Karnataka High Court
Shivalinga vs Karnataka State Minerals on 27 November, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2023:KHC:42749
RFA No. 2219 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.2219 OF 2019 (RES)
BETWEEN:
SHIVALINGEGOWDA
S/O JAVAREGOWDA,
AGED ABOUT 55 YEARS,
R/O K BYRAPURA GRAMA,
BAGUR HOBLI,
CHANRAYPATNA TALUK,
HASSAN DISTRICT - 34
...APPELLANT
(BY SRI PRATHEEP K C., ADVOCATE)
AND:
1. KARNATAKA STATE MINERALS
CORPORATION LIMITED,
Digitally (FORMERLY KNOWN AS
signed by MYSORE MINERALS CO. LTD)
VANDANA S BMTC SHANTHINAGAR,
TTMC BUILDING,
Location:
HIGH BANGALORE 560027,
COURT OF REP BY ITS MANAGING DIRECTOR
KARNATAKA
2. THE MANAGER
DEEP CONSTRUCTION,
DODDANAVAR COMPOUND AREA,
NEAR PORT, P B ROAD, BELGAUM TOWN,
BELGAUM TALUK,
BELGAUM DISTRICT 590016
3. SANDEEP
THE MANAGER,
PANEKATTE,
DEEP CONSTRUCTION PVT CO.
-2-
NC: 2023:KHC:42749
RFA No. 2219 of 2019
BAKTHRHALLI MINES,
K BYRAPURA VILLAGE,
BAGUR HOBLI,
CHANRAYPATNA TALUK,
HASSAN DISTRICT - 34
4. SENIOR GEOLOGIST
MINES AND GEOLOGY DEPARTMENT,
KHANIJA DIVISION,
NO.NAG-73, KUVEMPUNAGAR,
HASSAN DISTRICT - 34
5. THE DIRECTOR
MINES AND GEOLOGY DEPARTMENT,
NO.49, KHANIJA BHAVAN,
RACE COURSE ROAD,
BANGALORE 560001
6. THE TASHILDAR
TALUK OFFICE
CHANRAYPATNA,
DISTRICT HASSAN - 34
...RESPONDENTS
(BY SRI MURUGESH V.CHARATI, ADV. FOR R1;
HCGP FOR R4-R6,
NOTICE TO R3 IS DISPENSED WITH VIDE ORDER DT.16.08.2023;
R2 - SERVED & UNREPRESENTED)
***
THIS IS RFA FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 22.10.2018 PASSED IN O.S.NO.32/2016
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
CHANNARAYAPATNA, REJECTING THE PLAINT FOR NON-COMPLIANCE
OF ORDER AND NON-PAYMENT OF NECESSARY COURT FEE WITHIN
PRESCRIBED PERIOD AND NON-PRODUCTION OF STAY EXTENSION
ORDER.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the plaintiff is directed against the impugned
judgment and decree dated 22.10.2018 passed in O.S.No.32/2016
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by the Senior Civil Judge & JMFC, Channarayapatna, whereby the
said suit was dismissed on account of non-payment of Court fee in
terms of the earlier order dated 30.03.2016 passed by the trial
Court in P.Mis.No.3/2015 under Order VII Rule 11 (b) & (c) of
CPC.
2. The material on record discloses that initially
P.Mis.No.3/2015 was filed by the appellant - petitioner, in which, an
enquiry was held by the trial Court and came to the conclusion that
the appellant - petitioner did not possess sufficient means and
P.Mis.No.3/2015 was accordingly allowed by the trial Court and
directed to register the suit against the respondents - defendants
and permitted him to file the suit in forma pauparis as he claimed to
be an indigent person, seeking compensation and other reliefs in
relation to the suit schedule property.
3. Subsequently, the respondent No.1 having entered
appearance sought for recalling of the order, inter alia, contending
that the appellant - plaintiff possess sufficient means to pay the
Court fee on the plaint. Though the said application was opposed
by the appellant - plaintiff, the trial Court accepted the contention of
the respondent No.1 - defendant No.1 and passed an order dated
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05.12.2017 allowing I.A.No.2 filed by the respondent No.1 and
directed the appellant - plaintiff to pay the requisite Court fee on the
plaint.
4. Aggrieved by the said order dated 05.12.2017, the
appellant - plaintiff preferred W.P.No.1313/2018 before this Court,
which stayed the said order of the trial Court. However, in the light
of the judgment of the ASIAN RESURFACING OF ROAD
AGENCY PRIVATE LIMTIED AND ANOTHER VS CENTRAL
BUREAU OF INVESTIGATION - AIR 2018 SC 2039, the said
interim order passed by this Court was not extended and
consequently, trial Court directed the appellant - plaintiff to pay
requisite Court fee as directed in the earlier order dated
05.12.2017. Since the appellant - plaintiff did not pay the requisite
Court fee, the trial Court proceeded to reject the plaint by passing
the impugned judgment and decree dated 22.10.2018 and
dismissed the suit, aggrieved by which, the appellant - plaintiff is
before this Court by way of the present appeal.
5. Learned counsel for the appellant - plaintiff submits
that he has already paid the requisite court fee of Rs.71,600/- on
13.06.2023 before this Court and as such, the said Court fee may
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be transferred to the trial Court to be reckoned and treated as
Court fee paid on the plaint by setting aside the impugned
judgment and decree and to direct the trial Court to proceed with
the matter on merits. The said submission is placed on record.
6. A perusal of the material on record would clearly
indicate that the sole ground on which the plaint was rejected by
the trial Court was due to non-payment of Court fee by the
appellant - plaintiff in terms of Order VII Rule 11 (b) & (c) of CPC.
However, in view of the subsequent payment of the requisite Court
fee by the appellant - plaintiff in the present appeal on 13.06.2023,
the said omission on the part of the appellant - plaintiff to pay the
requisite Court fee resulting in rejection of the plaint has been
cured / condoned, as a consequence of which, the impugned
judgment and decree passed by the trial Court deserves to be set
aside and the matter be remitted back to the trial Court for re-
consideration afresh in accordance with law.
7. In the result, I pass the following:-
ORDER
(i) Appeal is hereby allowed.
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(ii) The impugned order dated 22.10.2018 passed in
O.S.No.32/2016 by the trial Court is hereby set aside.
(iii) The matter is remitted back to the trial Court for re-
consideration afresh on merits in accordance with law.
(iv) The Registry of this Court is directed to transfer a sum of
Rs.71,600/- paid by the appellant - plaintiff on 13.06.2023 to the
trial Court with a direction to the trial Court to treat the said amount
as Court fee paid on the plaint by the appellant - plaintiff in the suit.
(v) Liberty is reserved to the respondents - defendants to file
their written statement and contest the suit on merits.
(vi) Liberty is also reserved in favour of the parties to adduce
oral and documentary evidence on merits of their respective claim.
(vii) All rival contentions on all aspects of the matter are kept
open and no opinion is expressed on the same.
(viii) Parties undertake to appear before the trial Court on
08.01.2024.
Sd/-
JUDGE
VK/SRL
