IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO REGULAR SECOND APPEAL NO.846/2012 BETWEEN:
1. The Divisional Controller KSRTC Mysore Division Bannimantap, Mysore 2. D.T.O., KSRTC Bannimantap, Mysore 3. D.T.O. Mysore Sub Division Suburb Bus Stand, KSRTC Bannimantap, Mysore 4. The Assistant Security Inspector KSRTC, Bannimantap Mysore 5. The Labour Officer Bannimantap, Mysore 6. The Chairman & Managing Director KSRTC, Central Office Shanthinagar Kengal Hanumanthaiah Road Bangalore All are represented by its Chief Law Officer KSRTC, Central Office, Bangalore. ... Appellants (By Sri. P.D. Surana, Adv.) AND:
Smt. Gayathri W/o. M.K. Henjarappa Aged about 55 years K.H.B. Colony, RMP Quarters J.B. Koppalu, Mysore ... RESPONDENT (Respondent served) This appeal is filed under Section 100 of CPC against the judgment and decree dated 26.10.2011 passed in R.A. No.58/2011 on the file of VI Additional District Judge at Mysore, partly allowing the appeal and modifying the judgment and decree dated 28.8.2009 passed in O.S. No.513/1998 on the file of the II Additional Civil Judge (Sr. Dn.), Mysore.
This appeal coming on for Hearing this day, the Court delivered the following:
JUDGMENT This appeal is directed against the judgment and decree dated 26.10.2011 passed by the VI Additional District Judge, Mysore, in R.A.No.58/2011 wherein the appeal filed by the Divisional Controller, KSRTC Mysore Division and five others came to be allowed in part by modifying the judgment and decree of the Trial Court, passed in OS No.513/1998 On 28.8.2009.
2. For the purpose of convenience, the parties are referred in accordance with their respective ranks before the trial Court.
3. The brief facts of the case are that the plaintiff-Smt.Gayathri, who is said to be physically handicapped lady filed the suit for recovery of damages of Rs.1,29,000/- with interest at 21% per annum claiming that she was given permission to install Telephone Booth in the suit schedule property in the year 1991 i.e., at KSRTC, Suburb Bus Stand, Lashkar Mohalla, Mysore. She had invested huge amount and improved the premises and was smoothly carrying on the business as per the agreement, which was being renewed every year.
4. The first defendant failed to renew the said Agreement for the year 1998-99, though the plaintiff had submitted an application for renewal of agreement on 03.06.1998. She had also claimed that the first defendant on 11.06.1997 had renewed the said agreement for one year and again renewed the same on 11.6.1998.
5. The first defendant had issued show cause notice to the plaintiff on 26.5.1998 and the same has been replied by the plaintiff on 1.6.1998 that she is in lawful possession of the suit schedule property. Though the plaintiff claimed renewal, no renewal of license being effected. However, plaintiff’s invariable plea was that she was in absolute possession of the suit schedule property. It is further claimed that 10.06.1998 all of a sudden at 9.30 a.m. the first defendant interfered with peaceful possession and enjoyment of the suit property comprising of 4 x 4 ft. She claims that defendants-2 to 5 illegally trespassed and threatened the plaintiff to dispossess her from the suit schedule property. She was compelled to file a complaint before the Lashkar Police Station in NCR No.38/98. However, filing of complaint was of no avail to the plaintiff. Hence, she was constrained to file a suit in O.S.No.457/98 before the Principal Civil Judge (Jr.Dn), Mysore, for permanent and mandatory injunction and other reliefs on 10.06.1998. In the said suit, three applications filed by the plaintiff were allowed on 25.07.1998 ordering to re-erect the Telephone Booth to its original position. By virtue of orders of the Court, she started her business from 05.08.1998, and therefore, the plaintiff claimed that the first defendant is liable to compensate the damages caused to her from 10.6.1998 to 4.8.1998. It is further contended that the plaintiff was getting an income of Rs.7,000/- p.m. approximately from the STD credit and another sum of Rs.3,000/- from local calls and Rs.10,000/- p.m. towards service charges. In all, the plaintiff was earning monthly income of Rs.20,000/. She had also claimed that she improved the property by spending a sum of Rs.37,600/- towards sign boards and for reconnecting electricity supply, telephone supply etc. and a sum of Rs.800/- towards transport of telephones from the suit schedule property to her residence and that she sustained loss of Rs.40,000/-. The plaintiff filed a suit for recovery of loss from defendants-1 to 5 to a tune of Rs.1,29,000/-.
6. The defendants deny the averments of the plaintiff. They claim that the plaintiff was issued license to run the Telephone Booth as she was the highest bidder wherein she was not given rights of absolute possession or any other rights to continue for possession beyond the permitted duration. The sum and substance of the claim or grounds urged by the defendants is that in the beginning the plaintiff was permitted to install the Telephone Booth, but license came to be expired on 09.06.1998. The license of the plaintiff also was revoked by notice dated 26.05.1998 and the same was served on the plaintiff, which was replied by her. On termination of license, the plaintiff was required to remove the structure built by her. Thereafter, the Telephone Booth was removed by the licensor as per the procedure.
7. Being aggrieved, the plaintiff filed a suit in O.S.No.457/1998 seeking permanent injunction and mandatory injunction, which was dismissed but the appeal filed by her in RA No.90/2004 was allowed and relief was granted. The defendants filed RSA No.1000/2007 before this Court and the same was disposed of on 10.11.2008. The operative portion of the judgment reads as follows:
“The appeal is allowed. Judgment of the lower appellate Court is set aside and that of the trial court is restored. The respondent is granted time till the end of 31st December 2008 to hand over vacant possession of the suit property to the appellant and also to file an affidavit to the said effect within two weeks from the date of receipt of this order and shall not drive the appellant to further proceedings in this regard.”
However, vacant possession of the suit property was not handed over to the appellant-Divisional Controller, KSRTC, Mysore-defendant No.1 by the respondent- Smt.Gayathri.
8. During the pendency of the said suit, plaintiff chose to file another O.S.No.513/1998 in respect of similar relief of damages to the tune of Rs.1,29,000/-. The Court below decreed the suit by directing the defendants-1 to 5 to pay damages of Rs.78,400/- to the plaintiff.
9. The trial Court ordered defendants-1 to 5 to pay a sum of Rs.78,400/- with current and future interest at 8% p.a. Being aggrieved by the order, the defendants-1 to 5 filed appeal in R.A.No.58/2011 wherein the Appellate Court partly allowed the appeal modifying the Trial Court order by reducing the compensation to a sum of Rs.38,400/- from Rs.78,400/-. Being aggrieved, the defendants have preferred this appeal.
10. This appeal was admitted by this Court on 05.04.2019 to consider the following substantial questions of law:
a) Whether the licensee can claim rights of possession after period of license is over?
b) Whether, when right of licensee is adjudicated regarding right to continue, can subsequent proceedings be initiated by the licensee in respect of the subject?
c) Whether the suit is barred under Order 2 Rule 2 of CPC?
d) Whether the licensee was entitled for damages and in this connection, the trial Court was right and the appellate Court was further right in partly affirming the same?
11. Though plaintiff was served with notice, she has remained absent and unrepresented.
12. Sri P.D.Surana, learned counsel for the appellants submits that at the first instance the respondent had no cause of action to file O.S.No.513/1998 when earlier suit O.S.No.457/1998 had attained finality. He further submits that Order II Rule 2 of CPC is clear and there is virtual bar on the plaintiff to file O.S.No.513/1998.
Here it is necessary to mention Order II Rule 2 of CPC which reads as under:
“Order II – Frame of suit 2. Suit to include the whole claim (1) (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.”
13. Learned counsel has furnished copies of the document Exs.P23 and 24. On reading of the contents therein in Kannada it is understood that the receipts were issued by one Mahendra Aluminium regarding incurring of expenditure of Rs.37,600/-. Further, he contends that the plaintiff-licensee has no right to continue occupation in the schedule property when earlier suit is pending, the plaintiff had no right to initiate another proceedings.
14. In order to claim damages, firstly, it was incumbent on the part of the plaintiff to prove her legal right to occupy the suit schedule property under proper permission issued by the competent authority which is in force. Secondly, it is necessary to mention that the earlier suit was finally disposed of by this Court in RSA No.1000/2007 wherein this Court allowed the appeal filed by the appellant-KSRTC granting time to the respondent-Smt. Gayathri to hand over the vacant possession of the suit property to the appellant by 31.12.2008. O.S.No.513/1998 was filed during 1998 when the earlier suit O.S.No.457/1998 was pending.
15. The right of the plaintiff was substantially determined. However, in respect of claiming damages, the plaintiff failed to adjudicate the same in the earlier proceedings but chose to file new proceedings more particularly O.S.No.513/1998 during the pendency of O.S.No.457/1998.
16. The claim of the plaintiff is clearly barred by Order II Rule 2 CPC. The conduct of the plaintiff in asserting her rights is not proper. It means that she squatted over the property after permitted duration was over and the amount claimed from the defendants with regard to installation of sign boards, connection of electricity etc., are not said to be the nature of necessities.
17. She never took permission from the defendants for doing such act. The licensee in possession is not even entitled to make improvements without the permission or consent by the licensor. The amount claimed by the plaintiff are different and not reflected in the documents.
18. The appellants have succeeded in proving that the judgment and decree passed by both the Trial Court and the First Appellate Court are erroneous and liable to be set aside. The substantial questions framed are answered accordingly. Consequently, the appeal deserves to be allowed. Hence, I proceed to pass the following:
ORDER The appeal is allowed. The judgment and decree passed in R.A.No.58/2011 dated 26.10.2011 by the VI Additional District Judge, Mysore and the judgment and decree passed in O.S.No.513/1998 dated 28.09.2009 by II Additional Civil Judge (Sr.Dn), Mysore are set aside. Consequently, the suit filed by the plaintiff is dismissed.
Sd/- JUDGE TL