The Chief Officer vs D Rangaswamy
2023 Latest Caselaw 5739 Kant

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                                                             NC: 2023:KHC:29443
                                                           RSA No. 1095 of 2021




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 18TH DAY OF AUGUST, 2023

                                                BEFORE

                                THE HON'BLE MR JUSTICE H.P.SANDESH

                           REGULAR SECOND APPEAL NO. 1095 OF 2021 (MON)

                      BETWEEN:

                      1.    THE CHIEF OFFICER
                            TOWN MUNICIPALITY, BELUR,
                            HASSAN DISTRICT - 573 115.
                                                                ...APPELLANT

                                   (BY SRI NAGARAJAPPA A., ADVOCATE)

                      AND:

                      1.    D. RANGASWAMY
                            S/O. ANNEGOWDA
                            AGED ABOUT 53 YEARS
                            CONSTRUCTION AND
                            DESIGN ENGINEER,
                            ESS BUILDERS, 1ST FLOOR,
Digitally signed by         BHADRIDAM BUILDING
SHARANYA T
Location: HIGH              OPP. APOORVA HOTEL,
COURT OF                    PARK ROAD,
KARNATAKA                   HASSAN - 573 201.

                      2.    CHIEF SECRETARY
                            GOVERNMENT OF KARNATAKA
                            DR. AMBEDKAR VEEDHI
                            BANGALORE - 560 001.

                      3.    DEPUTY COMMISSIONER
                            HASSAN DISTRICT
                            HASSAN - 573 201.
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                                                   NC: 2023:KHC:29443
                                               RSA No. 1095 of 2021




4.    PROJECT DIRECTOR
      DISTRICT URBAN DEVELOPMENT
      AUTHORITY, D.C.OFFICE
      HASSAN - 573 201
                                                      ...RESPONDENTS

        (BY SRI B.M.MOHAN KUMAR, ADVOCATE FOR R1;
                   R2 AND R3 ARE SERVED)

     THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 27.09.2021 PASSED IN
R.A.NO.36/2019 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HASSAN, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 24.04.2018 PASSED IN O.S.NO.18/2015 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND BELUR.

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

                             JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellant and learned counsel for

respondent No.1. Though the respondent Nos.2 and 3 are

served, they are unrepresented.

2. The factual matrix of the case of the plaintiff before

the Trial Court in O.S.No.18/2015 is that work was entrusted to

the plaintiff by the defendant No.2 and in terms of the same,

the plaintiff carried out the development work of

Vishnusamudra Lake as per the work order issued to him dated

15.07.2008. Hence, he claimed the amount from the

NC: 2023:KHC:29443 RSA No. 1095 of 2021

defendant Nos.2 and 3. The defendants took the defence that

defendant Nos.2 and 3 are not liable to make payment to the

plaintiff and also took the contention that the plaintiff was

supposed to submit the stage wise report in support of the

development work. It is the case of the plaintiff that the

defendant Nos.2 and 3 have no right to cancel the work. It is

the contention of the defendants that the plaintiff has not

carried out the work as per the work order.

3. In view of the pleading of the parties, issues were

framed and the plaintiff examined himself as P.W.1 and got

marked the documents as Exs.P1 to P17. On the other hand,

the defendant No.3 examined a witness as D.W.1 and got

marked the documents as Exs.D1 to D5.

4. The Trial Court having considered both oral and

documentary evidence placed on record comes to the

conclusion that, in terms of the document of Ex.P2, work order

was issued and work was entrusted and in terms of the work

order, the plaintiff had completed the work and hence, decreed

the suit. Being aggrieved by the judgment and decree of the

Trial Court, appeal was filed in R.A.No.36/2019 and in the

NC: 2023:KHC:29443 RSA No. 1095 of 2021

appeal, it was urged that no such work was entrusted to the

plaintiff and he did not complete the work. Hence, the First

Appellate Court also formulated the point whether the plaintiff

has proved before the Trial Court that he has completed his

work as entrusted by the defendants and he is entitled for suit

claim.

5. The First Appellate Court also framed the point for

consideration with regard to whether the appellant has proved

that the suit is barred by time and non-issuance of statutory

notice is fatal to the case of the plaintiff and whether the

defendants are able to show that the plaintiff has not

completed his work, hence they have cancelled the contract as

contended in their written statement. The First Appellate

Court, considering the grounds urged in the appeal, answered

point Nos.1 and 3 with regard to the entrustment and

completion of work and having reassessed both oral and

documentary evidence placed on record, in detail discussed

with regard to the documents and the oral evidence available

on record and particularly, in Para No.25 discussed both oral

and documentary evidence placed on record and taken note of

the work order issued as per Ex.P2 on 15.07.2008, the plaintiff

NC: 2023:KHC:29443 RSA No. 1095 of 2021

also submitted report on 12.09.2008, the proceedings of

termination was inked on 07.05.2009 and observed that, in

order to prove the said factum, no documents are placed before

the Court. The First Appellate Court also in Para No.26 taken

note of the cross-examination of D.W.1, wherein he

categorically admitted that the original detailed contract

between the plaintiff and defendant No.4 is available with the

Municipality and not with the plaintiff and the same is

suppressed and not produced before the Court and considering

the same, the First Appellate Court drawn the inference and

answered Point Nos.1 and 3 as 'affirmative' and 'negative'

respectively that work was entrusted and work is also carried

out.

6. Regarding the point of limitation also, while

answering point No.2, the First Appellate Court in detail

discussed that the appeal is filed by the Municipality and other

parties are formal parties and suit is filed against the defendant

No.4-Municipality and other parties are formal parties. The

very fact that Municipality alone has filed the appeal shows that

they are the aggrieved parties. The First Appellate Court also

discussed the judgment of the Apex Court in CITY

NC: 2023:KHC:29443 RSA No. 1095 of 2021

MUNICIPAL COUNCIL, BHALKI VS. GURAPPA reported in

(2016) 2 SCC 200, wherein it is held that notice under

Section 80 is not necessary when suit is filed against the

Municipal Council, as the same is not a Public Office and no

notice is necessary when suit is filed against the Municipal

Council. The question of fact and question of law are also

considered by the First Appellate Court and also taken note of

the material on record, particularly the termination notice

issued on 07.05.2009 and Ex.P4 was issued on 09.06.2009.

Admittedly, legal notice was issued on 23.06.2012 and later,

Ex.P10 letter was addressed by the Municipality to the

concerned department and observed that the communication

was continuous and cause of action can arose only when the

Municipality rejects to pay the amount and also observed that

there is no merit in the contention raised by the defendants

that suit is barred by time.

7. The First Appellate Court also taken note of the fact

that plaintiff has completed his work in the year 2008 and

correspondences are made till 2012 and even in 2012,

defendant No.4 has addressed a letter to the Deputy

Commissioner and defendant No.3 requesting for advise in the

NC: 2023:KHC:29443 RSA No. 1095 of 2021

matter. Not even a single document is produced by the parties

to show that request of the plaintiff for payment is rejected in

any manner. Having taken note of the said fact, the First

Appellate Court also answered with regard to the limitation is

concerned and both the question of fact and question of law is

considered by the First Appellate Court. Hence, I do not find

any ground to frame any substantial question of law as

contended by the learned counsel for the appellant.

8. The substantial questions of law raised by the

learned counsel for the appellant in the appeal is that the very

suit itself is not maintainable against the Government

authorities in the absence of notice under Section 80(2) of CPC,

whether the suit of the respondent No.1 is hit by limitation

under Section 3(1) of the Limitation Act, 1963 and whether

both the Courts are right in entertaining the suit of the

respondent No.1 as the same is hit by limitation under Sections

283 and 284 of the Karnataka Municipalities Act, 1964.

9. I have already pointed out that the First Appellate

Court has taken note of both question of fact and law and

answered in detail by referring the judgment of the Apex Court

NC: 2023:KHC:29443 RSA No. 1095 of 2021

and also considered the factual events of the case that work

was entrusted in 2008 and the same was completed and

thereafter also correspondences were made and there was no

refusal, except taking the defence in the written statement that

work was not entrusted and not completed. When the material

available on record is considered and well reasoned order has

been passed by both the Courts and both the Trial Court as well

as the First Appellate Court have given anxious consideration to

both oral and documentary evidence placed on record, I do not

find any ground to admit and frame substantial question of law

and the question of law raised by the learned counsel for the

appellant has been answered by the First Appellate Court in

detail.

10. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

ST