Shri. Nandakumar S/O Damodar Naidu Vs Hubballi-Dharwad Municipal Corporation

THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER 43 RULE 1(U) OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 22.12.2020 PASSED IN R.A.NO.97/2019 BY THE II ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, WHEREBY ALLOWED THE SAID APPEAL AND REVERSED THE JUDGMENT AND DECREE DATED 18.07.2019 PASSED IN O.S.NO.589/2012 BY THE II ADDITIONAL CIVIL JUDGE AND JMFC-III, HUBBALLI, AND THEREBY REMANDING THE MATTER TO THE TRIAL COURT FOR FRESH DISPOSAL, BY ALLOWING THIS APPEAL AND THEREBY RESTORING THE SAID

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JUDGMENT AND DECREED DATED 18.07.2019 PASSED IN O.S.NO.589/2012 BY THE II ADDITIONAL CIVIL JUDGE AND JMFC-III, HUBBALLI, WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This appeal is filed by the plaintiff challenging the judgment and decree passed in R.A.No.97/2019, by the

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II Addl. Senior Civil Judge, Hubballi, dated 22.12.2020, thereby the judgment and decree passed in

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O.S.No.589/2012, is set aside and remanded the matter to the trial Court by giving an opportunity to defendant No.2 to file written statement and contest the case.

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For the purpose of convenience and easy

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reference, status of the parties is referred to as per their ranking before the trial Court.

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The plaintiff/appellant has filed suit for

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declaration, possession and mandatory injunction by pleading facts that the plaintiff is owner of the suit schedule property which is encroached by defendant No.2 University.

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In the suit defendant No.2 was represented by advocate, but did not choose to file written statement and contest the suit. Only defendant No.1 HDMC has filed the written statement and contested the suit. The trial Court after considering the evidence on record has decreed the suit with costs.

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Thereafter, after passing the decree, defendant No.2 woken up and preferred appeal in R.A.No.97/2019 before the First Appellate Court. The First Appellate Court has observed that joint survey is required to be conducted through survey department and moreover, defendant No.2 has not filed the written statement. Therefore, by giving an opportunity to defendant No.2 to file written statement, allowed the appeal with cost of Rs.5,000/- payable to the plaintiff and remanded the suit to the trial Court, with a direction to dispose of the suit as per law. This order of remand is challenged by the plaintiff.

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Learned counsel for the plaintiff/appellant submitted that the 2^nd defendant is none other than a prestigious Law University in the Karnataka State and conduct of the 2^nd defendant is not appreciable in not

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choosing to contest the suit. Though the 2^nd defendant has received summons in the suit and also engaged service of advocate, but the 2^nd defendant for the reasons best known to it, has not filed the written statement and not contested the suit. Inevitably the trial Court has passed the judgment and decree on 18.07.2019 after appreciating the evidence on record. Therefore, justified the judgment and decree passed

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by the trial Court and prays to allow the appeal by confirming the judgment and decree of the trial Court.

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The 2^nd defendant University has woken up and preferred appeal in R.A.No.97/2019 before the First Appellate Court. The First Appellate Court with all its magnanimity by giving one more opportunity to the 2^nd defendant to file written statement, allowed the said appeal by setting aside the judgment and decree passed in the suit and remanded the suit to the trial Court for fresh consideration in accordance with law.

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Thus, in this way the plaintiff is made to approach once again unnecessarily to the trial Court, at no fault of the plaintiff. The judgment and decree passed by the trial Court

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in the suit and also the order passed by the First Appellate Court both cannot be found fault with. But inevitably there should not be one sided judgment. The First Appellate Court has remanded the suit to the trial Court. It is because of the conduct of officials of the 2^nd defendant, the situation arises remanding the suit to the trial Court unnecessarily causing burden on the plaintiff once again to contest the suit.

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The 2^nd defendant is Karnataka State Law University imparting education on law. But unfortunately the 2^nd defendant being University of Law has shown utter negligence and carelessness towards the case and to the Court. Even in this appeal also the 2^nd defendant is made as 2^nd respondent and has received notice in this appeal from this court, but has not made arrangement to make representation through advocate. This shows the manner in which the 2^nd defendant is doing administration. It is totally unwarranted and deprecated. The 2^nd defendant being University of Law itself is guilty of lethargic attitude and showing carelessness to the case when a serious allegation is

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made against the University that the University has encroached the property of the plaintiff.

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The 2^nd defendant being University of Law should be role model, but in this case the Court does not see any sign of being role model by the 2^nd defendant University. Therefore the plaintiff/appellant is once again constrained to approach the trial Court at no fault of him and learned counsel for appellant submitted that the plaintiff is now senior citizen of 70 years old. Therefore, once again compelling the plaintiff to approach the Court in the suit is nothing but causing hardship to the plaintiff. For this the 2^nd defendant University is entirely responsible. Therefore it is necessary to impose exemplary costs. Why the Court is intending to put exemplary cost is explained in the above discussion.

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Imposing heavy cost shall make the 2^nd

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respondent vigilant in future in prosecuting the cases, which are before the Court. Therefore though the appeal is liable to be dismissed, enabling the 2^nd defendant to file written statement and contest the suit, while dismissing the appeal,

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a cost of Rs.1,00,000/- (one lakh rupees) is to be imposed, payable by the 2^nd defendant University of Law to the plaintiff. Hence, I proceed to pass the following:

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ORDER

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i) The appeal is dismissed with costs of Rs.1,00,000/- (one lakh rupees) payable by the 2^nd defendant University to the plaintiff.

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ii) The 2^nd defendant shall pay the said costs to the plaintiff within a period of four weeks from the date of receipt of a copy of this judgment.

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iii) The plaintiff and defendants shall appear before the trial Court on 12.02.2025 without expecting notice from the Court.

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iv) The trial Court shall make every endeavour to dispose of the suit within a period of six months from 12.02.2025.

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v) The defendants shall co-operate with the trial Court for early disposal of the suit.