Full Judgment Text
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CASE NO.:
Appeal (civil) 2753-2754 of 1998
PETITIONER:
HUBLI DHARWAR MUNICIPAL CORPORATION AND ANOTHER
Vs.
RESPONDENT:
H.S.MOHD.KHAN (DEAD) BY LRS. & ORS.
DATE OF JUDGMENT: 14/12/2001
BENCH:
D.P. Mohapatra & P. Venkatarama Reddi
JUDGMENT:
D.P.Mohapatra, J.
The core of the dispute raised in these appeals relates
to specific performance of the agreement dated 10.1.1968
for sale of land, entered into between the Hasankhan Shye
Mohammed Khan (dead represented by Lrs.) (hereinafter
referred to as ’the owner’) and the Hubli Dharwar Municipal
Corporation (hereinafter referred to as ’the Municipal
Corporation’). Both the parties filed suits; the Municipal
Corporation filed the suit for specific performance of the
agreement of sale and the owner filed the suit for declaration
of title to the property and for injunction. The trial Court
dismissed both the suits.
Both the parties filed appeals before the district court.
The first appellate court reversed the judgment of the trial
Court dismissing the suit filed by the Municipal Corporation
and decreed the said suit, and confirmed the judgment of the
trial Court dismissing the suit filed by the owner.
The owner of the property filed two Second Appeals,
RSA No.642/97 and RSA No.650/97 challenging the
judgment and decrees passed by the first appellate Court.
Both the Second Appeals were decided by the common
judgment dated 11.12.1997 in which the appeals were
allowed and the judgment/decree passed by the first
appellate Court were reversed. Consequentially the suit filed
by the Municipal Corporation for specific performance of the
agreement of sale was dismissed and the suit filed by the
owner of the property seeking declaration of the title and
injunction was decreed. Further, on the prayer of the owner
for amendment of the plaint to add the relief of recovery of
possession of the property in dispute the High Court decreed
the suit including the prayer for recovery of possession.
Feeling aggrieved by the judgment of the High Court the
Municipal Corporation filed these appeals assailing the
same.
The main thrust of arguments of the learned counsel
appearing for the appellants was that the Second Appeals
were allowed by the High Court when they were listed in the
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court for admission; that no substantial question of law was
formulated by the learned Judge and furthermore the petition
for amendment of the plaint which was filed by the owner on
5.12.1997 was allowed and the judgment disposing of the
appeals was rendered on 11.12.1997 without giving
adequate opportunity to the Municipal Corporation to file
objections.
In order to be satisfied about correctness of the
contentions raised by learned counsel for the appellants we
perused the order sheets in the Second Appeals. We find
that the contentions raised by the learned counsel have
substance. Indeed, the appeals were decided on the day
they were listed for admission without framing any
substantial question of law. Further, on the petition filed by
the owner on 5.12.1997 for amendment of the plaint no
opportunity was granted to the Municipal Corporation to file
its objection, and no separate order allowing the amendment
petition was passed by the Court. The said petition was
allowed in the judgment in which the appeals filed by the
owner were allowed and the suit filed by him was decreed
for the reliefs claimed in the plaint including the relief of
recovery of possession of the property.
On the facts and in the circumstances of the case, we
are of the view that the manner of disposal of the Second
Appeals was contrary to the procedure prescribed under
Section 100 of the Code of Civil Procedure. The High Court
was clearly in error in allowing the Second Appeals.
Therefore, the judgment of the High Court is unsustainable
and is liable to be set aside.
Accordingly, the appeals are allowed, the
judgment/decree dated 11.12.1997 of the High Court in RSA
No.650/97 and RSA No.642/97 are set aside and the
matters are remitted to the High Court for fresh disposal of
the Second Appeals in accordance with law. The High Court
should now proceed to take up the second appeal for
admission, frame the substantial questions of law and hear
the appeal at an early date. The question, whether the
amendment application shall be allowed, should be decided
by the High Court either before or in the course of hearing
the appeal and, consequentially, if any substantial question
of law arises therefrom it has to be decided by the High
Court. In the circumstances of the case, there shall be no
order as to costs.
...................................J.
(D.P. Mohapatra)
...................................J.
(P.Venkatarama Reddi)
December 14, 2001