IN THE HIGH COURT 0}? KARNATAKA T
CIRCUIT BENCH AT GULBARGA
DATED THIS ma 15TH DAY OF' JULYA T 1
THE HOIWBLE MR. JUs'1f:<;E A'
THE HONBLE _NAf§Ai§AJ
REGULAR
nmwznn:
1. B.Anand Sh€:tty._ 5..
3/0 36533"
Represented by "'<)1de;"'~«___ _ --
Sri Anznachaiahan * '
S/0 K.V.Bhat,
R/0 I Fioor, Leeds_4Vidya.N£ga1j_
C}ulmI~m~585 F102." *-
W/c§<A.1}at1d,S--hetty._
Rcpremnizcd' by:"21cr.A§"htK.Homcr
" Sri Anmachal
",3"/'o K.V.Bimt,,__A% 35 years
_ _R_/0 "}I_3'Ioor, Lcegls Vixiya Nagar
(§2iI:53afga--L585" 102.
V
S!¢M0Iaappa Shorty
V Repmmzited by his P.A.I~IoIder
Q ' --'.'3;ri. Bhat
"S "0 K.V.Bhat, A d 35 years
I Ifietge
V--R:/0 IF'1oor,
Vidya N.-aw
(}u1barga.--585 102.
4. Raju Shetty
S o Ganamiah Shctty
Re/apresented by his 1?'.A.Holder
Sri Ammachal Bhat
S/o K.V.Bhat, Aged 35 years
R / 0 I Fioor, Leeds Vldya Nagar
Gulbarga-585 102.
(By Sriyuths M.J.A1va and Nagaxaga I-I{$g;¥.e,"TjAdvS'.-3 ,, .
AND:
1. The Karnataka Housing Board
Cauvcry Bhavan, V
Bangalore--56O O09 _
Represented by its Commissioner; F
2. The Executive _,
Karnatakafiousing _
Gulbarga Division;
Gulbarga-585 I01
3. The Asst.Révei1u<-: __
The Competent" 'Au"t1_1ority7 S " "
Kaxnataka Housing ' '
Gulmrga msvision _ "
.....
4.
fiegzovexyp Housing Board
‘t€3auv_cry Bhavan v
. . .B}z_:-‘¢p,gaIgI’e– 560
‘ E».._’ ‘i’¢£r”.£>_.S,I{talka:11i
~ A Asst. Revenue (mm &
‘_ Cémpeteixt Authority KHB, Gulharga
‘ V .Now..aLt’KfiEiB, Mysore Divisian
” L4 _ ‘ L LM”ys»;>,=:*e–570 001. …Respor1dents.
(By Sri Basavaraj Nfiabamsi for R1.
R2, R3, R4 and R5 Sewmi)
K/
This Regular First Appeal filed under Section of
CPC against the Judgment and Decree dt.2O.12.2QU5Tix1
O.S.No.374/2000 on the file of the 11 Addl. «3:i1€i.ge” H
(Sr.Dn), Gulbarw at Gulbarga dismissing the sj1itsj’*~fo;*«.-
recovery of damages.
This Regular First Appeal ‘on7._fo1I”
this day, Gopala Gouda, J, foHoix’i;;1g§– ~
k L x
This Regular
questioning the correcfxiess and Decree
passed by the (in short
‘the Trial urging Various
gI’ounds_.aI1d__.V same and decree
the s11i:fv–__f0r :Rs.11,25,{)G0/- towapds
$.§1is.’Ji1dvg:e.ent, for the sake of brevity, the
elf gm “is: is referred to as mt their rank1I1g’
Trial Court.
3. pxaimers have filed suit claiming damaw
r sRg.;s1,25,mo;w mm the defendants with interest 33:
of 21% pa. from the date of suit til} the
V V ‘ A . realisation of entire amount.
4.Ttmr:aseef£hep1aintifi’sisthat,meyaIethe
tenants of shops mating Nos. 1,2,3 and 4 in the gamma
floor and Room No.4 in the second floor of
Housing Board, Old Shopping Complex .. V
Mill Road, Gulbarga. They have been GI}
business in the said premises ‘styv1e:’of
M/s.Hotei Kamal since the
possession of the wt} shops ei’ {he
same was taken by thefi
5. Then: wg.s% pxaintiss and
the defendsgsts Gulbarga in
Misc. of the shops which
were fpdesfioning the correctness
of the denis;;d..I£et:_1;:es” to the plainflfis by the
, A(Isfe;*;€;1_a’V1:1;i:s :3 towards arrears of rent, which
on 10.11.1997 with a liberty to
nmssary steps as provided under
Karnataka iieusiilg Board Act (in short
‘ As}. It is the case of the plaintifls that defendants
and 5 without yvi’ mg notice to the piainiziffs as
fprevided under Sec.45 of the Act Imd with Rules
framed thsneunder for the purpose of taking possession
of the shops fmm the plaintiffs, they tried to evict tzhem
M
forcibiy and tress–passed into the premises whichf’w_as
in occupation of the plaintiff on 10. 12. 1997
9.00 am. by misusing their eflicial ‘V
mala fide intention by and’
documents. Further, it is staied
on that day the defendantfi» the
movables mentioned stuffs
mentioned in with the
help of of plaintifis,
which In lawful.
1 fie defendants action
was 11igh’11a4§ude(i”Vanii’ the Inandatary provisions
V cf ting; Act ns fhey have taken possession of
from the plaintiffs without giving’ any
to pay the allaged arrears to amid
H V’ the evic1::i¥:>I;; They further stated that they have
‘ W H ” the illegal acts of the defendants by way of
.44AjA’Win’.§f’p£§fifions and the same was allowed on 3. 4. 1998.
T they also paid 3. sum of Rs.3,94,,Oi()/~ on
u A 26.12.1997 t0 the debt Board under pmtmt towartis the
alleged ar1%s af rent tewards the shops which was in
‘\a~M/
6
occupation of the plaintiffs. Further it is stated that
defendants preferred writ appeals against the
passed in writ petitions filed by the
saifi writ appeals were dismissedflmen 23.’7T1V1e” ‘*
plaintiffs allege that inspite of passmga
court in the writ petitions theVdefend’ant:s vrest-sre%
the possession of shops ‘ and
therefore they ? — on
27.7.1998 befsre’ these, the
plaintiffs – against the
defendafiitsviiai ‘ aii5i.?V:a.b1es and food stuffs
as stated in’ and “B” of the plaim;
re5P3<_:tively " A ' ~
. _ V" m'te1'…tI1e siJ.if&s11mmans were served, umn the
appeared through their counsel.
2 _ Defemdaxjats and 3 fikzd common written statement and
W " 'T serendazxts 1 and -4 did not file their written statement.
defendant N's.5 has filed his written statement
VT "0i1: 14. 12.2004 the said Writtexx statement was not taken
H. on record by the ma! court on the groimd that he failed
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7
to file the written statement within the stipulated
under order VIII Rule 1 of CPC.
8. Defendants 2 and 3 in their
have admitted that the shops I-“Were. ‘fine ‘V
piaintiffs as averred in the piaint.
the plaintifls were irregular payn 1’en.t
that they were in of t£f1éy’atimitted
having issued demand claiming
arrears of rent I ‘ taken
up by the Court and in High
Court, written statement
have dexiicgifhe :_’:gtxV.f’:e”i*1’1″1eI1ts regarding allegations
of _ action on their part and
tak1I1g ” .’« possession of the shcsps which were in
p1a.intifl’s. Further they contended that
the Aarc not entitied far any damags as
% égaimgd by them. They have also contended that in the
31:98 the plaintifis had fiied a suit fer injunction in
T No.63′?/98 and subsequently withdrew the said suit
‘4 3 unconditionally.
9. The learned trial Judge has framed the issues
on the basis of pleadings of the parties –
determinafions. On behalf of the V
witnesses were examined as PW
documents Exs.P1 to P37 in jI.1sti1ie€z;:iG:1 of
On behalf of defendants ‘SW2
The ‘E’r1a’ .1 Court f1″amez§ ‘4 deieiziiixaation
which read as fellews:
” 1-‘%V11ééth.¢r. ” 913~in1’3fi”$’***”P1’9V€
that they”_««.have_ sustai-nVe<i 'degr-.ages of
Rs. 1 1,25,'{"..'¢(}§)/~ Schedule A
anti "B of '
_ 2. 'WI1ei1'1e;~.._the _.p1aintiffs prove
that~~..t11e defe:ida1"1–t.s"'s1*e jointly and
severaiiy i1,ab!._e to 'pay the damages as
V» in. suit?
Whether the plaintiffs are
V _ ” reliefs claimed?
‘A . Order or Decree?”
. .. n ‘_ }0 .” The Trial Court after appreciation of evidence
‘sis: jéeesrd has answered Issue Nos. 1 ts 3 in the negative
T issue No.4 as per final order. Consequently it has
A. passed the Judgment dismissing the suit under appeal.
\§3:¥///
The cerreemess of the same is questioned in this apgyeal
urging various gonads.
1 1. It is cantended by the learned u
plaintiffs that the trial Court
evidence on record and therefore, the_ fi;1Vdi1’1}gSA._reeordiedt
on the eontentieus issues by enideeeus in law.
Hence requested to seteeside the and decree
and further it Court has
committed the defendants
have _ to the movables
nrzentiofied L ieets¢hté¢u1¢ e to the plaint, in the
deeuments’gfi1;9.r1§er1.’4Ve’fs” :é’;x.P»29 to Ex.P-31, which are
, their=<%1.oe¥;,xzneI1tS "iIi.T§SpCCt of the premises in question
_said documents would elwrly estabiish
tt1e.t'aet is mused by the defendants to the
. 44 'meveiaiefi tiespite the apfxliant pmdueing adequate
"'~evt;ie"mee on reeerd, the trial Judge has recorded the
' ..__""'e:*rq:)neeus fmdings on the eententieue issues.
12* Further another geund of attack of the
impugned juément is that the ma} Ceurt has failed te
10
frame the issue with regard to the genera} damages
caused to the food items mentioned in the ‘B’ 2.
propert}; Therefore, they have prayed to V’
impugneci judment and decree, tthet
the trial Ceurt has erred netV._ ~.oi”<'ier~.:'
passed in the writ petition preéetzed 16
dated 3.4.1998, wherein Vuheitl that
defendants actien is decision is
upheld by eppeal as per
Ex.P.24 ~ writ appeal. The
5' learned counsel on
behah' et' ' the, baked items and other
goods::i1;:.: M ..z§i'tie1es mneoned seheduie "B" to the
perishable in Iiature due to lapse of time
Aft ' taking illegal poeseesien of the shops
. and"."'re–ci:eiiv'eIy of the possession of those articles.
it is a fetal lees to the plairltiffs. This impertant
of the matter is not taken into consideration by
" tfie learned trial Judge at the time of answering the
eentenfieus issues framed in the suit. Therefoxe, the
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11
learned counsel submitted that the impugned judgment
is liable to be set aside.
13. We have heard the learned 3.3:-l,l€;
Krislmachar on behalf of the
impugned judment and also cop}; .
made available to us at ‘of this
appeal by the learned Having
regard to the cause of plajnt and it
is an dispossession
of the 12.10.1997. On
the azficles mentioned in “A”
schedule were illegally, taken
. A_a.wa§/’fibyi dele:’1da11ta and alse damage was sustained
articles mentiened in Sehwuled “B” to
thee .1:$ia§z1li.. the claim of the pxamues is that
azelezztlfled for damages at 125.}. 135,000] -.
” , We have sue» meta examined the question of
‘ :li1:xf=.itation regarding irtstimtion of the suit by the
» ‘4 plaintiff theugh there is no plea taken by the defenéafits
befare the vial Court in their written statemem, as the
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12
same is pezrmissible in View of Section 3 of ._ the
Limitation Act 1963 which provisions road thus:-.. ‘ .1 V’
“3. Bar of Limitation: (1) Subjectil _
to the provisions contained in sections o
4 to 24 (inclusive), every’ suit” V’
iristituted, appeal prcfexrm,” ‘ 3}’.J.d:iA ” V
application made after _ A’ _ ‘
period shall be dismissed, “‘alt}1ough*V~i- A . V’
limitation has not up.__a:sxa._
defence.” V’
15. Article 91(3)’ o_fThe–‘_S<:;h§id1Ji¢"'to the Limitation
Act reganiing period 'of.' _1imitatio:i". under
Secfions 2, of::'thé_ article the
period is prmcribed for
institution '
Vi""'Eér' VViF0.Ii&.'f1h3Vii ' tam g or injum g
or _vvrongt';_111'y detaining any other
._ 'ézmoifip movabie property."
V " we have framed the issue regarding
tho for institution of the suit by the plaintiffs
'damages. The foilowing additional issue is
i " in this appeal regarding the limitation. Whetimr
. K suit instituted by the p1aint:ifl's claiming damages is
' iiowithin three years fiom the date of alleged taking illegal
possession of {hf} Axficies and food items mentioned in
\':x:v//
13
the Schedule ‘A’ and ‘B’ to the plain: by the defendants
frorn the piaintiffs 011 10.12. 1997.?
17. The said additiena} issue is answargééi
the plaintiffs for the following reasoflsz… A H ‘
Without remandifig the ca5€3 ?-‘Q
this court is of the View on
the above additional issug fiby”-Ausviis this
appellant itsefi’. The by the
plaintiffs in 12. 1997 the
defendants into the shops
which was % in __i)f the plaintiffs in their
absence tx:’:ithV£)t1tVV’a;”1Vy..V or authority of law and
4, fqrcéifiy htlxem and removed all their movables
kLk%%ka;-451′ j carried with them forcibly by
misqéifig position takmg’ help of the mlice.
“J,fl:1ercby:f3:~.e3Vz were dispcssessed from the pramiaes and
‘ ” the axficltts mentiuned in gchedule ‘A’ and ‘B’,
h caused damage in rt-spect of food arficlcs
:.’ment;ioned in scheduie ‘B’ as they are perifihable gomis.
Having regrd to the aferesaid admitteczi fact pleaded by
the p1ai11tifi’s and further the 311%.: was filed 0:1
‘ X”
l4
14.12.2000, the same is barred by li1}:1itatien_…___as
prescribed under Article 91(8) of the schedule -.4
Limitation Act. Therefore, the institution of ”
reliefs as prayed by the plaintiffs _ ‘_ V’
as the same is filed after lapse of ‘yea’.3>.fe~:.Afil’:31?a’V
date of cause of action arose ‘meni.
itself the suit is liable we
answer the abovelegal
18. Tm;1g:*;T l’ lme aforesaid
additional arose for our
this Appeal, we have
also gone’ and reasons recorded by
the learned oil the contentious issues 1 to 3
ed . Juflge an pmper
ofvlihcts and legal evidence on record has
V V’ . recoi'<lec1':ei fihding of fact with reference to the amount
by the plaix1tifl's at Rs.3,94–,0l()/– towards
–‘ of rent on 26.12.1997 subsequent to the
” hdiepessession of the plaintifie from the premises and
after filing writ petitions is a strong eimmnstanee
against the piainfifis fer dismissing the suit. The
¥:w./
yr,
16
erroneeus er suflers from errm’ in law. The very fact
that occupation charges of Rs.3,94,000/- is not _V
the piaintifib itself was the cause of action _
defendants to disposscss the 1 >
possessien of the premises. In
Court: has directed the Board ts; mémfé ‘A
the shops that was in occupatififfi-..f;>f–.t»hc that
by itself does not consfitfiic. Atlfie damages
in respect of the ififientioned in
schedule ‘A’ plaintiffs in
respect _–‘uai}{:ic1es mexltioned “B”
schedule _ which were kept in
the prtgnises of taking possession of the
V . “ICV-._v «tha Board.
1.31;/A..
._ V-fibnsidexed View it is net a fit cm for
V V. eur inicxfgraiztné in this Appeal. Therefore, the sme is
“.r.V._:’:.-“”‘iia’,blg ta dismissed and acormiingly the appeal is
Sd/-
‘E393
JUDGE
NG*