Smt Vasanthi vs Shankara
2023 Latest Caselaw 6828 Kant

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                                                           NC: 2023:KHC:35384
                                                       RSA No. 1263 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO.1263 OF 2021 (INJ)

                   BETWEEN:

                   1.    SMT. VASANTHI
                         W/O LATE NANADA
                         AGED ABOUT 64 YEARS

                   2.    SRI UDAYA RAJ
                         S/O LATE NANADA
                         AGED ABOUT 36 YEARS

                   3.    SRI GIRI RAJ
                         S/O LATE NANADA
                         AGED ABOUT 34 YEARS

                         THE APPELLANTS ARE
                         R/AT MOODANIDAMBURU VILLAGE
                         UDUPI TALUK AND DISTRICT-576101
Digitally signed
by SHARANYA T                                                   ...APPELLANTS
Location: HIGH
COURT OF                        (BY SRI PRASANNA V.R., ADVOCATE)
KARNATAKA

                   AND:

                   1.    SHANKARA
                         S/O LATE SOMU
                         AGE MAJOR
                         R/AT H.NO.12-2-30
                         OPP: MODERN SCHOOL
                         VINODA NAGARA, KADABETTU
                         MOODANIDAMBURU VULLAGE
                         UDUPI TALUK
                         UDUPI TISTRICT-576101.
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                                               NC: 2023:KHC:35384
                                             RSA No. 1263 of 2021




2.   THE ASSISTANT COMMISSIONER
     KUNDAPURA TALUK
     UDUPI DISTRICT-576101.

3.   THE TAHASILDAR
     TALUK OFFICE
     UDUPI TALUK
     UDUPI DISTRICT-576101.
                                                  ...RESPONDENTS

     THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.08.2020 PASSED IN
R.A.NO.55/2017 ON THE FILE OF THE    PRINCIPAL SENIOR
CIVIL JUDGE AND CJM., UDUPI, DISMISSING     THE APPEAL
CONFIRMING THE ORDER DATED 06.07.2017 PASSED ON
IA.NO. IX IN O.S.NO.388/2013 ON THE FILE OF THE III
ADDITIONAL CIVIL JUDGE AND JMFC., UDUPI. ALLOWING THE
IA.NO.IX FILED UNDER ORDER VII RULE 11(a) AND SEC.151
OF CPC., FOR REJECTION OF PLAINT.

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

                           JUDGMENT

Heard the appellants' counsel.

This matter is listed for admission.

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

the Trial Court that while filing the suit for the relief of bare

injunction and suit is also valued under Section 26(c) and court

fee is paid only Rs.25/- and the relief is sought though it is

termed as permanent injunction, having perused the prayer for

a perpetual injunction directing the defendants, their persons,

NC: 2023:KHC:35384 RSA No. 1263 of 2021

workers and all persons claiming through or under them from

evicting the plaintiff from the plaint schedule property and to

direct the defendants to allow the plaintiff to continue in the

plaint property as the owner of the plaint property or from in

any way interfering with the peaceful possession and

enjoyment of the plaint property and hence an application is

filed by the first defendant before the Trial Court contending

that the suit is barred from entertaining the same and suit

relating to property coming under the PTCL Act and involved

under Order VII Rule 11 of Cr.PC. The defendants further

contend in the application that as per Section 5(2) of the PTCL

Act, the order passed by the Deputy Commissioner shall be

final and shall not be questioned in any Court of law and no

injunction shall be granted by any Court in respect of

proceedings taken or about to be taken by the Assistant

Commissioner in pursuance of any power conferred by or under

the said Act. Hence, the suit is expressly barred as per the said

provision of law and hence Civil Court is not having any

jurisdiction to grant any relief or expressed the bar in special

enactments.

NC: 2023:KHC:35384 RSA No. 1263 of 2021

3. This application was resisted by the plaintiff

contending that in the suit they have not challenged the order

of the Deputy Commissioner or the Assistant Commissioner and

only the claim is made with regard to the possessory right and

hence, the application filed under Order 7 Rule 11(a) of CPC

cannot be entertained.

4. The Trial Court having considered the grounds

urged in the application as well as the objection statement

filed by the appellants/plaintiffs perused the material on record

and also taken note of the pleadings made by the plaintiffs and

also the relief sought in the plaint and in paragraph No.12 also

made an observation that the plaintiff has dramatically sought

the relief before this court without disclosing on what right he is

to be allowed to continue in the property as owner. The entire

plaint is silent regarding it. Having taken note of nature of the

relief sought and also the pleadings made by the plaintiff and

also considering the order passed by this Court in

W.P.No.30189/2008, wherein held that civil suit is not

maintainable and the special enactment bars the jurisdiction of

the Court and also taken note of Sections 4, 5, 5(a) of the

Karnataka S.C. and S.T. (Prohibition of Transfer) Act, 1978 and

NC: 2023:KHC:35384 RSA No. 1263 of 2021

detailed order has been passed that the suit filed in the nature

is not maintainable before the Court and allowed the application

in coming to the conclusion that suit of the plaintiff is barred by

law.

5. Being aggrieved by the said order, an appeal is filed

in R.A.No.55/2017 and the First Appellate Court also having

considered the grounds urged in the appeal formulated the

point whether the plaint is liable to be rejected in view of the

specific bar provided under Section 5(2) of the Karnataka

Scheduled Casts and Scheduled Tribes PTCL Act, 1978 and also

whether the order passed by the Trial Court is illegal, perverse

and capricious.

6. Having considered the material on record

particularly the pleadings made in the plaint and also the relief

sought in the suit as well as the grounds urged by the

defendants comes to the conclusion that, when an application is

filed before the concerned authority, an order has been passed

and it has reached its finality and plaintiff has suffered an order

at the hands of the Deputy Commissioner also and adopted an

ingenious method in drafting the plaint and the same is cleverly

NC: 2023:KHC:35384 RSA No. 1263 of 2021

drafted though it is termed as injunction suit and relief is

sought directing the defendants to recognize the plaintiff as

owner of the suit schedule property and hence comes to the

conclusion that Trial Court has not committed any error and

also not found any perversity and rejected the appeal. Being

aggrieved by the said order, the present second appeal is filed

before this Court.

7. The counsel would vehemently contend that both

the Courts failed to take note of the very nature of the relief

sought in the plaint and also the counsel would vehemently

contend that suit is filed only for protecting the possessory

right and not claimed or questioned any order passed by the

Deputy Commissioner and no order is challenged before the

Civil Court and the very approach of the Trial Court and First

Appellate Court is erroneous and hence, this Court has to frame

substantial question of law that both the Courts have

committed an error in allowing the application filed under Order

7 Rule 11(d) and though it is termed as 11(a), comes to the

conclusion that it is barred by law and hence to admit and to

frame substantial question of law.

NC: 2023:KHC:35384 RSA No. 1263 of 2021

8. Having heard the appellants' counsel and also on

perusal of the plaint averments since this Court has earlier

directed the appellants herein to produce the copy of the plaint

and having considered the prayer portion though suit is valued

under Section 26(c) and relief is sought indirectly to direct the

defendants to allow the plaintiff to continue in the plaint

property as the owner of the plaint property and it is nothing

but a suit for declaration to declare that the plaintiff is the

owner of the plaint property and when he has suffered an order

before the concerned authority when the proceeding was

initiated under the PTCL Act and indirectly an attempt is made

to take the decree of declaration before the Trial Court and

though it is termed as permanent injunction suit and relief

sought in the prayer is nothing but a clever drafting and an

ingenious method is adopted by the appellant to take the order

of declaration to declare the plaintiff as owner of the property

and also taken note of the Trial Court by considering the plaint

averments and also observed that nothing is stated with regard

to the ownership is concerned and the same also observed by

the Trial Court as well as the First Appellate Court and hence, I

do not find any error committed by the Trial Court in

NC: 2023:KHC:35384 RSA No. 1263 of 2021

entertaining an application filed under Order 7 Rule 11 of CPC

in coming to the conclusion that suit is barred by law.

9. The very contention that it is only a claim for

possessory right also cannot be accepted having considered the

prayer sought in the plaint and the same is not only in respect

of possessory right and also indirectly sought for an order of

declaration to declare the plaintiff as owner and once he had

suffered an order before the Deputy Commissioner who is the

competent authority to take the decision with regard to

exercising the power under the PTCL Act. Hence, the grounds

urged in the appeal will not comes to the aid of the appellants

and question of framing any substantial question of law does

not arise by invoking Section 100 of CPC.

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

following.

ORDER

Second appeal is dismissed.

Sd/-

JUDGE AP