of

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13 -

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NC: 2023:KHC:29730 RSA No. 1393 of 2007

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U.P.State Brassware Corpn. Ltd. v. Udai Narain Pandey

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reported in AIR 2006 SC 586 at para-40 has held as under:

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"40. It is one thing to say that the court interprets a provision of a statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as the parties may be found to be entitled to in equity and justice. If that be so, the court's function as court of justice would be totally impaired. Discretionary jurisdiction in a court need not conferred always by a statute."

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In view of the above, it is apparently clear that the first Appellate Court has exercised its discretionary power based on certain factual aspects of the order passed by this Court in W.A.No.10093/1998 setting aside the order of the Standing Committee and canceling the same and ordered the defendant to refund a sum of Rs.25,900/-by way of cost for issuance of the revised sanctioned plan. Therefore, I do not find any cogent reason to differ in opinion on the order passed by the first Appellate Court directing the defendant to refund the amount of Rs.25,900/- by way of cost which would be the relief moulded by the first Appellate Court. Accordingly, the

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NC: 2023:KHC:29730 RSA No. 1393 of 2007

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substantial question of law is answered accordingly in favour of the plaintiffs as the first Appellate Court or the trial Court would have the discretionary relief in granting or moulding. Therefore, I do not find any reason to interfere with the order passed by the first Appellate Court. Hence, the appeal is dismissed .

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Sd/JUDGE

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The Commissioner v. M/S Canara Jewellers

Case brief

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The Commissioner v. M/S Canara Jewellers

Case brief

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