IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.237 of 2012 (RES) BETWEEN 1. SMT. BORAMMA, W/O. LATE RAMEGOWDA, AGED ABOUT 66 YEARS, 2. RAJASHEKAR, SON OF SMT. BORAMMA, AGED ABOUT 46 YEARS, BOTH ARE RESIDING AT MANCHEGOWDANA KOPPALU, HEBBAL, MYSORE – 570 025 (BY SRI S. BHYRAPPA, ADVOCATE) AND B.V. KRISHNAIAH, S/O SHANBHOGU VENKATARAMAIAH, R/AT No.129-L 27, SHIVAJI ROAD, 1ST STAGE, KESARE, N.R. MOHALLA, MYSORE – 570 007.
(BY SRI R.V. JAYAPRAKASH, ADVOCATE) ...APPELLANTS … RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 21.01.2008 PASSED IN R.A.No.147 of 2004 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-III, MYSORE, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 03.10.1996 PASSED IN O.S.No.911 of 1994 ON THE FILE OF II ADDITIONAL I MUNSIFF, MYSORE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is filed by the appellants-plaintiffs being aggrieved by the judgment passed by the Presiding Officer, Fast Track Court-III, Mysore, in RA No.147 of 2004 (Old No.335/1996), dated 21.01.2008 (hereinafter referred to as ‘First Appellate Court’) for having confirmed the decree of dismissal of suit of the plaintiffs/appellants in O.S.No.911/1994 (hereinafter referred as ‘Trial Court’).
2. Heard the argument of learned counsel for the appellants as well as learned counsel for the respondent.
3. The status of the parties before the Trial court is retained for the sake of convenience.
4. The case of the plaintiffs before the Trial Court is that the plaintiffs filed a suit for recovery of Rs.26,800/- from the defendant alleging that the plaintiffs sold a property to the defendant under Sale Deed dated 17.07.1992 for a sum of Rs.1,86,000/-. The suit property was mortgaged to one H.P.Veeraraja Urs and plaintiffs got the property redeemed before the sale deed was executed. However, the mortgagee delivered possession of the main building and promised to vacate the out-house after he obtains a suitable house on lease. As such, delivery of possession pertaining to the main building was made in favour of the defendant and but not the out-house. Therefore, the defendant retained a sum of Rs.25,000/- out of the sale consideration and paid Rs.1,61,800/-, agreed to pay Rs.25,000/- after the plaintiffs get the mortgagee vacate the out-house and handover possession of it to the defendant. In the meanwhile, the mortgagee filed suit against the plaintiffs in OS No.587/1992 on the file of the I Munsiff, Mysore for the relief of permanent injunction on the ground that he was the tenant and obtained temporary injunction. During the pendency of the suit, the defendant got issued legal notice to the said Veeraraje Urs for payment of rent. The said Veeraraje Urs accepted the defendant as his Landlord and has been paying the rentals to him and it became difficult for the plaintiffs to get possession of the out-house from the mortgagee. Further, the defendant has already obtained constructive possession of the out-house and the plaintiffs not obtained possession of the out-house. The defendant is liable to pay Rs.25,000/- to the plaintiffs. Hence, the suit was filed.
5. Pursuant to the notice, the defendant filed written statement denying the entire averments as false and contended that the entire sale consideration is paid and there is no balance sale consideration and the property has already been delivered to him on the date of registration of the sale deed and prayed for dismissal of the suit 6. Based upon the rival pleadings, the Trial Court framed the following issues:
“1. Whether plaintiffs prove that defendant retained a sum of Rs.25,000/- out of sale consideration, as the out house was not handed over to him, because one mortgagee H.B.Veeraraje Urs was in occupation of the same?
2. Whether defendant proves that Sri.Veeraraje Urs was tenant of out house of suit schedule property prior to sale in his favour?
3. Whether plaintiffs entitled to interest at the rate of 18% p.a. on Rs.25,000/- as damages?
4. Whether plaintiffs entitled to relief claimed?
5. What order or decree?”
7. In support of the case, plaintiff No.1 got herself examined as PW.1 apart from examining two more witnesses as PWs.2 and 3 and got marked six documents as per Exs.P.1 to P.6. On behalf of the defendant, no witness was examined, but the documents Ex.D.1 to Ex.D.3 came to be marked.
8. After considering the evidence on record, the Trial Court answered issue Nos.1, 3 and 4 in the negative and issue No.2 in the affirmative and consequently dismissed the suit. Assailing the same, the plaintiffs filed an appeal before the First Appellate Court in RA No.147/2004 and the First Appellate Court after hearing the arguments dismissed the appeal filed by the plaintiffs. Assailing the same, the plaintiffs filed the second appeal before this Court in RSA No.1327/2008. Subsequently, the defendant raised objection regarding filing of the second appeal as the subject matter of the suit was Rs.25,000/-. Therefore, as per Section 102 of CPC, the second appeal is not maintainable. This Court dismissed the second appeal by judgment dated 15.03.2010 in terms of Section 102 of CPC as the decretal amount does not exceed Rs.25,000/-. Thereafter, the appellant filed Civil Revision Petition No.122/2010 and during the course of pendency of the Civil Revision Petition, the appellant also filed I.A.No.2/2011, which was numbered as Misc.Cvl.No.16531/2011 wherein this Court rejected I.A.No.2/2011 for recalling the judgment dated 15.03.2010. This Court after hearing the arguments of learned counsel for the appellants, vide order dated 09.12.2011 has held that the claim of the plaintiffs for recovery of money before the Trial Court is for a sum of Rs.26,800/-. Therefore, the revision will not be competent and remedy would be in appeal. Thereafter, the Civil Revision Petition No.122/2010 was converted into RSA No.237/2012 and the matter came up before this Court for admission.
9. At this stage, learned counsel for the respondent contended that this Court while passing orders on I.A.No.2/2011 in RSA No.1327/2008 has categorically stated at page 2 of the order that ‘judgment of this bench is in accordance with the tenor and object of Section 102 of CPC, there is no warrant for reviewing the judgment passed earlier, and the present applications do not merit consideration. Further, it is also observed that there is no substantial question of law involved.’ Learned counsel further submits that this Court had already held that there is no substantial question of law involved in this appeal. Such being the case, the second time appeal cannot be considered.
10. Per contra, learned counsel for the appellants contended that though the appellants filed I.A.No.2/2011 for recalling the order of dismissal of the appeal on the ground of jurisdiction, but this Court has passed an order that there is no substantial question of law involved and there is no such prayer in this application. Therefore, this appeal is not maintainable.
11. On perusal of the record, admittedly, the revision petition filed by the petitioner in CRP No.122/2010 was pending as on 15.11.2011. During the pendency of the revision petition, the appellants filed I.A.No.2/2011 in RSA No.1327/2008 for recalling the order passed in revision on the ground of jurisdiction. Of course, this Court held considering the jurisdiction that the claim was only Rs.25,000/- before the Trial Court and as per Section 102 of CPC, the second appeal will not lie before this Court. While dismissing I.A. No.2/2011, this Court held that there is no substantial question of law involved in the appeal. On perusal of the very order of this Court, no doubt this Court dismissed I.A.No.2/2011 for recalling the dismissal order of the appeal on the ground on jurisdiction but this Court held that there is no substantial question of law involved, which goes to show that the said RSA No.1327/2008 was not at all admitted by this Court. This appellant while filing civil revision petition has stated that RSA No.1327/2008 was admitted, but the order dated 15.11.2011 is extracted for ready reference “ORDER ON I.A.NO.2/2011 AND MISC.CVL.16531/2011 The present I.A.2/2011 is filed seeking condonation of delay of 457 days in filing Misc.Cvl.16531/2011, the reason assigned is that the appeal filed by the present appellants having been dismissed on the ground that the appeal was in respect of a suit, the subject matter of which was `.25,000/-, and therefore, in terms of Section 102 of the Code of Civil Procedure, 1908, the second appeal was held to be not maintainable. That finding having been questioned in a revision petition before this Court, according to the petitioner, this Court in the revision petition, has expressed that the circumstance may warrant recalling of the judgment in view of the suit claim being in excess of `.25,000/-. It is in that background that the appellants have filed the present applications.
Since this Bench has taken a view that the subject matter of the suit was only `.25,000/-, both the trial Court and the first appellate court have addressed the suit claim of `.25,000/- only, and have dismissed the suit. The judgment of this bench is in accordance with the tenor and object of Section 102 of the Code of Civil Procedure, there is no warrant for reviewing the judgment passed earlier, the present applications do not merit consideration. Further, there is no substantial question of law involved.
Hence, the question of considering the application for condonation of delay which in any event does not assign any reason whatsoever, is rejected.
Accordingly, the application to recall the judgment dated 15.03.2010 is rejected.”
12. Admittedly, the appellants have preferred regular second appeal before this Court in RSA No.1327/2008, it was found at the time of hearing that the regular second appeal is not maintainable in view of Bar under Section 102 of CPC as the claim is only for Rs.25,000/-. In view of the same, the appeal was dismissed granting leave to the petitioners to seek suitable remedy. The very ground mentioned by the appellants that RSA No.1327/2008 has been admitted by this Court is not correct. The original record in RSA has been brought from the office and verified and the said appeal was not at all admitted and this Court dismissed the appeal on the ground of maintainability by granting liberty but while filing this application for recalling the order dated 15.03.2010, this Court has categorically held that there is no substantial question of law involved. Such being the case, when this Court has held that there is no substantial question of law involved and dismissed the application which amounts to confirming the judgment of this Court below and has held that no substantial question of law is involved.
13. Learned counsel for the appellants even not chosen to file any application for recalling the order dated 15.03.2010. The order passed by this Court dismissing the appeal even on the ground of merit, there is no substantial question of law is involved. Therefore, this Court again cannot go into merits of the case as this Court has already has expressed the view that no substantial question of law is involved. Such being the case, there is no reason for this Court for taking any other opinion as this Court has dismissed the interim application along with the appeal. Therefore, this appeal deserves to be dismissed on the ground that nothing survives for consideration.
Accordingly, the second appeal is dismissed.
Sd/- JUDGE mv