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Shama Rao Hanumantharao Kulkarni and ors. Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 1023 of 1974
Judge
Reported inAIR1981Kant135; ILR1981KAR780; 1981(1)KarLJ193
ActsCode of Civil Procedure (CPC), 1908 - Sections 80; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantShama Rao Hanumantharao Kulkarni and ors.
RespondentState of Karnataka and ors.
Appellant AdvocateR.V. Kulkarni, Adv.
Respondent AdvocateC.S. Kothavale, Addl. Govt. Adv. and ;R.A. Chandan Gowdar, Adv.
Excerpt:
.....of the irrigation act? 28. sri kulkarni has not placed before me any ruling of the supreme court or any other high court or has not advanced any substantial ground to unsettle the law that has held the field for well over 50 years. from this it follows that the suit filed by the plaintiffs, some of whom had not issued notice, was clearly not maintainable and the same has been rightly dismissed by the courts below and there are no grounds to interfere with their judgments and decrees......constructing the new sluice for the tank. lastly, they alleged that they had issued necessary suit notice under section 80 of the code of civil procedure on the deputy commissioner, dharwar on 3-6-1966.5. in resisting the plaintiffs' suit, defendant no. 1 pleaded that the new sluice had been constructed as early as in march 1966, on being satisfied of its imperative necessity to supply water to all the land holders of the command area. defendant no. 1 alleged that the existing two outlets were not effectively irrigation all the lands, there was loss of water and the, construction of a new sluice was necessary for the preservation of the tank. defendant no. 1 asserted that the contract of construction of new sluice had been awarded to defendant no. 2, who had constructed the same in.....
Judgment:

1. This appeal is by 17 plaintiffs out of the original 67 Plaintiffs and is directed against the judgment and decree dated 8-10-1973 of the Civil Judge, Haveri in R. A. No. 72 of 1971 affirming the judgment and decree dated 14-8-1968 of the Munsiff Haveri in L. C. suit No. 12 of 1967.

2. At Bommanahalli village of Hanagal Taluk, Dharwar District, there is a Government irrigation tank bearing R. S. No. 176. In the earlier revenue records, the tank had been given R. S. No. 97 of Needsangi village, which is now a becharak or an abandoned village. Ever since the said tank was constructed or at any rate till about 1966 or so there were two sluices or outlets regulating the supply of water to the command area or 'achakat' of the said tank. On an examination of the requirements of the land holders of the command area, in March, 1966, according to defendant No. 1, but some time in March, 1967 according to the plaintiffs, defendant No. 1 has constructed one more sluice or out-let to the said tank.

3. Before the new sluice could be opened, as many as 67 persons, claiming themselves to be the owners or tenants of the lands situated in the command area of the tank, instituted L. C. suit No. 12 of 1967 on 19-1-1967 in the Court of the Munsiff, Haveri against the State of Karnataka arrayed as defendant No. 1 and four other i3ersons for a declaration, U) that they were entitled to draw water from the Previous two sluices of the tank; (ii) that the construction of the new sluice was without the authority of law and illegal; (iii) for a permanent injunction to close down the new sluice; (iv) for a permanent injunction to regulate the supply of water only from the previous two sluices as before without under taking any kind of work, interfering with the flow of water from the said two sluices and, (v) for damages that they would suffer Pending determination of their suit.

4. In order to sustain the aforesaid novel and extremely doubtful reliefs, the plaintiffs alleged that they had acquired an absolute and indefeasible right to draw water from the two sluices of the tank from time immemorial. On this basis, the plaintiffs urged that defendant No. 1 cannot construct a new sluice at the instigation of defendants 2 to 5 to interfere with their rights. They alleged that they had earlier approached the officers of the Public Works Department and Revenue Department for redressal of their grievance but. those officers had turned their deaf ears. The Plaintiffs alleged that the cause of action for the suit arose in the month of March, 1966, when defendant No. 1 started constructing the new sluice for the tank. Lastly, they alleged that they had issued necessary suit notice under Section 80 of the Code of Civil Procedure on the Deputy Commissioner, Dharwar on 3-6-1966.

5. In resisting the plaintiffs' suit, defendant No. 1 pleaded that the new sluice had been constructed as early as in March 1966, on being satisfied of its imperative necessity to supply water to all the land holders of the command area. Defendant No. 1 alleged that the existing two outlets were not effectively irrigation all the lands, there was loss of water and the, construction of a new sluice was necessary for the preservation of the tank. Defendant No. 1 asserted that the contract of construction of new sluice had been awarded to defendant No. 2, who had constructed the same in accordance with the terms and conditions of the contract and the technical requirements stipulated thereto by its technical experts.

6. Defendant No. 1 urged that the suit filed by the plaintiffs was not maintainable under Section 63 of the Karnataka Land Revenue Act of 1964 (herein after referred to as the L. R. Art) and Section 69 of the Karanataka Irrigation Act of 1965 (hereinafter referred to as the Irrigation Act). Secondly, it urged that the suit had not been instituted by the plaintiffs within six months from the date of the act complained of and the same was barred by time. Lastly, it urged that the suit notice under Section 80 of the Code had not been issued by all the plaintiffs and the suit filed by those that had not issued such notices and, those that had issued notice was not maintainable.

7. Defendants 2 and 5 filed a common written statement supporting defendant No 1.

8. On the above pleadings the learned Munsiff framed as many as 13 issues. Issues 1 to 3 which were treated as preliminary issues, on the consideration of which alone the suit has been dismissed read thus :

(1) Whether the suit is 'maintainable under Section 63 of the Mysore Land Revenue Act ?

(2) Is the suit tenable under Section 69 of the Mysore Irrigation Act. 1965 ?

(3) Is the notice under Section 80 of the Code valid ?

9. Before considering issues 1 to 3 one Sri M. H. Patil, an advocate of the Court was appointed as a Commissioner to inspect the tank and report the actual state of affairs of the tank.

10. Sri Patil in his report dated 17-6-1968, stated that the new sluice had been constructed.' He also furnished certain other details that are ' not material for 'a decision on issues 1 to 3.

11. On 12th and 13th August, 1968, the learned Munsiff heard argument on Issues 1 to 3 and by his judgment dated 14-8-1968 answered issues 1 to 3 against the plaintiffs and dismissed the suit. Against the said judgment and decree of the learned Munsiff, as many as 42 Plaintiffs filed an appeal in R. A. No. 130 of 1968 before the Civil Judge, Hubli which was then exercising jurisdiction over the area. On an application made, appellants 5, 8, 10, 11, 13, 18, 21. 22, 25, 30, 31, 35, 39 and 40 in the said appeal were transposed as respondents 11 to 24 to that appeal. On the establishment of a new. Civil Judge's Court at Haveri, the said appeal was transferred -to that Court where it was numbered as R. A. No. 72 of 1971. On 8-10-1973 the learned civil Judge has dismissed the said appeal and has affirmed the judgment and decree of the learned Munsiff disagreeing with the findings recorded by him on issues 1 and 2 but agreeing with his finding on issue No. 3. On 18-1-1974 only 17 plaintiffs have filed this appeal before this Court.

12. Sri R. V. Kulkarni, learned counsel for the appellants, has contended that the finding recorded by the Courts below on issue No. 3, at any rate, in respect of those persons that had issued a notice under Section 80 of the Code is erroneous in law and it is, therefore, necessary to set aside the judgment and decrees of the Courts below and remit the suit to the trial Court for recording evidence on the other issues and their determination,

13. Sri C S. Kothavale learned High Court Government Pleader appearing for the respondent No. 1 while - supporting the finding of the Courts below on issue No. 3 urged that the findings of the learned Civil Judge on Issues 1 and 2 are erroneous in law and reversing the findings of the learned Civil Judge on the said issues also, the decrees of the Courts require to be affirmed by this Court.

14. On an examination of the pleadings and the contention urged, the points that arise for determination ill this appeal are:

(1) Whether the suit filed by the plaintiffs, some of whom that had not issued a notice and others that had issued such a notice under Section 80 of the Code was maintainable or not ?

(2) Whether the plaintiffs' suit is barred under Section 63 of the L. R. Act or under Section 69(5) of the Irrigation Act ?

(3) Whether the Plaintiffs' suit is instituted within six months from the date of the Act complained of and if not is it barred by time under Section 69(3) of the Irrigation Act ?

15. Before examining points formulated, it is necessary to notice that issues 2 and 3 framed by the learned Munsiff are not in conformity with Order 14 of the Code. On that ground I do not Propose to remit the case to any one of the Courts and exercising the powers conferred on this Court by Order 41, Rule 24 of the Code,

I Propose to re-settle and determine them finally, if that is possible.

16. Issue No. 1 has been correctly framed and the same does not call for resettlement.

17. Issue No. 2 besides being vague does not correctly represent the Pleas urged by defendant No. 1 in its defence. Firstly defendant No. 1 has urged that the suit filed by the Plaintiff was barred by sub-section (5) of Sec tion 69 of the Irrigation Act. Secondly, it has urged that the Plaintiffs had not filed the suit within six months from the date of the act complained of and the same was barred by time under Section 69(3) of the Irrigation Act. On these material propositions urged by defendant No. 1, the trial Court should have framed two issues as hereunder,.

(1) Whether the plaintiffs' suit was barred under sub-section (5) of Section 69 of the Irrigation Act ?

(2) Whether the plaintiffs' suit had been instituted within six months from the date of the act complained of and if not whether the same was barred by time under Section 69(3) of the Irrigation Act?

18. Issue No. 3 is not in conformity with Para 4 of the defence filed by defendant No. 1. Defendant No. 1 does not dispute the issue of a suit notice under Section 80 of the Code. But, what it had urged was that the suit filed by some persons that had not issued a notice and also by those the t had issued such a notice was not maintainable. On these Pleadings. issue No. 3 should have been framed as hereunder:

'Whether the suit filed by the Plaintiffs some of whom that had not issued a notice and others that had issued a notice under Section 80 of the Code was maintainable or not ?'

19. Before examining issue No. 3 the learned Munsiff did not direct the original notice issued under Section 80 of the Code to be Produced and mark-d as an exhibit which course would have been more satisfactory. But, at this stage this Court will not be justified in finding fault with that procedure and remit the case to the trial Court on that ground.

20. In the copy of the notice issued and produced along with the Plaint, the names and addresses of 65 persons are specified. But, the suit is filed by 67 Persons from which it is clear that the suit is filed at least by two Persons that had not issued notice under Section 80 of the Code. Secondly, the learned Munsiff has found that as many as 17 Persons that had issued notice, had not joined in filing the suit and in their Place, other Persons that had not issued notice have. Joined in file the suit. Lastly, the learned Munsiff has found a few other minor infirmities in the notice that are not necessary to notice and examine. From the above, what is clear and incontrovertible is that some reasons that had not notice have joined with certain other persons that had issued notice under Section 80 of the Code. In the first appeal before the learned Civil judge, as many as 25 Persons did not join in filing the appeal and as many as 14 persons were later transposed as respondents and this second appeal is filed by only 17 Persons. Who are these 17 persons that have filed this appeal, cannot be easily made out as the office before registering the appeal has not `even insisted an the counsel for the appellants to specify their ranks in the Courts below as is required by, the Rules. But, the position appears to be the same as had happened in the, trial Court except for t he fact that the number of persons is now restricted to 17.

21. As on the day notice under Section 80 of the Code was issued and the suit was instituted, Section 80 of the Code had not been amended and, therefore, this case has to be decided as the law then stood. In this view, the scope and ambit of Section 80 as amended by the Code of Civil Procedure (Amendment) Act of 1976 that has come into force on 1-2-1977 is not examined.

22. While the learned Munsiff examined the question with some earnestness and thoroughness, the learned Civil Judge (Sri H.L. Narayana Gouda now senior District Judge) examined this and other questions that arose for determination to say the least, in a sketchy and slipshod manner. He disposed of this question in these terms:

'In my opinion the suit cannot be severed and cannot be held to be valid in respect of the plaintiffs who have issued notice under Section 80 C. P. C. The suit is one and indivisible. The suit has to be dismissed on this ground.' His treatment of the other questions also is as perfunctory as it could possible be. Without any doubt, his judgment does not satisfy the requirements of Order 41, Rule 31 of the Code. In this view, I Propose to ignore the views of the learned Civil Judge and examine the question without the benefit of his views.

23. On the application of Section 80 of the Code to suits inter alia claiming injunction, there was difference of opinion between the High Court of Bombay and the other British Indian High Courts; the former taking the view that it was not necessary and the latter taking the view that it was necessary. In Bhagchand Dagadusa and others v. Secretary of State for India in Council the Judicial Committee of the Privy Council resolved the said conflict and emphatically ruled that Section 80 of the Code applies to a1l suits mid admits of no exception.

24. Before the Privy Council rendered its decision in Bhagchand's case. a Division Bench of the Madras High Court in Secretary of State for India in Council v. Perumal Pillai (1901) ILR 24 Mad 279, that being one of, the earliest cases, had to examine the validity of a suit instituted by three plaintiffs out of whom. Only two had any notice under Section 422 of the earlier Code corresponding to Section 80 of the present Code On an examination of that question, the Division Bench expressed thus:

'We do not think that any valid objection can be taken to the notice given on the ground that it proceeded from only two out of the three joint owners. It has been repeatedly held that the object of the notice required by Section 424. Civil Procedure Code, is to give the defendant an opportunity of settling the claim, if so advised, without litigation. That object is fully attained by two out of the three plaintiffs giving the notice, and the same consideration shows that the second Objection to the notice, viz., that no notice was given of the claim in respect of the amount collected as fasli-jasti for fasli 1303 is invalid.'

25. After the Privy Council rendered its decision in Bhagchand's case again a similar question arose for consideration before Sundaram Chetti. J. of the Madras High Court in Sree Rajah Venkata Rangiah Appa Rao Bahadur v. Secretary of State for India in Council (1931) ILR 54 Mad 416: (AIR 1931 Mad 175). In this case, Sundaram Chetty, J. noticing the earlier conflict and the ruling of the Privy Council in Bhagchand's case but without expressly referring to the ruling in Perumal's case held that the suit was not maintainable, in these words (at n. 176 of AIR 1931 Mad)

'In view of such a clear pronouncement it is no longer open to argue that the Courts can make exceptions or qualifications to the explicit terms of S. 80 of the Code of Civil Procedure on account of considerations of harship and absence of prejudice, or detriment to the interests of the Government. If the requisites of Section 80 should be literally complied with, I must say that the giving of notice about the suit claim by one Plaintiff would not be a strict compliance with the mandatory provisions of Section 80, when the suit is actually filed by two plaintiffs though one of them happens to be the Person that gave the notice. There should be identity of the Person who issued the notice with the person that brings the suit. In this view, it has been held that a suit brought by the legal representatives of a deceased man and a suit brought by a transferee would offend against Section 80 of the Code of Civil Procedure, if the notice required by that section was given by the deceased man or by the transferor; vide Bachchu Singh v. Secretary of State for India in Council ( (1902) ILR 25 All 187) and Mahadev v. Secretary of State : AIR1930Bom367 . As the dictum of the Privy Council indicates that it is no longer left to the discretion of the Court to hold in favour of the maintainability of a suit in spite of non-compliance with some of the requisites of the section, I have to find against the maintainability of the present suits on the ground that the notice as required by Section 80 of the Code of Civil Procedure was, not given'.

The above decision in Appa Rao's case was affirmed by a Division Bench of the Madras High Court in (Sree Rajah) Venkata Rengiah Appa Rao Bahadur v. Secretary of State : AIR1935Mad389 .

26. Again a similar question came up for consideration before a Division Bench of the Madras High Court in Government of Province of Madras v. Al. Ar. Rm. Vellayan Chettiar : AIR1944Mad544 and that Division Bench followed the enunciation made by Sundaram Chetti, J. in Apparao's case and approved by the Division Bench on appeal. The later decision of the Division Bench of the Madras High Court was affirmed by the Privy Council in Vellayan Chettiar v. Government of the Province of Madras AIR 1947 PC 197.

27. After the Privy Council rendered its decision in Bhagchand's case the British Indian High Courts have consistently taken the view that a suit filed by a person who has not issued a notice along with a Person who had issued a notice was not maintainable and the entire suit was liable to be dismissed without restricting the same to the Person that had issued the notice. Even after India attained independence and the jurisdiction of the Privy Council was abolished, our Supreme Court or the other High Courts have not dissented with the enunciation made by the Privy Council in Bhagchand's case Sri T. L. Venkatarama Aiyar, one of the eminent judges of our Supreme Court, editing the 13th edition of Mulla's Code of Civil Procedure considered to be one of the classic treatises on the subject under the heading 'Sufficiency of Notice' does not dissent from the view expressed by the Privy Council in Bhagchand's case and the later rulings of the Madras High Court which definitely ruled that a suit filed by a person that had not issued a notice along with a person that had issued a notice, was not maintainable. As pointed out in the same book 'Sufficiency of Notice' is not the sane thing as 'substantial compliance' of S. 80 of the Code.

28. Sri Kulkarni has not placed before me any ruling of the Supreme Court or any other High Court or has not advanced any substantial ground to unsettle the law that has held the field for well over 50 years. After all stability and continuity of a legal position is as important as the correct enunciation of law itself. In my view, the enunciation made by the Privy Council in Bhagchand's case consistently followed by the Indian High Courts though the same is not now binding on this Court, should not be lightly unsettled and there is every justification to follow the same. Even otherwise, every one of the reasons on which the Privy Council rested its decision in Bhagchand's case and Vellayan Chettiar's case (AIR 1947 PC 197) and the later rulings of the Madras High Courts noticed by me are sound in law and I am in respectful agreement with the view expressed in those cases. From this it follows that the suit filed by the plaintiffs, some of whom had not issued notice, was clearly not maintainable and the same has been rightly dismissed by the Courts below and there are no grounds to interfere with their judgments and decrees. As the judgments and decrees of the Courts below require to be affirmed on this short ground, which goes to the very root of the matter, it is not necessary to examine the other two points formulated by me arising out of issues 1 and 2 framed by the learned Munsiff and re-settled by me. On this view, the Courts below also should have refrained from examining the other issues and should not have expressed their views, for which reason, I set aside their findings on those issues and leave them open, without expressing any opinion.

29. In the result, I dismiss this second appeal, with costs of respondent No. 1

30. Appeal dismissed.


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