Karnataka High Court
H K Shankare Gowda vs Anupama Rao on 14 November, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC:46289
RSA No. 750 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO. 750 OF 2019 (MON)
BETWEEN:
1. H.K.SHANKARE GOWDA
S/O KENCHEGOWDA,
SINCE DECEASED BY LR'S
1(a) VIVEK.H.S.
AGED ABOUT 36 YEARS,
S/O LATE H.K.SHANKAREGOWDA,
1(b) VINAY KUMAR.H.S.
AGED ABOUT 39 YEARS,
S/O LATE H.K.SHANKAREGOWDA,
BOTH ARE R/AT NO.556,
NEW KANTHARAJ URS ROAD,
KUVEMPUNAGAR, MYSURU-570 023.
Digitally signed by
...APPELLANTS
THEJASKUMAR N (BY SRI. KRISHNAMURTHY.G.HASYAGAR., ADVOCATE)
Location: High
Court of Karnataka AND:
ANUPAMA RAO
W/O RAGHAVENDRA RAO,
AGED ABOUT 47 YEARS,
NO.1174, 2ND CROSS,
GANGE ROAD, G & H BLOCK,
KUVEMPUNAGAR,
MYSURU-570 023.
...RESPONDENT
-2-
NC: 2024:KHC:46289
RSA No. 750 of 2019
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908,
SEEKING CERTAIN RELIEFS.
THIS REGULAR SECOND APPEAL IS LISTED FOR
ADMISSION, THIS DAY, THE JUDGMENT IS DELIVERED AS
UNDER:
ORAL JUDGMENT
Sri.Krishnamurthy G.Hasyagar., counsel for the
appellants has appeared through video conferencing.
2. This is an appeal from the Court of I Addl. District
Judge, Mysuru.
3. For the sake of convenience, the parties are
referred to as per their status and rankings before the Trial
Court.
4. The brief facts are these:
The plaintiff is the tenant and the defendant is the
landlord. They entered into agreement of lease on 05.09.2011
with respect to the suit schedule property of ground floor
bearing D.No.556, New Kantharaja Urs Road, Kuvempunagar,
Mysore. It is said that the landlord requested the plaintiff to
quit and deliver the vacant possession of the premises in the
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month of April 2012. The defendant landlord agreed to refund
the advance amount of Rs.1,00,000/- while vacating the
premises. Believing the version of the landlord, the plaintiff
shifted her belongings from the lease premises on 02.06.2012.
However, the landlord did not refund the advance amount and
claimed excess amount of Rs.45,000/- towards damages.
Hence, the plaintiff was constrained to issue a legal notice on
05.06.2012 calling upon the defendant to collect the key and
return the advance amount. But the defendant instead of
complying, issued a reply notice. Hence, the plaintiff was
constrained to file a suit.
After service of the suit summons, the defendant
appeared through his counsel and filed written statement
denying the plaint averments. Among other grounds, he prayed
for dismissal of the suit.
Based on the above pleadings, the Trial Court framed
Issues. To substantiate their claim, the parties led evidence and
documents were exhibited. On the trial of the action, the Trial
Court vide Judgment dated 28.07.2015 partly decreed the suit
and directed the defendant to pay the suit claim amount of
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Rs.80,400/- to the plaintiff with interest at the rate of 6% per
annum from the date of suit till realization. The defendant
assailed the Judgment of the Trial Court before the First
Appellate Court in R.A.No.380/2016 on the file of I Addl.
District Judge, Mysuru. On appeal, the First Appellate Court
vide Judgment dated 09.01.2019 dismissed the appeal and
confirmed the Judgment passed by the Trial Court. Hence, this
Regular Second Appeal is filed under Section 100 of CPC.
5. Counsel for the appellants in presenting his
arguments submits that the Judgment and Decree of the Trial
Court and the First Appellate Court are contrary to the law and
facts and the evidence available on record.
Next, he submits that the Court of facts have failed to
consider the material available on record.
A further submission is made that the defendant has
claimed damages of Rs.35,000/- for use and occupation of the
suit schedule property by the plaintiff and towards minimum
electrical and water charges.
Lastly, he contended that the findings recorded by both
the Courts lacks judicial reasoning. Therefore, he prayed that
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this Second Appeal may be admitted by framing substantial
questions of law.
6. Heard, the arguments and perused the Judgment
and Decree of the Trial Court and the First Appellate Court with
care.
7. The facts are sufficiently stated and the do not
require reiteration. The issue revolves around a narrow
compass. The suit is one for recovery of money. The plaintiff
claimed refund of advance amount from the defendant. It is
pivotal to note that the defendant instead of returning/
refunding the advance amount, contended that the plaintiff is
liable to pay damages. However, he did not claim the said
amount by way of set off. The Trial Court extenso referred to
the material on record and rightly concluded that the plaintiff
has established her case and partly decreed the suit. On an
appeal, the First Appellate Court has examined the evidence on
record and re-appreciated it. I am satisfied that it has been
appreciated from the correct perspective. The concurrent
finding of facts, however erroneous, cannot be disturbed by the
High Court in the exercise of the power under Section 100 of
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CPC. The substantial question of law has to be distinguished
from a substantial question of fact. In my view, the findings
recorded by both the Courts are either vitiated by non-
consideration of relevant evidence or by an erroneous approach
to the matter. Where based on evidence on record the Trial
Court and the First Appellate Court had concurrently arrived at
a finding of fact, the High Court in the Second Appeal cannot
reverse the said concurrent findings under ordinary
circumstances.
It is perhaps well to observe that after the 1976
amendment, the scope of Section 100 of the CPC has been
drastically curtailed and narrowed down. Under Section 100 of
the Code of Civil Procedure 1908 (as amended in 1976) the
jurisdiction of the High Court to interfere with the judgment of
the Court below is confined to hearing substantial questions of
law. Interference with a finding of a fact by the High Court is
not warranted if it involves re-appreciation of the evidence.
No substantial question of law arises for consideration in
this appeal. As a result, I find no merit in this appeal.
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8. Resultantly, the Regular Second Appeal is rejected
at the stage of admission.
In view dismissal of the appeal at the stage of admission,
pending interlocutory applications if any are disposed of.
Sd/-
(JYOTI MULIMANI)
JUDGE
TKN
