Karnataka High Court

Smt. Dakshayanamma vs Daivajna Credit Co-Operative ... on 21 August, 2023

Bench: K.Natarajan

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF AUGUST, 2023

                        BEFORE

         THE HON'BLE MR. JUSTICE K. NATARAJAN

          REGULAR FIRST APPEAL NO.1919 OF 2017
BETWEEN:
SMT. DAKSHAYANAMMA
W/O SRI.RAJASHEKARAIAH,
AGED ABOUT 78 YEARS
R/AT NO.67, 5TH MAIN ROAD,
CHAMARAJPET, BENGALURU-560 018
                                           ... APPELLANT
(BY SRI R.B. SADASIVAPPA, ADV.)

AND:

1.     DAIVAJNA CREDIT CO-OPERATIVE SOCIETY
       REGISTERED UNDER THE CO-OPERATIVE SOCIETIES ACT
       NO.18, TANGAVELU COMPLEX
       BASAVANNA TEMPLE ROAD,
       ANCHEPET, BENGALURU-560 053
       REP BY ITS PRESIDENT
       SRI.B.V.GANAPATHI

2.     BRUHATH BENGALURU MAHANAGARA PALIKE
       HUDSON CIRCLE, BENGALURU-560 002
       REPRESENTED BY ITS COMMISSIONER.

3.     THE ASSISTANT EXECUTIVE ENGINEER
       BURHATH BENGALURU MAHANAGARA PALIKE
       BASAVANAGUDI SUB DIVISION
       BENGALURU - 560 004.
                                        ... RESPONDENTS

(BY SRI K. NAGENDRA KUMAR, ADVOCATE FOR R1
 SRI ARAVIND M. NEGLUR, ADVOCATE FOR R2 AND R3)
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      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC AGAINST THE ORDER DATED 11.10.2017 PASSED IN
O.S.NO.1202/2008 ON THE FILE OF THE LII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE
SUIT FOR DECLARATION AND INJUNCTION.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 11.08.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:


                               JUDGMENT

This appeal is filed by the appellant-plaintiff under

Section 96 of the Code of Civil Procedure, 1908 (for short

'CPC') for setting aside the impugned order dated

11.10.2017 passed by the LII Additional City Civil and

Sessions Judge, Bengaluru in O.S.No.1202/2008 for having

dismissed the suit on the preliminary issue.

2. Heard the arguments of learned counsel for the

appellant and learned counsel for the respondents.

3. The ranks of the parties before the Trial Court

is retained for the sake of convenience.

4. The case of the plaintiff is that the plaintiff filed

a suit for declaration and injunction claiming the

easementary right and also relief of permanent injunction

restraining the defendant from putting up construction in

Schedule 'B' Property which is conservancy lane but during

the pendency of the suit, defendant No.1 constructed the

building and the plaintiff sought for amendment and

mandatory injunction to remove the construction during

the pendency of the suit measuring 15 feet X 76 feet.

5. The plaintiff further contended that the plaintiff

is the absolute owner of the Schedule 'A' Property bearing

registration No.67, 5th Main, Sri Puttanna Chetty Road,

Chamarajapet, Bangaluru-560 018, measuring East to

West 32 Feet, North to South 40 feet (hereinafter referred

to as Schedule 'A' Property) bounded on the :


East by:    Indira Bai property, now purchased by first
            defendant
West by:    Manikchand

North by:   Mahadevamma's property

South by:   Giriyamma's property

6. The plaintiff further contended that a drainage

and water pipes of the Schedule 'A' Property were run into

conservancy lane where defendant No.1 claimed to put up

the construction on the property bearing No.158/2, New

Municipal No.66, situated at Puttanna Chetty Road, 5th

Main Road, Chamarajapet, Corporation division No.49,

Bangalore-560018, measuring East to West 15 feet, North

to South 76 feet (hereinafter referred to as Schedule 'B'

Property) bounded on the:

East by:    Late Nanjundaiah's House

West by:    Late Chandrasekharaiah's House,
            (Plaintiff's house)

North by: Puttanna Chetty Road (5th Main Road)

South by: Late Siddappa's House

7. If the defendant allowed to put up the

construction, the easementary right of the plaintiff will be

affected, therefore, prayed for decreeing the suit.

8. Per contra, defendant No.1 filed written

statement containing that the defendant purchased the

property under the sale deed dated 20.02.2003. He has

obtained the sanctioned plan from defendant No.2 and

legally putting up the construction. There is no

conservancy lane on the eastern side of the Schedule 'A'

Property and denied the allegation made by the plaintiff

and taken the contention that suit is not maintainable,

since defendant No.1 is the Co-operative Society

registered under the Karnataka Co-operative Societies Act,

1959 and defendant Nos.2 and 3 are BBMP and the

plaintiff could have issued two months prior Notice to

these defendants, therefore, suit is not maintainable.

Hence, prayed for dismissing the suit.

9. The Trial Court based upon the pleadings

framed several issues and one additional issue framed as

preliminary issue which is as under:

"Whether the Suit is not maintainable in the absence of issuance of statutory Notice to Defendant-1, U/S. 125 of Karnataka Co- operative Society's Act, and also other

defendants regarding absence of Notice under Section 482 of KMC Act? "

10. The Trial Court has dismissed the suit for non

compliance of Section 125 of the Karnataka Co-operative

Societies Act and Section 482 of the Karnataka Municipal

Corporation Act, 1976 (for short 'KMC Act') which is under

challenge.

11. Learned counsel for the appellant-plaintiff has

contended that the order passed by the Trial Court

dismissing the suit on the preliminary issue is not correct.

After framing of issues and adducing evidence, the Trial

Court ought not to have dismissed the suit and further

contended that the dispute between the appellant and

respondent No.1 was civil dispute. There is no necessity

for issuing any notice under Section 125 of the Co-

operative Societies Act. Even under Section 482 of KMC

Act is like Section 80 of the CPC, issuing notice can be

dispensed with by the Trial Court. Therefore, prayed for

allowing the appeal.

12. He further contended that if at all not complied

the mandatory provisions, the plaint could not return back

instead of dismissal. Hence, prayed for allowing the

appeal.

13. Per contra, the learned counsel for the

respondent No.1 has contended that issuing notice under

Section 125 of Co-operative Societies Act is necessary

and further contended that in the property purchased by

the respondent, there is no conservancy lane on the

western side of the property of the Society and on the

eastern side of the Schedule 'A' property, there is no

conservative lane as per the sale deeds. The claim of the

plaintiff is false and supported the order passed by the

Trial Court.

14. The learned counsel for respondent No.2 has

contended that the notice under Section 482 of KMC Act is

necessary as the order passed by the respondent No.2 for

granting sanction plan as per the Bye laws of the KMC Act,

therefore, without issuing notice, suit is not maintainable,

hence, prayed for rejecting the appeal.

15. Having heard the arguments and perused the

records, the point that arises for my consideration are:

"Whether the notices under Section 125 of Co-operative Societies Act and Section 482 of KMC Act are mandatory prior to filing of the suit against them?"

16. Learned counsel for the appellant has relied

upon the judgment of the Full Bench of the High Court of

Karnataka in the case of The Krishi Mattu Ksheera

Utpadaka Vividhoddesha Sahakari Sangh Niyamit

Bakkal and another vs. Sohanlal reported in AIR 1993

KARNATAKA 20, where the Full Bench of this Court has

considered the notice under Section 125 of Co-operative

Societies Act which is read as under:

" In the light of the foregoing dictum of the Supreme Court there can possibly be no doubt at all that the expression 'any act' appearing in Sec.

125 is referable not merely to an illegal omission

but also to an omission simpliciter. In the circumstance it behoves on our part to fall in step with the views of the apex Court as aforesaid and in the light of the same to hold that the expression 'any act' referred to in Sec. 125 is not confined to illegal omissions alone but also covers a mere omission simpliciter. In fine our answers to the questions formulated are:

(1) (i) Notice under Section 125 is mandatory, where the act in question is with reference to the society. Such notice is also necessary if the 'act' in question is with reference to an officer of the society and the 'act' or omission complained of relates to the Constitution, management or business of the society.

(ii) Notice is also mandatory where the 'act' in question covers both the society and the officer.

(2) The expression 'any act' referred to in Sec. 125 of the Act is not confined to illegal omissions alone but also covers a mere omission simpliciter.

5. While parting we must hold that in the light of our views herein, the decision in the case of Ankola Urban Co-operative Credit Bank and in the Bank of Citizens, Belgaum case as also the decision in Somwarpet and Agricultural Produce Marketing Co-operative Society Ltd. are no longer

good law. The matter will now go back to the Division Bench for disposal in the light of the findings recorded by us herein as aforesaid. "

17. The Co-ordinate Bench of this Court in the case

of Vinayaka Griha Nirmana Sahakara Sangha Ltd. vs.

Karnataka Appellate Tribunal reported in I.L.R. 1995

KAR 518 as held as under:

"The dispute relating to title and possession of land cannot be a dispute within the meaning of sub- section (1) of Section 70. The dispute does not relate either to the constitution, management or the business of the Co-operative Societies... The bar under sub-section (3) only relates to the issue being raised in a Civil Court and is not applicable to the Appellate Authority under Section 71 of the Act. The finality attached to the order of the Registrar only bars agitation of the same question in any Court of Law and does not relate to the Appellate Authority... The dispute is the present case relates to title and possession of the land, which dispute is purely of a civil nature and cannot be gone into by the Registrar."

18. The another Co-ordinate Bench of this Court in

the case of M/s. Deepa House Building Co-operative

Society Ltd., Mysore vs. Vaikuntegowda (D) by LRs

and Others reported in 2015 (4) KCCR 2983 has held

as under:

"KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959 - Section 125-Suit for partition and possession - Notice under - Not necessary as subject matter of suit is not one touching constitution, management or business of society."

19. The another judgment of this Court in the case

of Nazir Ahamad vs. Anwarpashya Sayyadmeera

Mujwar and Another reported in ILR 2018 KAR 3785,

it is held as under:

"KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959 (for short 'the Act') - SECTION 125 - Notice necessary in suits, filed against the Co-operative Society - Plaintiff's suit for injunction against the Society - Matter in controversy relates to business of the Society - Institution of suit without issuing notice under Section 125 of the Act - Dismissal of suit - Legality of -

HELD,

Non-issue of notice under Section 125 of the Act, before filing a suit against Co-operative Society is a ground for return of plaint, but not a ground for dismissal of suit."

20. In view of the pronouncement of the Co-

ordinate Benches and the fact of the case and dispute

between the plaintiff and defendant are not pertaining to

the business or constitution or management of the Society,

but it is only a civil dispute between the plaintiff and

defendant No.1 and the judgments in the case of M/s.

Deepa House Building Co-operative Society Ltd. and

in the case of Vinayaka Griha Nirmana Sahakara

Sangha Ltd., stated supra are squarely applicable for the

case on hand and there is no need for issuing notice under

Section 125 of the Co-operative Societies Act.

21. That apart, the boundaries of the plaintiff and

defendant No.1 was verified as per the Schedule 'A' and

Schedule 'B' property. There is no conservative lane on the

eastern side of the plaitniff's property, on the other hand,

the property of the defendant is situated. There is no

conservative lane as per the schedule in the sale deed

produced by defendant No.1 which reveals on the western

side of the property of the defendant property of Late

Chandrashekaraiah is situated. On perusal of the plaintiff's

property on the eastern side private property is situated,

there is no conservative lane. On the other hand, 15 feet x

76 feet belongs to the defendants property is situated.

However, the plaintiffs case is the defendant No.1 without

leaving the set back constructed the building and also it is

revealed from the photos during the pendency of the suit

that the defendant No.1 constructed the building.

22. The contention of the plaintiff is that she has

complained to the respondent No.2-BBMP but they have

not taken any action. Hence, the BBMP made as defendant

No.2 in the suit.

23. However, the plaintiff not issued any notice

under Section 482 of KMC Act. It is mandatory that a

notice is required to be issued to the defendant No.2 as

issuing the sanction plan, issuing the licence were all

business / affairs of the respondent No.2/defendant

No.2/BBMP. Therefore, the notice is mandatory. But no

such notice issued by the plaintiff. Therefore, without

issuing statutory notices, the plaintiff cannot file the suit

against respondent No.2 / BBMP.

24. The learned counsel for the appellant has

relied upon the judgment of the Co-ordinate Bench of this

Court in the case of Miss Karishma Anand vs. Union of

India, Passport Department and Another reported in

ILR 2012 KAR 2049 has held as under:

"CODE OF CIVIL PROCEDURE, 1908 - SECTION 80

- Scope and Object - Issuance of Statutory Notice to Union of India - Petitioner's prayer for dispensation - Dismissal of the application and order for return of plaint - Finding of the Trial Court is that plaintiff/petitioner has not sought for any interim relief and there is no urgency in the matter

- Pleaded against - HELD, The object of issue of notice under Section 80 of the Code of Civil Procedure is to provide an opportunity to the Government to consider the legal position to settle

the claim without compelling parties to go for litigation and also to afford an opportunity to the officer of the Government to scrutinise and settle the matter, if possible with a minimum action so that un-necessary litigation is avoided. However, Section 80(2) of Code of Civil Procedure also provides for the situation where notices can be dispensed with i.e., where the matter needs to be decided urgently. - FURTHER HELD, The proviso to Sub-Clause (2) of Section 80 does not specify that an I.A. seeking interim relief requires to be filed, to make out an urgency so as to dispense with the issuance of notice. On the other hand, suffice it if the plaintiff prima facie shows that there is some urgency in the disposal of the suit itself. In this context, even after registration of the suit nothing prevents the Court to give reasonable opportunity of showing cause in respect of relief sought by the plaintiff in the suit to the respondent/ defendant/ Union of India. - The observation made by the Trial Court that no urgency is made out by the plaintiff as no application is filed seeking any interim relief is totally uncalled for and the impugned order is liable to be quashed. - CODE OF CIVIL PROCEDURE, 1908 - SUB-CLAUSE (2) OF SECTION 80 - DISCUSSED."

25. The other Co-ordinate Bench of this Court has

also held that the Trial Court ought not to have dismissed

the suit and the plaint could have returned for compliance

of the mandatory provisions. However, the photographs of

the defendant No.1 reveals that the Society had put up the

construction without leaving any set back and in order to

make cement plaster, they have to use the property of the

plaintiff. Of course, the plaintiff counsel has contended that

it is the duty of the BBMP officials to follow up the

construction until completion of the construction and if any

violation, they have to take action. But it is seen from the

record that the BBMP officials have not taken any action

for having constructed the building by the defendant No.1.