Allowed

Sri. Venkatanarayanamurthy v. Smt. Jayamma

Karnataka HC20 Sept 2024RSA/1540/2017

Case brief

AI extract

What is this about?

This Second Appeal challenges the First Appellate Court's order imposing Rs.1,00,000 costs due to the plaintiff's non-payment of court fees and non-submission of the decree. The High Court held that delay in drawing a decree is a formal defect not affecting its validity, and such costs were unjustified and illegal, allowing the appeal and quashing the cost order.

What did the court decide?

The cost order of Rs.1,00,000 imposed on the appellant-plaintiff by the First Appellate Court was set aside, and the trial court's decree for declaration and mandatory injunction was confirmed subject

Sri. Venkatanarayanamurthy Vs Smt. Jayamma — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:39030 RSA No. 1540 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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REGULAR SECOND APPEAL NO.1540 OF 2017 (DEC)

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BETWEEN:

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SRI VENKATANARAYANAMURTHY AGE 70 YEARS, S/O. LATE RAMAPANDITH, RESIDENT OF UGANAVADI VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT. SINCE DECEASED BY HIS LEGAL REPRESENTATIVES.

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1(a) SMT. SHAKUNTHALAMMA, AGED ABOUT 69 YEARS, W/O. LATE M.R. VENKATANARAYANAMURTHY,

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1(b) SRI V.N. SRIDHARA, AGED ABOUT 44 YEARS, S/O. LATE M.R. VENKATANARAYANAMURTHY,

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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BOTH ARE RESIDING AT DOOR NO.1062, EWS 5 METER WIDE ROAD, NEAR GOVT. SCHOOL, YELAHANKA NEW TOWN, BENGALURU – 560 064.

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1(C) SRI V.N. RAVI, AGED ABOUT 46 YEARS, S/O. LATE M.R. VENKATANARAYANAMURTHY, RESIDING AT NO.441/B, ‘SHREESHYLA’, 18^TH MAIN, 50 FEET ROAD, HANUMANTHANAGARA, BENGALURU – 560 019.

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(AMENDED AS PER VIDE COURT ORDER DATED 08/04/2019) ... APPELLANTS (BY SRI R. CHANDRANNA, ADVOCATE)

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NC: 2024:KHC:39030 RSA No. 1540 of 2017

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AND:

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SMT. JAYAMMA, AGE 49 YEARS, W/O. RAMAIAH, R/OF UGANAVADI VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT.

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... RESPONDENT

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(BY SMT. SOHANI HOLLA, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 27.06.2017 PASSED IN R.A.NO.15040/2016 ON THE FILE OF THE 5^TH ADDL. DIST. AND SESSIONS JUDGE, DEVANAHALLI, BENGALURU RURAL DISTRICT, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 04.03.2016 PASSED IN O.S.NO.2297/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI.

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

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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Plaintiff has approached this Court assailing the legality and correctness of the judgment and decree dated 27.06.2017 in R.A. No.15040/2016 on the file of the V Additional District and Sessions Judge, Devanahalli (‘the First Appellate Court’ for short), insofar as it relates to levying cost of Rs.1,00,000/- on the plaintiff-appellant, while disposing of the appeal and allowing I.A.No.2 filed by the appellant.

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NC: 2024:KHC:39030 RSA No. 1540 of 2017

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Parties herein are referred to as per their rank

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before the Trial Court for the sake of convenience.

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Suit for declaration and permanent injunction subsequently, by way of amendment, the plaintiff deleted the relief of permanent injunction and sought for relief of mandatory injunction and for possession. The father of the plaintiff purchased the vacant site bearing old VP No.43 measuring East-West towards North 61 feet and towards South 39 feet, North-South – 90 feet under registered sale deed dated 29.01.1958. The suit schedule property

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was a vacant site bearing old VP No.43 measuring EastWest-39 feet and North-South - 45 feet is the portion of the property purchased by the plaintiff’s father under registered sale deed dated 29.01.1958, in a family partition, the suit schedule property was allotted to the plaintiff and that the plaintiff is the owner in possession of the suit schedule property. The plaint avers that the defendant, without having right, title and interest over the suit property, obtained panchayath katha in her name,

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4 - NC: 2024:KHC:39030 RSA No. 1540 of 2017

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building licence to put up construction and has put up shed in the portion of the suit schedule site measuring EastWest 35 feet and North-South 26 feet.

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On notice, defendant appeared and filed written statement, inter alia, contending that from 1990, the defendant and her family members have been in possession and enjoyment of the suit property and perfected the title by way of adverse possession.

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The Trial Court on the basis of the pleadings

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framed the following issues:

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“1) Whether the plaintiff proves that, he is the absolute owner of the suit schedule property as contended in para no.2 and 3 of the plaint?

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2) Whether the plaintiff further proves that, the defendant has illegally got entered his name to the suit schedule property and has put up illegal construction over the same as contended in para no.4 to 6 of the plaint?

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3) Whether the defendant proves that, he has perfected his title over the suit schedule property

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5 - NC: 2024:KHC:39030 RSA No. 1540 of 2017

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by way of adverse possession as contended in para no.3 of the written statement?

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4) Whether the defendant further proves that, the plaintiff has given no objections to change the katha of the suit property in his name?

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5) Whether the defendant further proves that, the suit is hit by the principles of doctrine of estopple?

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6) Whether the plaintiff is entitled to the reliefs sought for?

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7) What order or decree?”

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In order to substantiate the claim, the plaintiff examined himself as P.W.1, one witness as P.W.2 and marked documents at Exs.P.1 to P.15. On the other hand, the defendant examined herself as D.W.1 and two witnesses as D.W.2 and D.W.3 and marked documents at Ex.D.1 to D.12.

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The Trial Court, on the basis of the pleadings,

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oral and documentary evidence, decreed the suit of the plaintiff, declaring the plaintiff as the absolute owner and

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by way of mandatory injunction, directed the defendant to demolish the existing illegal construction put up by the defendant, in the portion of the suit property and to hand over the vacant possession of the portion of the schedule site in favour of the plaintiff. Further, the plaintiff was directed to pay the Court fees on the relief of mandatory injunction and for possession, in the office.

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Aggrieved by the decreetal of the suit, the defendant preferred appeal before the First Appellate Court, the First Appellate Court, while re-appreciating and reconsidering the entire oral and documentary evidence, independently, held that it did not find any reasons for interfering with the judgment and decree of the Trial Court, further, since the plaintiff has not complied the mandatory requirement, the Court interfered on technical ground and passed an order allowing I.A.No.2 filed by the plaintiff under Section 151 CPC for payment of requisite Court fees, subject to payment of cost of Rs.1,00,000/payable to the defendant within one month, further

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holding that failing to comply with the order of paying Rs.1,00,000/-, the order automatically stands vacated.

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This Court, while admitting the appeal on

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28.07.2017, has framed the following substantial

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questions of law:

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“i) Whether the First Appellate Court was right in invoking the provisions of Order XX Rule 6(A) of CPC which contemplates only passing of decree within 15 days from the date of Judgment when there was no payment of additional Court Fee and Trial Court has not drawn up the Decree?

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ii) Whether the First Appellate Court was right and justified in levying exorbitant costs of Rs.1,00,000/- while disposing of the appeal of the respondent and allowing I.A.II filed by the appellant under Section 151 of CPC, without assigning any valid, cogent and proper reasons for levying such exorbitant amount?”

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Heard the learned counsel on both sides on the

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substantial questions of law framed by this Court.

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Order XX Rule 6A is pertaining to preparation of decree, which states that every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within 15 days from the date on which the judgment is pronounced. Sub-Clause (2) envisages an appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court, shall for the purposes of Rule 1 of Order XLI be treated as the decree, but as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.

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The First Appellate Court, though, was right in invoking the provisions of Order XX Rule 6A, while doing so, the First Appellate Court was not justified in levying the exorbitant cost of Rs.1,00,000/- and directing the plaintiff-appellant to pay the said amount to the defendant, this is said so by this Court, as there is nothing in Order XX to say that the delay in drawing up of decree

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will have any adverse effect on its validity, if the judgments remain, the decree too, and delay in preparation of decree are nothing to do with the merit of the adjudication.

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The Co-Ordinate Bench of this Court, in the case of Devakka Vs. Veerappa Virbasappa Palled¹ , (Devakka) has observed that the Karnataka Court fees and Suit Valuation Act, 1958 does not prohibit the Court from collecting Court fees even after it makes a decree and at paragraph No.23 has held as under:

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“23. Whatever may be the infirmity or irregularity committed by defendant-4 or by the Dharwad Court, it cannot be disputed that Court had made a preliminary decree in favour, of defendant-4 of her one-fourth share in the plaint schedule properties. In all the appeals filed by defendants 1 to 3, the last one being before the Supreme Court, that decree of the Dharwad Court was affirmed. In order to overcome the earlier irregularity, if any, defendant-4 filed Diary Application No.29 of 1961 on which the Dharwad Court made an order in her

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1 ILR 1986 KAR 1701

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favour. After all, the Court Fee Act does not prohibit a Court from collecting court-fee even after it makes a decree. Section 149 of the CPC and other enabling provisions empowered the Dharwad Court to make its order on Diary Application No.29 of 1961 and ignore the infirmities it had earlier committed and give life and validity to the decree earlier made in favour of defendant-4. On any view, the objections raised by defendants 1 to 3 were extremely technical in nature and did not affect the competence of the Court or the validity of the order made in Diary Application No.29 of 1961.”

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The Gauhatti High Court in Md. Serajuddin vs

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Md. Abdul Khalique² has observed the delay in preparation of the decree would not merit the

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adjudication.

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The First Appellate Court has misinterpreted the decision in Devakka’s case and has erred in levying cost of Rs.1,00,000/- while allowing I.A.No.2 filed by the appellant-plaintiff. The First Appellate Court failed to consider that non-drawing up of decree by the Trial Court,

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2 AIR 2005 GAU 40

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NC: 2024:KHC:39030 RSA No. 1540 of 2017

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does not by itself cause any inconvenience or injury or hardship to the defendant to prosecute her appeal before

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the First Appellate Court, even in the absence of the decree drawn up by the Trial Court, and thus, levying cost of Rs.1,00,000/- by the First Appellate Court, is wholly unjustified and illegal. The decree is for declaration and for possession, the defendant is all along in possession of the suit property and levying cost of Rs.1,00,000/- by the First Appellate Court, is punishing the plaintiff for obtaining the decree, the approach of the First Appellate Court is hyper technical and for the foregoing reasons, the substantial questions of law framed by this Court are answered in favour of the appellant and this Court pass the following:

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ORDER

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i. The regular second appeal is allowed.

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ii. Impugned judgment and decree of the First Appellate Court insofar as imposing cost of Rs.1,00,000/- on the appellant-plaintiff payable to the defendant is set

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aside.

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