Karnataka High Court
Channamallappa And Anr vs The Managing Director And Anr on 2 July, 2024
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RSA No. 200126 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200126 OF 2020
(DEC/INJ)
BETWEEN:
1. CHANNAMALLAPPA
S/O SHIVASHARANAPPA HAVNOOR,
AGE: 42 YEARS, OCC: BUSINESS MILK PARLOR
R/O: HONNAKIRANAGI VILLAGE,
TQ: AND DIST: KALABURAGI.
2. PRABHULINGA S/O NIJALINGA MALIPATIL
AGE: 39 YEARS, OCC: AGRIL
R/O: VILLAGE MADBOOL,
TQ: CHITTAPUR, DIST: KALABURAGI.
...APPELLANTS
Digitally signed
by SWETA (BY SRI RAMCHANDRA K AND
KULKARNI
SRI RAGHAVENDRA R. MUDHOL, ADVOCATES)
Location: HIGH
COURT OF
KARNATAKA
AND:
1. THE MANAGING DIRECTOR
N.E.K.R.T.C. MAIN ROAD,
KALABURAGI-585102.
2. THE DIVISIONAL CONTROLLER
N.E.K.R.T.C. KALABURAGI DIVISION,
KALABURAGI-585102.
...RESPONDENTS
(BY SRI DEEPAK V. BARAD, ADV. FOR R1 AND R2)
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RSA No. 200126 of 2020
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO CALL
FOR RECORDS AND ALLOW THE REGULAR SECOND APPEAL BY
SETTING ASIDE THE JUDGMENT AND DECREE PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE KALABURAGI IN R.A.
NO.25/2017 DATED 13.03.2020 AND ALSO JUDGMENT AND
DECREE PASSED BY THE IV ADDL. CIVIL JUDGE AND JMFC
KALABURAGI IN O.S. NO.134/2013 DATED 10.02.2017 AND
FURTHER TO DECREE THE SUIT OF THE PLAINTIFFS WITH
COST THROUGHOUT IN THE INTEREST OF JUSTICE; TO
REMAND THE MATTER TO THE TRIAL COURT WITH
DIRECTIONS TO FRAME PROPER AND NECESSARY ISSUES AND
DISPOSE OF THE CASE ON MERITS.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Against the concurrent findings of facts by the Courts
below, the plaintiffs are before this Court in the Regular
Second Appeal.
2. Parties herein are referred to as per the ranking
before the Trial Court for the sake of convenience.
3. Suit for declaration declaring that the
cancellation of agreement dated 12.06.2010 is void, illegal
and against law and further relief of mandatory injunction
directing the defendants to provide alternative
accommodation of shops at newly constructed central bus
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stand to run a milk parlour business and for indemnifying
the losses sustained by the plaintiffs. The plaint avers
that the plaintiffs are licensees under the agreement dated
01.08.2009 to run milk parlour in an open space at shop
Nos.2 and 3 of Super Market City Bus Stand, Kalaburagi.
According to the plaintiffs, period of license was for three
years w.e.f. 01.08.2009 to 31.07.2012 and in view of the
agreement, the plaintiffs have deposited the security
amount and the plaintiffs were running their milk parlour
business as per the agreement. It is further averred that
in light of the road widening scheme adopted by the City
Corporation, Kalaburagi, the entire structure made by the
plaintiffs was dismantled and has caused heavy loss to the
plaintiffs. It is stated that the plaintiffs are entitled for
reimbursement of the loss from the defendants which is
the NEKRTC, Managing Director and Divisional Controller.
Further, the plaintiffs had approached High Court by filing
a writ petition against the act of the respondents and
further direction against the defendants to provide
alternative shops at newly constructed Central Bus Stand.
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As it was brought to the notice before the writ Court that
plaintiffs' licenses were revoked as per the order dated
12.06.2010, the writ petitions were disposed of.
According to the plaintiffs, the cancellation of license were
manipulated and prepared after the demolition and
dispossession of the said shops and the plaintiffs have not
violated any terms and conditions and the rents have been
paid regularly by the plaintiffs. It is the case of the
plaintiffs that they have sustained loss to the tune of
Rs.2,77,561/- and a sum of Rs.2,99,831/- due to the
dispossession of the said shops.
4. On service of notice, the defendants appeared
and filed their written statement inter alia contending that
the plaintiffs have failed to pay license fee and service
taxes as per the terms and conditions of the agreement
and having failed to fulfill the terms and conditions, notice
was issued on 10.12.2009 to the plaintiffs to pay license
fee from September, 2009 to December, 2009. Though
the notices were served upon the plaintiffs, the plaintiffs
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having failed to pay license fee and service taxes, the
defendants revoked the license as per the agreement
terms. It is contended that the plaintiffs have voluntarily
vacated the suit property after realizing the violation of
the terms and conditions of the agreement and the writ
petitions preferred by the plaintiffs have been dismissed as
no sufficient grounds to demonstrate their rights to seek
the said direction.
5. Based on the pleadings, the Trial Court framed
the following issues:
"ISSUES
1. Whether plaintiffs prove that the orders of
cancellation of agreement dated: 01.08.2010 issued
by the defendants is illegal, void and against law?
2. Whether the plaintiffs are entitled for alterative
accommodation at Central Bus-Stand, Gulbarga for
running Milk Parlors?
3. Whether plaintiffs are entitled for the reliefs, as
prayed?
4. What decree or order?"
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6. In order to substantiate their claim, the special
power of attorney holder of the plaintiffs examined himself
as PW-1, marked documents at Exs.P-1 to P-7. On the
other hand, the Divisional Traffic Officer is examined as
DW-1, marked documents at Exs.D-1 to D-9.
7. The Trial Court, on the basis of the pleadings,
oral and documentary evidence, arrived at a conclusion
that:
(i) the plaintiffs have failed to prove that the
orders of cancellation of agreement dated
01.08.2010 issued by the defendants is
illegal, void and against law;
(ii) the plaintiffs have failed to prove that they
are entitled for alternative accommodation
for running a milk parlour; and
by the judgment and decree, the Trial Court dismissed the
suit. Aggrieved, the plaintiffs preferred appeal before the
first appellate Court. The first appellate Court, while re-
appreciating and re-considering the entire oral and
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documentary evidence, concurred with the judgment and
decree of the Trial Court. Aggrieved, the plaintiffs are
before this Court in the second appeal.
8. Heard the learned counsel appearing for the
parties and perused the material on record.
9. Suit of the plaintiffs seeking for declaration that
the cancellation of the agreement by the defendants is
illegal and void. The plaintiffs had entered into an
agreement with the defendants and were granted license
to run a milk parlour at open space Shop Nos.2 and 3 as
per the agreement dated 01.08.2009. The plaintiffs
occupied the said shops and commenced their milk parlour
business by investing the money. The agreement was for
three years i.e., commencing from 01.08.2009 and ending
on 31.07.2012. The defendants, by an order dated
12.06.2010 cancelled the agreement entered on
01.08.2009 as the plaintiffs failed to pay the license fee
and the service taxes. As the plaintiffs failed to fulfill the
requirements as per the agreement, the defendants have
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cancelled the agreement with the plaintiffs as per the
terms and conditions entered in the agreement which is at
Exs.D-7 and D-8. The condition Nos.14, 18 and 23 of the
agreement have been violated by the plaintiffs and the
defendants being an authority, cancelled the agreement
and forfeited the deposited amount. The question that fell
for consideration before the Courts below was whether the
act of the defendants in canceling the agreement dated
01.08.2009 was justified or not.
10. The cancellation of the agreement by the
defendants was on the ground that the license fee and the
service taxes as per the agreement condition Nos.14 and
18 have not been paid. The burden was on the plaintiff to
prove that they have paid the license fee and service taxes
regularly. No materials are forthcoming to indicate that
they have paid the license fee and the service taxes. In
the absence of the same, the burden which was on the
plaintiffs was not discharged. Other than the mere
assertion by examining the power of attorney holder as
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PW-1, that they have been paying the fees within 5th day
of each month as per the agreement, no corroborative
evidence is forthcoming. The plaintiffs having failed to
produce any material documents to prove their contention,
the Trial Court arrived at a conclusion that the plaintiffs
have failed to prove that the defendants have illegally
terminated the agreement.
11. The relief of mandatory injunction sought by
the plaintiffs is to provide alternative accommodation of
shops at newly constructed Central Bus Stand. The
alternative prayer is on the ground that the shops were
demolished by the City Corporation without notice while
the contract was in force. Admittedly, the damage or the
demolition is not by the respondents but by the City
Corporation for the purpose of road widening. If any
grievance was there by the plaintiffs it had to be made
before the appropriate authority. The defendants cannot
be called upon to provide alternative shops on the ground
that the shops have been demolished by the City
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Corporation and moreover so when the license of the
plaintiffs have already been cancelled by the defendants.
It is also material to note that W.P.Nos.83110-83111/2010
preferred by the plaintiffs was dismissed observing that
when the contract is cancelled and in view of the
cancellation of the license granted, could not automatically
entail the plaintiffs herein to seek for direction to grant
license to the plaintiffs by the authority and to run their
business at a newly constructed building. The license of
the plaintiffs have been cancelled for violation of contract.
The plaintiffs have not made out any ground for
declaration that the cancellation of the agreement is
illegal. The claim regarding the financial loss caused to
the plaintiffs for dispossession of the shops was by the
City Corporation as stated supra, the plaintiffs may
approach the appropriate authority seeking for
compensation. The Trial Court on consideration of the
entire oral and documentary evidence, dismissed the suit
of the plaintiffs.
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12. The first appellate Court, being the last fact
finding Court, re-assessed the entire oral and
documentary evidence and held that the defendants have
cancelled the license of the plaintiffs due to the violation of
the terms and conditions of the agreement dated
01.08.2009 and in the absence of any documents
produced by the plaintiffs that as per the terms of the
agreement they have regularly paid the license fees and
the service taxes, the plaintiffs are not entitled for the
relief of declaration and the revocation of license issued by
the defendants cannot be said to be illegal. The courts
below, on finding of facts, have rightly appreciated the
entire oral and documentary evidence and the same does
not warrant any interference by this Court under Section
100 CPC. No substantial question of law arises for
consideration.
Accordingly, this Court pass the following:
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ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
JUDGE
SWK
CT: VD
