Karnataka High Court
Channamallappa And Anr vs The Managing Director And Anr on 2 July, 2024
-1-
NC: 2024:KHC-K:4498
RSA No. 200126 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200126 OF 2020
(DEC/INJ)
BETWEEN:
1. CHANNAMALLAPPA
S/O SHIVASHARANAPPA HAVNOOR,
AGE: 42 YEARS, OCC: BUSINESS MILK PARLOR
R/O: HONNAKIRANAGI VILLAGE,
TQ: AND DIST: KALABURAGI.
2. PRABHULINGA S/O NIJALINGA MALIPATIL
AGE: 39 YEARS, OCC: AGRIL
R/O: VILLAGE MADBOOL,
TQ: CHITTAPUR, DIST: KALABURAGI.
...APPELLANTS
Digitally signed
by SWETA (BY SRI RAMCHANDRA K AND
KULKARNI
SRI RAGHAVENDRA R. MUDHOL, ADVOCATES)
Location: HIGH
COURT OF
KARNATAKA
AND:
1. THE MANAGING DIRECTOR
N.E.K.R.T.C. MAIN ROAD,
KALABURAGI-585102.
2. THE DIVISIONAL CONTROLLER
N.E.K.R.T.C. KALABURAGI DIVISION,
KALABURAGI-585102.
...RESPONDENTS
(BY SRI DEEPAK V. BARAD, ADV. FOR R1 AND R2)
-2-
NC: 2024:KHC-K:4498
RSA No. 200126 of 2020
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO CALL
FOR RECORDS AND ALLOW THE REGULAR SECOND APPEAL BY
SETTING ASIDE THE JUDGMENT AND DECREE PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE KALABURAGI IN R.A.
NO.25/2017 DATED 13.03.2020 AND ALSO JUDGMENT AND
DECREE PASSED BY THE IV ADDL. CIVIL JUDGE AND JMFC
KALABURAGI IN O.S. NO.134/2013 DATED 10.02.2017 AND
FURTHER TO DECREE THE SUIT OF THE PLAINTIFFS WITH
COST THROUGHOUT IN THE INTEREST OF JUSTICE; TO
REMAND THE MATTER TO THE TRIAL COURT WITH
DIRECTIONS TO FRAME PROPER AND NECESSARY ISSUES AND
DISPOSE OF THE CASE ON MERITS.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Against the concurrent findings of facts by the Courts below, the plaintiffs are before this Court in the Regular Second Appeal.
2. Parties herein are referred to as per the ranking before the Trial Court for the sake of convenience.
3. Suit for declaration declaring that the cancellation of agreement dated 12.06.2010 is void, illegal and against law and further relief of mandatory injunction directing the defendants to provide alternative accommodation of shops at newly constructed central bus -3- NC: 2024:KHC-K:4498 RSA No. 200126 of 2020 stand to run a milk parlour business and for indemnifying the losses sustained by the plaintiffs. The plaint avers that the plaintiffs are licensees under the agreement dated 01.08.2009 to run milk parlour in an open space at shop Nos.2 and 3 of Super Market City Bus Stand, Kalaburagi. According to the plaintiffs, period of license was for three years w.e.f. 01.08.2009 to 31.07.2012 and in view of the agreement, the plaintiffs have deposited the security amount and the plaintiffs were running their milk parlour business as per the agreement. It is further averred that in light of the road widening scheme adopted by the City Corporation, Kalaburagi, the entire structure made by the plaintiffs was dismantled and has caused heavy loss to the plaintiffs. It is stated that the plaintiffs are entitled for reimbursement of the loss from the defendants which is the NEKRTC, Managing Director and Divisional Controller. Further, the plaintiffs had approached High Court by filing a writ petition against the act of the respondents and further direction against the defendants to provide alternative shops at newly constructed Central Bus Stand. -4-
NC: 2024:KHC-K:4498 RSA No. 200126 of 2020 As it was brought to the notice before the writ Court that plaintiffs' licenses were revoked as per the order dated 12.06.2010, the writ petitions were disposed of. According to the plaintiffs, the cancellation of license were manipulated and prepared after the demolition and dispossession of the said shops and the plaintiffs have not violated any terms and conditions and the rents have been paid regularly by the plaintiffs. It is the case of the plaintiffs that they have sustained loss to the tune of Rs.2,77,561/- and a sum of Rs.2,99,831/- due to the dispossession of the said shops.
4. On service of notice, the defendants appeared and filed their written statement inter alia contending that the plaintiffs have failed to pay license fee and service taxes as per the terms and conditions of the agreement and having failed to fulfill the terms and conditions, notice was issued on 10.12.2009 to the plaintiffs to pay license fee from September, 2009 to December, 2009. Though the notices were served upon the plaintiffs, the plaintiffs -5- NC: 2024:KHC-K:4498 RSA No. 200126 of 2020 having failed to pay license fee and service taxes, the defendants revoked the license as per the agreement terms. It is contended that the plaintiffs have voluntarily vacated the suit property after realizing the violation of the terms and conditions of the agreement and the writ petitions preferred by the plaintiffs have been dismissed as no sufficient grounds to demonstrate their rights to seek the said direction.
5. Based on the pleadings, the Trial Court framed the following issues:
"ISSUES
1. Whether plaintiffs prove that the orders of cancellation of agreement dated: 01.08.2010 issued by the defendants is illegal, void and against law?
2. Whether the plaintiffs are entitled for alterative accommodation at Central Bus-Stand, Gulbarga for running Milk Parlors?
3. Whether plaintiffs are entitled for the reliefs, as prayed?
4. What decree or order?"-6-
NC: 2024:KHC-K:4498 RSA No. 200126 of 2020
6. In order to substantiate their claim, the special power of attorney holder of the plaintiffs examined himself as PW-1, marked documents at Exs.P-1 to P-7. On the other hand, the Divisional Traffic Officer is examined as DW-1, marked documents at Exs.D-1 to D-9.
7. The Trial Court, on the basis of the pleadings, oral and documentary evidence, arrived at a conclusion that:
(i) the plaintiffs have failed to prove that the orders of cancellation of agreement dated 01.08.2010 issued by the defendants is illegal, void and against law;
(ii) the plaintiffs have failed to prove that they are entitled for alternative accommodation for running a milk parlour; and by the judgment and decree, the Trial Court dismissed the suit. Aggrieved, the plaintiffs preferred appeal before the first appellate Court. The first appellate Court, while re- appreciating and re-considering the entire oral and -7- NC: 2024:KHC-K:4498 RSA No. 200126 of 2020 documentary evidence, concurred with the judgment and decree of the Trial Court. Aggrieved, the plaintiffs are before this Court in the second appeal.
8. Heard the learned counsel appearing for the parties and perused the material on record.
9. Suit of the plaintiffs seeking for declaration that the cancellation of the agreement by the defendants is illegal and void. The plaintiffs had entered into an agreement with the defendants and were granted license to run a milk parlour at open space Shop Nos.2 and 3 as per the agreement dated 01.08.2009. The plaintiffs occupied the said shops and commenced their milk parlour business by investing the money. The agreement was for three years i.e., commencing from 01.08.2009 and ending on 31.07.2012. The defendants, by an order dated 12.06.2010 cancelled the agreement entered on 01.08.2009 as the plaintiffs failed to pay the license fee and the service taxes. As the plaintiffs failed to fulfill the requirements as per the agreement, the defendants have -8- NC: 2024:KHC-K:4498 RSA No. 200126 of 2020 cancelled the agreement with the plaintiffs as per the terms and conditions entered in the agreement which is at Exs.D-7 and D-8. The condition Nos.14, 18 and 23 of the agreement have been violated by the plaintiffs and the defendants being an authority, cancelled the agreement and forfeited the deposited amount. The question that fell for consideration before the Courts below was whether the act of the defendants in canceling the agreement dated 01.08.2009 was justified or not.
10. The cancellation of the agreement by the defendants was on the ground that the license fee and the service taxes as per the agreement condition Nos.14 and 18 have not been paid. The burden was on the plaintiff to prove that they have paid the license fee and service taxes regularly. No materials are forthcoming to indicate that they have paid the license fee and the service taxes. In the absence of the same, the burden which was on the plaintiffs was not discharged. Other than the mere assertion by examining the power of attorney holder as -9- NC: 2024:KHC-K:4498 RSA No. 200126 of 2020 PW-1, that they have been paying the fees within 5th day of each month as per the agreement, no corroborative evidence is forthcoming. The plaintiffs having failed to produce any material documents to prove their contention, the Trial Court arrived at a conclusion that the plaintiffs have failed to prove that the defendants have illegally terminated the agreement.
11. The relief of mandatory injunction sought by the plaintiffs is to provide alternative accommodation of shops at newly constructed Central Bus Stand. The alternative prayer is on the ground that the shops were demolished by the City Corporation without notice while the contract was in force. Admittedly, the damage or the demolition is not by the respondents but by the City Corporation for the purpose of road widening. If any grievance was there by the plaintiffs it had to be made before the appropriate authority. The defendants cannot be called upon to provide alternative shops on the ground that the shops have been demolished by the City
- 10 -
NC: 2024:KHC-K:4498 RSA No. 200126 of 2020 Corporation and moreover so when the license of the plaintiffs have already been cancelled by the defendants. It is also material to note that W.P.Nos.83110-83111/2010 preferred by the plaintiffs was dismissed observing that when the contract is cancelled and in view of the cancellation of the license granted, could not automatically entail the plaintiffs herein to seek for direction to grant license to the plaintiffs by the authority and to run their business at a newly constructed building. The license of the plaintiffs have been cancelled for violation of contract. The plaintiffs have not made out any ground for declaration that the cancellation of the agreement is illegal. The claim regarding the financial loss caused to the plaintiffs for dispossession of the shops was by the City Corporation as stated supra, the plaintiffs may approach the appropriate authority seeking for compensation. The Trial Court on consideration of the entire oral and documentary evidence, dismissed the suit of the plaintiffs.
- 11 -
NC: 2024:KHC-K:4498 RSA No. 200126 of 2020
12. The first appellate Court, being the last fact finding Court, re-assessed the entire oral and documentary evidence and held that the defendants have cancelled the license of the plaintiffs due to the violation of the terms and conditions of the agreement dated 01.08.2009 and in the absence of any documents produced by the plaintiffs that as per the terms of the agreement they have regularly paid the license fees and the service taxes, the plaintiffs are not entitled for the relief of declaration and the revocation of license issued by the defendants cannot be said to be illegal. The courts below, on finding of facts, have rightly appreciated the entire oral and documentary evidence and the same does not warrant any interference by this Court under Section 100 CPC. No substantial question of law arises for consideration.
Accordingly, this Court pass the following:
- 12 -
NC: 2024:KHC-K:4498 RSA No. 200126 of 2020 ORDER
(i) The Regular Second Appeal is hereby dismissed.
(ii) The judgment and decree of the Courts below stands confirmed.
Sd/-
JUDGE SWK List No.: 1 Sl No.: 40 CT: VD