IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO.50812 OF 2016 (GM-CPC) BETWEEN:
NARAYANA BHAT S/O LATE SUBBANNA BHAT AGED ABOUT 70 YEARS R/AT NO.439, “SRINKARA” 4TH MAIN, 14TH BLOCK NAGARBHAVI 2ND STAGE BENGALURU – 560 072 ... PETITIONER (BY SRI.S.V.PRAKASH, ADVOCATE) AND:
1. AMAN ULLA S/O GAFFAR SAB AGED ABOUT 47 YEARS 2. SMT.PAMIDA W/O MEBOOB SAB AGED ABOUT 41 YEARS 3. MUNEER PASHA S/O NAZIR SAB AGED ABOUT 41 YEARS RESPONDENTS 1 TO 3 ARE RESIDENTS OF SITE NO.6 SY.NO.332/A, WARD NO.15 LEFT SIDE OF OLD CAMBRIDGE SCHOOL BUILDING MATHUR MAIN ROAD URGADUR VILLAGE SHIMOGGA TALUK AND DISTRICT – 577 401 ...RESPONDENTS (BY SRI.M.H.I.SINDHAGI, ADVOCATE - ABSENT) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 11.7.2016 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM SHIMOGA ON I.A.NO.III IN R.A.NO.21/2015 VIDE ANNEXURE-H TO THE WRIT PETITION, ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff has filed the present writ petition against the order dated 11.7.2016 passed on I.A.No.3 made in R.A.No.21/2014, dismissing the application filed by the plaintiff, who is the respondent before the Lower Appellate Court, under Order 41 Rule 3 read with Section 151 of the Code of Civil Procedure.
2. The present petitioner, who is the plaintiff in O.S.No.588/2011, filed the suit against the defendants for a declaration that the plaintiff is the absolute owner of the suit schedule property and also to direct the defendants to quit and deliver the vacant possession of the suit schedule property, contending that the plaintiff was the absolute owner of the suit property and katha of the suit property is changed in his name and he is paying taxes regularly. The defendants having no manner of right, title or interest over the suit property by taking undue advantage of the absence of the plaintiff, have trespassed into the suit property and put up sheds. The construction made by the defendants is illegal and they have no right to continue in possession of the suit schedule property. After contest, the Trial Court decreed the suit by the judgment and decree dated 10.12.2013, declaring that the plaintiff is the absolute owner of the suit schedule property and directed the defendants to quit and deliver the vacant possession of the suit schedule property to the plaintiff within 60 days from the date of the judgment and also reserved liberty to the plaintiff to take possession of the suit schedule property through the process of Court, if the defendants fail to quit and deliver the vacant possession of the suit property.
3. Being aggrieved by the said judgment and decree, the defendants filed R.A.No.21/2014 before the Senior Civil Judge, Shivamogga. During the pendency of the said proceedings, the defendants/appellants filed an application under Section 151 of the Code of Civil Procedure read with the provisions of the Legal Services Authorities Act, requesting the Court to order for legal aid to them and permit them to file the appeal without payment of the prescribed court fee, contending that the Trial Court had decreed the suit directing to quit and deliver the vacant possession to the plaintiff. The defendants are BPL card holders and their annual income is less than `18,000/- and that the defendant No.2 is a woman and they do not have capacity to pay the court fee. Therefore, requested the Court to permit the defendants to file appeal without paying the court fee. The said application was resisted by the present petitioner – plaintiff. In the meanwhile, the plaintiff, who is the respondent before the Lower Appellate Court, also filed an application under Order 41 Rule 3 read with Section 151 of the Code of Civil Procedure, to reject the memorandum of appeal for non payment of prescribed court fee. The Trial Court after considering the application filed by the plaintiff, dismissed the application mainly on the ground that the District Legal Services Authority has to take a decision as to whether legal aid can be provided to the defendants or not. Until a decision is taken by the District Legal Services Authority, it cannot be said that the appeal is not maintainable in law. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the petitioner.
The learned counsel for the respondents remained absent.
5. Sri.S.V.Prakash, the learned counsel for the petitioner/plaintiff contended that the impugned order passed by the Lower Appellate Court dismissing the application filed by the plaintiff is not a speaking order and totally without application of mind. He further contended that in terms of the provisions of Order 41 Rule 3, it is the duty of the defendants/appellants in the regular appeal to pay the court fee along with the memorandum of appeal. If the court fee is not paid, the appeal has to be rejected. He also contended that the Lower Appellate Court dismissed the application mainly on the ground that the application filed by the defendants/appellants, the matter was referred to the District Legal Services Authority and the report has not been received. The appeal was filed in 2014. Even after a lapse of 3 years, the Lower Appellate Court has not got the report. The appeal cannot stand still without proceeding further. Therefore, he sought to quash the impugned order passed by the Lower Appellate Court by allowing the present writ petition.
6. Having heard the learned counsel for the petitioner and on perusal the available material on record carefully, it is clearly depict that the present petitioner, who is the plaintiff before the Trial Court, filed the suit for declaration and a direction to the defendants to quit and deliver the vacant possession. After contest, the suit came to be decreed on 10.12.2013, directing the defendants to quit and deliver the vacant possession to the present petitioner/ plaintiff within a period of 60 days from the date of the judgment. It is also not in dispute that aggrieved by the said judgment and decree, the defendants filed R.A.No.21/2014. During the pendency of the appeal, they also filed an application under Section 151 of the CPC read with the provisions of the Legal Services Authorities Act, to permit the defendants/appellants to proceed with the appeal without paying the prescribed court fee as they are BPL Card holders and their annual income is less than `18,000/- and they are entitled for waiver of the court fee before the Lower Appellate Court. The present petitioner, who is the respondent before the Lower Appellate Court, filed an application under Section 151 of the CPC, seeking to dismiss the appeal for non-payment of court fee. It is the duty of the Lower Appellate Court to get the report from the District Legal Services Authority at the earliest and the appeal cannot be postponed for an indefinite period.
7. The order sheet produced at Annexure-H shows that the appeal was filed on 12.2.2015 (according to the learned counsel for the petitioner, the appeal was filed on 6.2.2014). We are in the end of December, 2017. Till today, the learned Judge has not proceeded with the appeal on the ground that he has not received the report from the District Legal Services Authority. It is the duty of the concerned learned Judge to get the report at the earliest and decide whether the appellants can be exempted from paying the court fee and he cannot postpone the matter indefinitely. The dismissal of the application without such report is also not in accordance with law. When the learned Judge is not in a position to get the report at the earliest, the application should have been kept in abeyance till the report is received. Therefore, dismissal of the application is bad and contrary to the material on record.
8. For the reasons stated above, the writ petition is allowed. The learned Principal Senior Civil Judge and CJM, Shivamogga, is directed to get the report from the District Legal Services Authority, within a period of three months and thereafter take a decision on the application filed by the present petitioner/plaintiff and the appellants before the Lower Appellate Court and proceed in accordance with law.
Sd/- JUDGE AHB