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Sardar Manohar Singh v/s The Housing Commissioner, Karnataka Housing Board & Others

    Regular Second Appeal No. 7323 of 2011

    Decided On, 25 January 2017

    At, High Court of Karnataka Circuit Bench OF Kalaburagi

    By, THE HOUNOURABLE MR. JUSTICE A.S. BOPANNA

    For the Appellant: Ashok S. Kinagi, Advocate. For the Respondents: Ashok R. Kalyanshetty, S.S. Mamdapur, Advocates.



Judgment Text

1. The appellant is before this Court assailing the order dated 14/03/2006 in O.S. No. 467 of 1989(166 of 1987-old) and the judgment dated 24/06/2011 in R.A. No. 128 of 2010(R.A. No.31 of 2006-old). The appellant herein is the plaintiff in the suit.

2. For the purpose of convenience and clarity the parties are referred to in the same rank assigned to them before the Trial Court.

3. The plaintiff filed the suit seeking for a judgment and decree of specific performance to enforce the exchange deed dated 6/12/1983 against the defendants. The defendants had filed their written statement disputing the claim as put forth by the plaintiff. The written statement had been filed on 10/11/1988. When the suit was pending for more than a decade and a half, the defendants filed an application under the Section 72 of the Karnataka Housing Board Act, 1962('KHB Act ' for short) contending that the suit is not maintainable for want of issue under Section 72 of the KHB Act. The application was opposed by the plaintiff. The Trial Court by its order dated 14/03/2006 has held the same against the plaintiff and dismissed the suit as not maintainable for want of issue of notice. The plaintiff claiming to be aggrieved by the same was before the Lower Appellate Court.

4. The Lower Appellate Court framed three points for its consideration and the issue relating to non-issue of notice under Section 72 of the KHB Act as contended was considered while answering Point No.1. The said point was held in the negative in favour of the plaintiff to arrive at the conclusion that the non-issue of notice is not fatal to the suit. Though such conclusion was reached, the Lower Appellant Court has proceeded further to consider the merits of the rival contentions to come to a conclusion that the suit was not maintainable insofar as merits. It is in that light, the plaintiff is before this Court in this second appeal.

5. Since the instant appeal is filed under Section 100 of Civil Procedure Code, 1908 and having taken note of the manner in which the Courts below have proceed in the manner, the following substantial question of law arises for consideration in this appeal:

'Whether in the facts and circumstance of the case the conclusion reached by the Lower Appellate Court with regard to the notice under Section 72 of the KHB Act on being held in favour of the appellant, the Lower Appellate Court could have proceeded further to dismiss the appeal by arriving at the conclusion that the suit is not maintainable on merits of the case when the Trial Court had not yet considered that aspect?'

6. While considering this aspect of the matter, a perusal of the finding rendered by the Lower Appellate Court on Point No.1 would disclose that in order to arrive at the conclusion that the suit was not barred for want of notice under Section 72 of the KHB Act, the Lower Appellate Court has taken into consideration the fact that the plaintiff had filed an application in IA No. II under Section 80(2) of CPC explaining the urgency in filing the suit and in that light seeking exemption from issuing mandatory notice. This aspect of the matter has also been kept in view for taking into consideration that such leave granted and the non-maintainability of the suit for want issuance of notice under Section 72 of the KHB Act not being taken in the written statement filed by the defendants as a circumstance to hold that the Trial Court was not justified in its conclusion to hold the suit was not maintainable on that count.

7. At this juncture, it is also necessary to take note of the decision relied on by the learned Counsel for the respondents in the case of K. Krishna Murthy Setty v Karnataka Housing Board and Another[1989(2) kar. L.J.387],ILR 1989 kar.3479, to contend that this Court in the said case has held that notice Section 72 before filing a suit against the Karnataka Housing Board is mandatory.

8. Having perused the said judgment, it is seen that the issue for consideration therein had arisen in a circumstance where the Karnataka Housing Board in exercise of its power under the KHB Act had issued a notice of recovery to the plaintiff therein. The said notice of recovery dated 04/03/1982 had been called in question in the suit. In that light, having taken into consideration the fact that the suit related to the action taken by the KHB under the provisions of the Act had arrived at the conclusion that the proviso of Section 72 of the Act were attracted. It is in that circumstance it was held that a suit filed without issuance of notice was not maintainable. In the instant case the plaintiff is not questioning any action taken by the defendants under the Act. The suit filed seeking for specific performance of the exchange deed, which is claimed to have entered into between the plaintiff and defendants-KHB. Hence, the relief as sought by the plaintiff is the common law relief and in that light, to present facts the bar as contained in Section 72 of the KHB Act in any event does not apply.

9. Be that as it may, even otherwise the Lower Appellate Court in any event has arrived at the conclusion that the decision of the Trial Court to allow the application filed under Section 72 of the KHB Act was not justified. The Lower Appellate Court having arrived at such conclusion ought to have remanded the matter to the Trial Court so as to enable the parties to tender their evidence based on the issues that are framed before the Trial Court so as to enable the Trial Court to analyse the evidence and thereafter arrive at a conclusion on the merits of the rival claim. If this aspect of the matter is kept in view, the conclusion as reached by the Lower Appellate Court on Point No.2 is an unilateral assessment which is made on an issue which had not yet been considered by the Trial Court. No decision had been rendered so as to be considered in a first appeal of the present nature.

10. In that view of the matter, the substantial question of law raised herein is answered in favour of the appellant. In that light, the judgment dated 24/06/2011 in R.A. No.128 of 2010(R.A. No.31 of 2006 old) insofar as the answers to Point Nos.2 and 3 therein is set aside by confirming the answer by the Lower Appellate Court to Point No.1. In that view,

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the suit in O.S.No.467 of 1989(166 of 1987 old) is remanded and restored to the file of the Additional Civil Judge, Bidar so as to consider the suit on its merits after providing opportunity to the parties to tender their evidence on merits. All contentions on merits are left open to be urged before the Trial Court. Since the parties are represented by their learned Counsel they shall appear before the Trial Court on 15/02/2017 as the first for appearance. The Trial Court shall thereafter regulate and consider the proceedings in accordance with law. The appeal is accordingly allowed in part. In the view of the remand, the Court fee be refunded to the appellant.
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