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Kaleem Pasha v/s The Chief Secretary, Government of Karnataka & Others

    Regular Second Appeal No. 2117 of 2007

    Decided On, 08 March 2018

    At, High Court of Karnataka

    By, THE HONOURABLE DR. JUSTICE H.B. PRABHAKARA SASTRY

    For the Appellant: Niteesh, K.V. Narasimhan, Advocates. For the Respondents: Anitha, HCGP.



Judgment Text

(Prayer: This appeal is filed U/S. of 100 of CPC against the Judgment & Decree dated : 15.06.2004 passed in R.A. No. 48/2000 on the file of the Addl. District Judge, Hassan, dismissing the appeal filed against the Judgement and Decree dated : 26.09.2000 passed in OS. No. 38/1993 on the file of the Civil Judge (SR. DN.), Hassan.)

1. This is a plaintiff's appeal. The appellant herein has filed the original suit bearing O.S.No.38/1993 arraying the present respondents as defendants in the Court of the Civil Judge (Sr.Dn.), Hassan (henceforth for brevity referred to as the 'Trial Court') for recovery of a sum of Rs.61,400/- with interest thereupon from them.

2. The summary of the case of the plaintiff in the trial Court was that Luxury Taxi Cab bearing Regn.No.MYH-6566 originally belonged to one Ameer s/o Sabjan Sab, Hassan. During the routine inspection from the Motor Vehicle Inspector of the Regional Transport Office, Hassan on 24.12.1988, it was found that the tax due was not being paid by the owner of the vehicle, as such the said vehicle was seized and handed over to the Traffic Sub-Inspector, Hassan. On 08.08.1989, the 3rd defendant auctioned the said vehicle at Hassan Traffic Police Station. The said vehicle was purchased by one H.R.Shivashankar for a sum of Rs.20,200/-. The Registration Certificate of the said vehicle was transferred in the name of the auction purchaser - H.R.Shivashankar. The plaintiff purchased the said vehicle from the said auction purchaser H.R.Shivashankar for a sum of Rs.30,000/- and got his name entered in the R.C.Book on 18.08.1989. The plaintiff entered into Hire Purchase Agreement with M/s Punyakoti Auto Finance Corporation (R), Hassan and borrowed money for the purchase of the said vehicle under Hire Purchase Agreement on 29.08.1989. It is the further case of the plaintiff that for effecting necessary repairs to the said vehicle, he incurred an expense of Rs.8950/- and to obtain a temporary permit he has incurred additional expense. Thus, he has invested a total sum of Rs.41,400/- on the said vehicle in addition to its purchase value. According to the plaintiff, he was liable to the Finance Corporation with a sum of Rs.17,985/- w

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ith interest @ 21% on the said amount.

3. It is the further case of the plaintiff that the original R.C.owner of the said vehicle one Sri.Ameer filed a writ petition before High Court of Karnataka, Bengaluru in W.P.14605/89 challenging the auction sale held by defendants 3 and 4 under the provisions of Karnataka Motor Vehicle Taxation Rules. Plaintiff was also impleaded as a party in the said writ petition. Writ Petitioner also filed an interim application seeking seizure of the said vehicle pending disposal of the writ petition. The High Court passed an order on 04.12.1989 ordering for the seizure of the said vehicle. Accordingly, the defendants took possession of the said vehicle. The Writ Petition came to be disposed of on 20.02.1991 by holding that the auction sale was not in accordance with law and directed the defendant to handover the seized vehicle to the original R.C. owner/ writ petitioner Sri Ameer after collecting the entire tax dues and other amount, however, no orders were passed in the said Writ Petition with respect to plaintiff in the suit. Thus, the plaintiff was deprived of the vehicle purchased by him as well the amount spent by him towards purchase of the vehicle, its repair and maintenance etc. Thus, he claimed a sum of Rs.61,400/- holding the defendants liable to pay him the said amount.

4. It was defendant no.2 (respondent no.2 herein) who filed his written statement denying the various averments made by the plaintiffs. He specifically denied the alleged liability of the defendant to pay any amount to the plaintiff much less what is claimed by the plaintiff. Defendant also contended that the remedy available to the plaintiff was only to proceed against H.R.Shivashankar, the auction purchaser and not against the defendants. Defendant no.2 also took the contention that both the original R.C.owner - Sri.Ameer and auction purchaser - H.R.Shivashankar were necessary parties to the suit. As such, the suit was bad for non-joinder of necessary parties.

Based on the pleadings of the parties, the trial Court framed the following issues:

(1) Whether the plaintiff has got the vehicle MYH-6566 repaired at a cost of Rs.8,950-00?

(2) Whether the plaintiff has paid transfer charges, permit fee and tax totaling to Rs.2,450/-?

(3) Whether plaintiff has been deprived of the vehicle due to wrong acts of defendants 3 and 4?

(4) Whether plaintiff has sustained damages of Rs.20,000/-?

(5) Whether defendants are liable to pay the suit claim?

(6) Is the suit in time?

(7) Is the suit bad for non-joinder of necessary parties?

(8) Whether this Court has no jurisdiction to try the suit?

(9) To what reliefs plaintiff is entitled?

(10) What order?

5. On behalf of the plaintiff, 4 witnesses from Pws1 to 4 were examined and documents Exs.P.1 to P.11 were marked. On behalf of the defendants, one Mohammed Dasthgir was examined as DW1 but nodocuments were marked as exhibits. After hearing both sides and considering the materials placed before it, the trial Court by its judgment and decree dated 26.9.2000 answered issue nos.1, 2, 6 and 7 in affirmative and 3,4,5,8 in the negative dismissing the suit of the plaintiff.

6. Being aggrieved by the judgment and decree of the trial Court, the plaintiff preferred an appeal before the Court of Addl. District Judge at Hassan (henceforth for brevity referred to as the 'First Appellate Court') in R.A.48/00.

7. The First Appellate Court framed the following points for consideration:

(1) Whether the plaintiff is entitled for the amount of Rs.61,400/- as claimed by him in the plaint?

(2) Whether the defendants are liable to pay the suit claim to the plaintiff?

(3) Whether the suit is bad for non-joinder of necessary parties?

(4) Whether the judgment of the trial Court is erroneous and calls for interference by this Court?

(5) What order?

8. After hearing both sides and analyzing the materials placed before it, it answered points 1, 2 and 4 in the negative and point no.3 in the affirmative by its judgment and decree dated 15.06.2004 and dismissed the appeal. It is against the said judgment and decree of the First Appellate Court, the plaintiff has preferred the present appeal.

9. This Court admitted the matter to consider the following substantial questions of law as framed by the appellant in his Memorandum of Appeal.

(a) Whether the lower courts were justified in non-suiting the Appellant on the ground of non- joinder of necessary parties?

(b) Whether the Lower Courts erred in not appreciating that the defendants cannot have the vehicle and also the sale price, putting the interest on the Appellant in jeopardy?

(c) Having found that the Appellant had purchased the property from auction purchaser and spent the amount for repairs, tax, permit etc, whether the Lower Courts were justified in not granting the claim of Appellant?

10. Learned High Court Government Pleader accepting the notice on behalf of all the four respondents, is representing them. The LCR was called for and the same are placed before this Court.

11. Heard arguments from both sides.

12. Learned counsel for the appellant in his argument while reiterating the contentions taken up in his memorandum of appeal submitted that, since the vehicle was seized from the possession of the plaintiff, who was the lawful owner of the vehicle at the time of its seizure, arraying the previous owner of the said vehicle in the original suit was not at all called for. Thus, neither of the previous owners were the necessary parties to the litigation. He further submitted that the observation of the Courts below that plaintiff is not the auction purchaser as such he cannot maintain the suit, is also baseless. Further, non-challenging of the order passed in the writ petition has got nothing to do with his right to claim refund of money and damages from the defendants who had seized his vehicle by executing the order of the High Court in the Writ Petition. Learned counsel concluded his arguments submitting that when admittedly the defendants have not disputed that they had sold the said vehicle in an auction sale to H.R.Shivashankar and that the plaintiff was the subsequent purchaser of the vehicle from the said auction purchaser for a consideration of Rs.30,000/- and also the said vehicle was seized from the custody of the subsequent purchaser i.e., the plaintiff, the defendant/respondent could not have seized the vehicle and also retain the amount paid by the auction purchaser with them.

13. Learned HCGP in her arguments canvassed only one point that the plaintiff has not approached the trial Court with clean hands. He himself was in arrears of tax from 1.2.1990. As such, he does not deserve any decree in his favour.

14. It is not in dispute that Sri.Ameer s/o Sabjan Sab was the original owner/R.C.holder of the Motor Vehicle Luxury Cab bearing Regd.No.MYH 6566 and that the said vehicle was seized by the Motor Vehicle Inspector of the 3rd respondent on 21.03.1990 for the alleged non-payment of tax arrears. It is also not in dispute that the said seized vehicle was sold in public auction on 8.8.1989. One H.R.Shivashankar purchased the said vehicle for a consideration of a sum of Rs.20,000/- and got his name entered in the registration certificate (R.C.book). It is also not in dispute that plaintiff (appellant herein) purchased the said vehicle from the said auction purchaser for a consideration of a sum of Rs.30,000/- and got his name entered in the R.C.book on 18.8.1989. It is also not in dispute that the original owner of the said cab i.e., Sri Ameer filed a Writ Petition before this Court in W.P.14605/1989. In the said Writ Petition, all the 4 present respondents were also respondents and also the present appellant was also a respondent therein. After contest, the said Writ Petition came to be disposed of by this Court by its order dated 20.02.1991. The operative portion of the said judgment reads as below:

".....In the circumstances, it cannot be disputed by the respondents that notice had not been served on the petitioner at all. Service of such notice is a mandatory requirement of Rule 27-B of the Rules. When the mandatory provisions of Rule 27-B of the Rules has not been complied with and even without notice to the petitioner the auction sale has taken place, it is obvious that the same is vitiated. Hence, the action taken by the respondent stands quashed. Respondent No.2 shall return the vehicle to the petitioner on the condition that the petitioner shall pay all the taxes due in respect of the vehicle and other penalties if any and also on paying charges of the sale that has been held and other expenses. Petition shall stand disposed of in the above terms".

It is further not in dispute that the said motor cab was seized by respondents 3 and 4 herein on 21.3.1990 and have retained the said vehicle till now. According to the submission of the learned HCGP, which is not opposed by the learned counsel for the appellant that the said seized vehicle is still in the custody of the respondent/RTO authorities. However, his contention now is note worthy.

15. It is in the light of the above undisputed facts, the matter is now required to be considered. The contention of the plaintiff is that after he becoming lawful owner of the motor cab bearing Regn.No.MYH 6566, it was seized by the respondent/authorities, by virtue of the order of the Hon'ble High Court of Karnataka passed in W.P.14605/89. The relief sought for by the plaintiff in the original suit is for recovery of a sum of Rs.61,400/- from the defendants therein. Admittedly, the original owner of the vehicle Sri.Ameer and the auction purchaser of the same vehicle by name H.R.Shivashankar were not arrayed as parties in the original suit. Both the courts below have held that it amounted to non-joinder of parties as such, the plaintiff fails in his suit.

16. A proper party to a suit is that party whose presence and participation in the litigation may help in proper adjudication of the matter, whereas a necessary party to a litigation is that party in whose absence, matter cannot be adjudicated upon the issues involved therein. In the instant case, the admitted fact is that as on the date of the institution of the suit by the plaintiff, he (plaintiff) was the absolute owner of the vehicle in question. The documents pertaining to the ownership of the vehicle i.e., Registration Certificate was also standing in his name. Further, it is from his possession the respondent/authorities have seized the vehicle, though in the guise of the compliance of the order of the Hon'ble High Court. Thus, the cause of action for the present plaintiff to sue the defendant have arisen on the day i.e., on 21.3.1990 i.e., the day on which the vehicle was seized by the respondent/authorities. On the said date neither Sri.Ameer nor H.R.Shivashankar had got any control, ownership or relationship with the seized vehicle. Thus, in the absence of the plaintiff claiming any relief against the previous owners of the vehicle nor their participation in the suit was in any manner of help in the proper adjudication of the matter and also the disputed fact was solely between the plaintiff and defendant in the original suit, the findings of both Courts below that the original owner Sri.Ameer and the auction purchaser H.R.Shivashankar were necessary parties and that the suit was bad non-joinder of parties was an erroneous finding.

17. The finding of the court below that this Court in W.P.14605/89 has not passed any order in favour of the present plaintiff, who incidentally was one of the respondent therein, as such, the respondents/defendants were in no way liable to the plaintiff in any manner, is also not acceptable for the reason that the Writ Petition in W.P.14605/81 was instituted by the original owner of the vehicle Sri.Ameer challenging the legality of the auction sale conducted by the respondent on 8.8.1989. The plaintiff herein being only a subsequent purchaser of the said vehicle, he was arrayed as a party. Thus, the scope of the Writ petition was confined only in finding out the legality of the auction sale of the seized vehicle. That being the case, there was no necessity for the plaintiff to seek any relief for him in the said writ petition. Further, merely because the said writ petition is silent about any remedy to the plaintiff from whose possession the vehicle was seized, by that itself it cannot be inferred that he was not entitled for the amount which he has spent for purchase of the said vehicle. Therefore, the findings of the trial Court that the plaintiff could have objected to the seizure of the vehicle or that he could have prayed for any relief for him in the very same writ petition is also not acceptable.

18. Lastly, a perusal of Ex.P.5 go to show that before instituting the suit, plaintiff caused a notice upon the respondents/defendants wherein, he has narrated entire details of how he acquired the vehicle and how he was dispossessed from the same and also his claim and entitlement due to the dispossession of the vehicle from his custody. In reply to the said notice, respondent no.3 at Ex.P.9 has only stated that the order in Writ Petition No.14605/89 dated 20.02.1991 itself is their answer. Respondent no.4 - the Motor Vehicle Inspector in his reply at Ex.P.10 has stated that as a Government servant he has only executed the orders of his superiors. Thus, the contention of the plaintiff placed before the defendants at the earliest point of time about his claim and entitlement due to the dispossession of the cab has not been specifically denied by the defendants.

19. The above undisputed fact and also reply to the notice of the plaintiff by the defendants clearly go to show that as on the date of the plaintiff purchasing the motor cab from the auction purchaser, he had paid a consideration of Rs.30,000/- to the auction purchaser. Even according to the trial Court which has given its finding, the plaintiff after purchasing the said cab has incurred an expenditure of Rs.8950/- to attend the necessary repairs to the said cab. The defendants have not specifically denied that the plaintiff had pooled up the funds and purchased the said vehicle from the Hire Purchase Financier agreeing to repay the loan amount in monthly instalments together with interest @ 21% p.a. It is also not in dispute from the date of seizure i.e.,21.3.1990, the vehicle has been continuously in possession of the defendants. Thus, plaintiff has been denied with the use, possession and enjoyment of the vehicle. Thus, the respondents/defendants apart from retaining with them the sale proceeds paid to them by the auction purchaser, have also retained the vehicle in their possession. Thus, both the vehicle and its sale consideration are being retained by them. Even though the plaintiff was earlier a lawful purchaser of the said motor cab after he purchased the same from auction purchaser H.R.Shivashankar, however, he was deprived of the said vehicle and his ownership of the said vehicle was taken away by virtue of the order of this Court in W.P.14605/89 dated 20.2.1991 whereunder, this Court had set-aside the auction sale and directed that the vehicle be returned to its original owner Sri.Ameer. As such, either the contract of auction sale between the respondents and the plaintiff has become unenforceable or it has become void by virtue of the order of this Court in the said writ petition in W.P.14605/89 dated 20.2.1991.

20. Section 65 of the Indian Contract Act says that, "When an agreement or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it". The said Section enunciates the principle of Doctrine of unjust enrichment. As such, after setting-aside of the auction sale, plaintiff has lost his right to claim the possession of the vehicle. His only remedy would be for recovery of money which he has done by instituting the original suit. The respondents cannot retain the vehicle with them and also money paid by the auction purchaser. Thus, the findings of the Courts below disentitling the plaintiff for recovery of money is an erroneous finding.

21. The auction purchaser has paid a sum of Rs.20,000/- towards the purchase value whereas the plaintiff has paid a sum of Rs.30,000/- for purchasing the said vehicle from the auction purchaser and as observed by the trial Court, he incurred an additional expenditure of Rs.8950/- towards repair of the said vehicle. In view of the fact that at the time of the seizure of the vehicle, the said vehicle was in lawful custody and ownership of the plaintiff who had acquired such right upon such vehicle by incurring an expenditure of Rs.30,000/- + 8950, by the alleged seizure and denial of ownership of the plaintiff, the respondents have deprived the appellant/plaintiff of his amount of Rs.38950/- which he has spent on that vehicle. Thus, as on the date of the seizure of the vehicle, it was worth Rs.38950/- and that was the amount spent by the plaintiff in keeping the vehicle in the said condition as on the date of seizure. Therefore, it is this amount for which the plaintiff is entitled to recover from the defendant.

22. In addition to the above, the plaintiff has also stated that he has incurred sum of Rs.2450/- in getting the permit of the said vehicle. However, learned HCGP submitted in her argument that the said permit fee was valid only till the dt: 1.2.1990 and for the entire said period, the plaintiff has used the permit by plying the vehicle. Thus, as on the date of seizure, the plaintiff had not incurred any expense to keep the said vehicle under a valid permit which can be said to be in force. Thus, for the said amount of Rs.2450/- he is not entitled.

23. In addition to the above, the contention of the defendant that he had borrowed loan from a financial institution on the condition of repaying the same in monthly instalments with prescribed rate of interest, is also not seriously disputed by the defendants. The document at Ex.P.11, which is a hire purchase agreement, corroborates the contention of the plaintiff as well as the contention of PW1. Thus, the defendants in addition to refund of the above amount are also required to pay the interest, though not as shown in the hire purchase agreement at Ex.P.11, but at a reasonable rate to the plaintiff upon the amount which they are liable to pay. In the circumstance, of the case, I am of the view that interest @ 15% would be a reasonable amount considering the fact that the hire purchase agreement was a business agreement for the lender of the money who charge higher rate of interest. For these reasons, I answer the substantial question nos.1 and 3 in the negative and 2 in the affirmative and hold that the judgment and decree under consideration, deserves to be set-aside and the suit of the plaintiff deserves to be decreed as appealed . Accordingly, I proceed to pass the following:

ORDER

The appeal is allowed. The judgment and decrees passed by the Additional District Judge, Hassan in R.A.No.48/2000 dated 15.06.2004 and that of the Civil Judge (Sr.Dn.), Hassan in O.S.38/1993 dated 26.09.2000 are set-aside. The suit of the plaintiff is decreed in part with costs throughout. The respondents herein (defendants in the Courts below) are liable jointly and severally to pay to the plaintiff a sum of Rs.38,950/- with interest @ 15% p.a. from the date of institution of the original suit till the date of realization.

Draw the modified decree accordingly.

O R