Dismissed

T. S. Venkateshaiah v. the Chief Secretary

Karnataka HC12 Aug 2024MSA/55/2022

Case brief

AI extract

What is this about?

This court dismissed a second appeal filed by plaintiffs challenging the dismissal of their ex-parte appeal by the first appellate court. The court rejected the plea that notice under Section 80(2) CPC was dispensed with, holding that providing the Government an opportunity to contest the suit was legally correct and no miscarriage of justice occurred.

What did the court decide?

Appeal dismissed; no costs.

T. S. Venkateshaiah Vs the Chief Secretary — Civil Procedure and Limitation | Karnataka HC (2024)

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NC: 2024:KHC:32351 MSA No. 55 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 55 OF 2022

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BETWEEN:

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T. S. VENKATESHAIAH S/O. LATE T. K. SATHYANARAYANA SHETTY, AGED ABOUT 58 YEARS, BUSINESSMAN AND AGRICULTURIST

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T. S. MALLIKARJUNA S/O. LATE T. K. SATHYANARAYANA SHETTY, AGED ABOUT 55 YEARS, BUSINESSMAN AND AGRICULTURIST

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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BOTH ARE RESIDING AT CHELUR VILLAGE, CHELUR HOBLI, BAGEPALLI TALUK, CHIKKABALLAPURA DISTRICT-563 124.

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…APPELLANTS

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(BY SRI. PRITHVI RAJ, ADVOCATE FOR SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)

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AND:

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THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU-560 001.

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NC: 2024:KHC:32351 MSA No. 55 of 2022

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THE TAHASILDAR BAGEPALLI TALUK, BAGEPALLI-561 207.

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…RESPONDENTS

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(BY SRI. T.P. MALIPATIL, AGA)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1 (U) OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 11.03.2022 PASSED IN RA.NO.24/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAGEPALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 12.06.2018 PASSED IN OS.NO.341/2017 ON THE FILE OF THE CIVIL JUDGE AND JMFC, BAGEPALLI, DECREEING THE SUIT FOR INJUNCTION AND REMANDING THE MATTER BACK TO THE TRIAL COURT BY GIVING OPPORTUNITY TO DEFENDANT TO FILE WRITTEN STATEMENT AND TRIAL COURT IS DIRECTED TO DISPOSE OFF THE CASE ON MERITS.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Shri Prithvi Raj, for

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Shri G.Balakrishna Shastry, learned Counsel for the appellants and Shri T.P.Malipatil, learned AGA for the respondents.

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NC: 2024:KHC:32351 MSA No. 55 of 2022

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The plaintiffs in O.S.No.341/2017 are the

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appellants. They filed a suit for permanent injunction against the respondents on the file of the Senior Civil Judge, Bagepalli. The said suit was decreed ex-parte in the absence of the written statement being filed by the defendants.

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Being aggrieved by the same, the defendants therein filed an appeal in R.A.No.24/2019. Learned Judge in the first appellate Court after securing the records noted that no written statement was filed on behalf of defendants, followed the judgment of the Hon'ble Apex Court in the case of Coal Mines P.F.Commissioner Thr. Board of Trustee Vs. Ramesh Chandra JHA reported in 2012 (2) SCR 887, noted the requirements of law for issuance of prior notice especially when the Government is

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a party and also noted the principles of law enunciated in the case of T.L.Nagendra Babu Vs. Manohar Rao Pawar reported in ILR 2005 KAR 884, set aside the ex-parte decree and remitted the matter to the trial court for fresh

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NC: 2024:KHC:32351 MSA No. 55 of 2022

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disposal in accordance with law, after affording an opportunity for the defendants to file the written statement.

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The said order is called in question by the plaintiffs in this appeal.

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Reiterating the grounds urged in the appeal memorandum, Shri Prithvi Raj, learned Counsel for the appellants vehemently contended that first appellate court has grossly erred in remitting the matter to the trial court for fresh disposal resulting in miscarriage of justice and sought for allowing the appeal.

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Per contra, learned AGA supports the impugned judgment.

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Having heard the parties, this Court perused the material on record meticulously. On such perusal of the material on record, it is crystal clear that having regard to the urgency pleaded, prior notice under Section 80 of CPC was dispensed with by exercising the power under Section

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NC: 2024:KHC:32351 MSA No. 55 of 2022

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80(2) of CPC. Thereafter, learned trial Judge has proceeded to pass the order as prayed for, which is incorrect. Thereafter, notice was issued to the defendants.

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Learned Additional Government Pleader appeared

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and did not choose to file the written statement and the suit was dismissed ex-parte.

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The learned Judge in the first appellate court was of the opinion that an opportunity to be given for the defendants to file the written statement & contest the suit and thus, remitted the matter. May be the first appellate court has not taken into consideration dispensation of notice by exercising the power under Section 80(2) of CPC. Therefore, even though suitable reasons assigned in the impugned judgment by the first appellate court insofar as the prior notice as is contemplated under Section 80(2) of CPC cannot be taken into consideration, the fact remains that the decree being ex-parte decree, especially, the

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Government being the defendants, providing an opportunity for the Government to file the written

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NC: 2024:KHC:32351 MSA No. 55 of 2022

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statement and contest the suit in accordance with law

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cannot be faulted with.

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