K Nagaraj S/O. K Siddappa vs S Satishbabu S/O.Neelkanthappa
2022 Latest Caselaw 10367 Kant

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                                     RSA No. 100044 of 2014


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

           DATED THIS THE 04TH DAY OF JULY, 2022

                          BEFORE
           THE HON'BLE MR JUSTICE E.S.INDIRESH

       REGULAR SECOND APPEAL NO. 100044 OF 2014 (-)

BETWEEN:

K NAGARAJ S/O. K SIDDAPPA
AGE: 51 YEARS, OCC: BUSINESS
R/O. BELLARY ROAD
KURUGOD, TQ and DIST: BELLARY

                                              ...APPELLANT

(BY SRI. ABHISHEK PATIL, ADVOCATE)

AND:

1.    SATISHBABU S/O.NEELKANTHAPPA
      AGE: 51 YEARS, OCC: BUSINESS
      R/O. KARTIK WINES
      DOOR NO. 1140/B, WARD NO.1
      TORANAGALLU 583 123
      PERMANENT RESIDENT OF
      NEAR M G BROTHERS
      ANANTPUR ROAD, PATEL NAGAR,
      BELLARY 583 101.

2.    THE DEPUTY COMMISSIONR OF EXCISE
      BELLARY 583 101
      DIST: BELLARY

3.    THE COMMISSIONER OF EXCISE
      GOVERNMENT OF KARNATAKA
      II FLOOR, VAKKALIGARA BHAVAN
      BANGALORE 560 001
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                                         RSA No. 100044 of 2014


4.   THE DEPUTY COMMISSIONER (REVENUE)
     BELLARY 583 101.
                                                ...RESPONDENTS
(BY SRI. RAVI HEGDE, ADVOCATE FOR R1;
 SRI. PRASHANT MOGALI, GOVT.ADVOCATE FOR R2 TO R4)

     THIS RSA IS FILED U/O. XLII RULE 1 R/W. SEC. 100 OF
CPC 1908, AGAINST THE JUDGEMENT & DECREE
DTD:17.12.2013 PASSED IN R.A.NO.35/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE & JMFC, KUDLIGI, DISMISSING THE
APPEAL FILED AGAINST THE JUDGMENT AND DECREE
DTD:21.02.2013 AND THE DECREE PASSED IN O.S.
NO.46/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC., AT
SANDUR, ALLOWING TH SUIT FILED FOR DECLARATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY.
THE COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

This Regular Second Appeal is preferred by the plaintiff

challenging the judgment and decree dated 17.12.2013 passed in

R.A.No.35/2013 on the file of the Senior Civil Judge and JMFC,

Kudligi (hereinafter referred to as 'the First Appellate Court', for

brevity), confirming the judgment and decree dated 21.02.2013

passed in O.S. No.46/2010 on the file of the Civil Judge and JMFC,

Kudligi (hereinafter referred to as 'the trial Court', for brevity),

dismissing the suit of the plaintiff.

RSA No. 100044 of 2014

2. For the sake of convenience, the parties to this appeal

shall be referred to in terms of their status and ranking before the

trial Court.

3. The facts relevant for the purpose of adjudication of

this appeal are that, the plaintiff claims to be the CL-9 license

holder and was running a bar and restaurant in the name and style

of M/s.Supreme Bar at Toranagallu, Ballari District and the said

license was being renewed every year. It is further stated by the

plaintiff that, defendant No.1 is running a bar and restaurant under

the name and style M/s. Kavana Wine at Door No.1140/1B of

Toranagallu, Hospet road and it is shown that the license issued in

favour of the plaintiff has been transferred in the name of defendant

No.1 and as such, plaintiff disputed the said transfer of license by

defendants No.2 to 4 in favour of defendant No.1 and filed a suit in

O.S.No.46/2010, seeking the declarative relief that the affidavit

dated 20.09.2004 executed by defendant No.1 with the defendant

No.2 and transfer of license in Form No.17/B by the defendant

No.2 is forged and null and void.

4. On service of notice, defendant No.2 entered

appearance and filed detailed written statement alleging that the

RSA No. 100044 of 2014

suit is not maintainable for want of notice under Section 80(1) of

the Code of Civil Procedure. Defendant No.2 - Deputy

Commissioner of Excise, Ballari, has also raised preliminary

objection that the suit is not maintainable under Section 68 and 68-

B of the Karnataka Excise Act, 1965 (hereinafter referred to as 'the

Act', for brevity) and accordingly sought for dismissal of the suit.

Defendant No.2 has also filed I.A.No.IX under Order 7 Rule 11(d)

R/w. Section 151 of the Code of Civil Procedure and sought for

rejection of the plaint. The plaintiff filed objections to the I.A. No.IX.

The trial Court after considering the material on record and

averments made in the plaint, rejected the plaint on 21.02.2013, by

allowing I.A.No.IX filed by defendant No.2. Feeling aggrieved by

the same, plaintiff has preferred R.A.No.35/2013 before the First

Appellate Court and the said appeal was resisted by the

defendants. The First Appellate Court after considering the

material on record, by its judgment and decree dated 17.12.2013,

dismissed the appeal with cost of Rs.5000/-, inter alia confirmed

the judgment and decree passed in O.S.No.46/2010. Feeling

aggrieved by the same, plaintiff has preferred this Regular Second

Appeal.

RSA No. 100044 of 2014

5. I have heard Sri. Abhishek Patil, learned counsel

appearing for the appellant, Sri. Ravi Hegde, learned counsel

appearing for respondent No.1 and Sri. Prashant Mogali, learned

Govt. Advocate, appearing for the respondents No.2 to 4.

6. Sri. Abhishek Patil, learned counsel appearing for the

appellant contended that, the trial Court ought to have considered

the scope of Order 7 Rule 11 of Code of Civil Procedure and ought

to have read the entire averments of the plaint before allowing the

application in I.A.No.IX. He further contended that, the finding

recorded by both the Courts below with regard to bar of jurisdiction

under Section 68-B of the Act is incorrect and the Civil Court is

having jurisdiction to entertain the plaint and accordingly he sought

for interference of this Court.

7. Per contra, Sri. Ravi Hegde, learned counsel

appearing for the respondent No.1 sought to justify the impugned

judgment and decree passed by the Courts below and argued that

the suit is not maintainable as the relief sought for in the suit is for

nullifying the forged document dated 20.09.2004.

RSA No. 100044 of 2014

8. Sri. Prashant Mogali, learned Government Advocate

appearing for respondents No.2 to 4 argued in support of the

impugned Judgment and Decree passed by the Courts below.

9. In the light of the submissions made by the learned

counsel appearing for the parties, the core questions to be

answered in this appeal is whether the O.S.No.46/2010 is

maintainable before the trial Court in view of Section 68-B of the

Act. Section 68-B of the Act reads as under:

"68. No Civil Court shall have jurisdiction in respect of any matter which any excise officer or other authority empowered by or under this Act has to determine and no injunction shall be granted by any court in respect of any action taken or to be taken by such excise officer or authority in pursuance of any power conferred by or under this Act."

10. It is the case of the plaintiff that, the plaintiff was

granted license by the respondent authorities to run bar and

restaurant as per CL-9 license till 2004-2005 and thereafter

defendant No.1 is running the bar and restaurant based on the very

same CL-9 license. It is also forthcoming from the finding recorded

by both the Courts below that, the plaintiff has challenged the

RSA No. 100044 of 2014

affidavit dated 20.09.2004 said to have been made by the

defendant No.1 in favour of defendant No.2. In this regard, it is

also discussed by the Courts below that WP No.17035/2005 was

filed before this Court and the said writ petition came to be

dismissed and thereafter the plaintiff preferred an appeal before the

Excise commissioner under Section 61 of the Act. Taking into

consideration that the grievance of the plaintiff is that the affidavit

dated 20.09.2004 is said to have been forged by the defendant

No.1 and in this regard, the Civil Suit is not maintainable in terms of

Section 68-B of the Act. If at all the plaintiff is aggrieved by the

effect that the affidavit has been forged, there was no impediment

for the plaintiff to launch criminal action against defendant No.1.

Therefore, I am of the opinion that both the Courts below rightly

rejected the plea made by the plaintiff with regard to the relief

sought for in OS No.46/2010.

11. It is well established principle of law that, while

considering the application under Order 7 Rule 11 of Code of Civil

Procedure, It is the duty of the trial Court to look into the plaint

averments alone. However, in the present case, as there is

statutory bar under Section 68-B of the Act, both the Courts below

RSA No. 100044 of 2014

have rightly dismissed the suit filed by the plaintiff. In view of the

law declared by the Constitution Bench of the Hon'ble Apex Court

in Dhulabhai Vs. State of Madhya Pradesh, reported in AIR 1969

SC 78, the suit is not maintainable.

12. In that view of the matter, I am of the view that as the

plaintiff has not made out case for formulation of substantial

question of law as required under Section 100 of Code of Civil

Procedure. Accordingly, the appeal fails and dismissed at the

stage of admission.

Sd/-

JUDGE

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