Case Note & Summary
The case involves a second appeal under Section 100 of the Code of Civil Procedure, 1908, filed by the appellant against the judgment and decree dated 12.10.2012 passed in R.A.No.59/2010 by the Principal Civil Judge (Sr.Dn.) and JMFC, Srirangapatna, which dismissed the appeal and confirmed the judgment and decree dated 30.8.2010 passed in O.S.No.75/2006 by the Principal Civil Judge (Jr.Dn.) and JMFC, Srirangapatna. The appellant, K. Ballarigowda, is the defendant in the original suit, and the respondent, Sarojamma, is the plaintiff. The suit was originally filed for declaration of title and injunction, but during the pendency of the appeal, the plaintiff amended the plaint to also seek recovery of possession. The High Court, on 09.12.2013, framed a substantial question of law: "Whether the judgment and decree of the Courts below sustains in view of the suit for the relief of declaration without seeking the relief of possession?" However, upon hearing the counsel, the court observed that the question was not happily framed because the plaintiff had already amended the plaint to include a prayer for recovery of possession. The appellant's counsel argued that despite the amendment, the question of law remained relevant. The court, after considering the submissions, found that the amendment had rendered the framed question infructuous. Consequently, the court dismissed the second appeal, as the substantial question of law was not pressed or did not arise. The decision was in favor of the respondent/plaintiff.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court framed a substantial question of law regarding maintainability of a suit for declaration without possession, but noted that the plaintiff had amended the plaint to include a prayer for recovery of possession, rendering the question infructuous. (Para 2-4)
Issue of Consideration
Whether the judgment and decree of the courts below sustain in view of the suit for the relief of declaration without seeking the relief of possession?
Final Decision
The High Court dismissed the second appeal, holding that the substantial question of law framed was not pressed or did not arise due to the amendment of the plaint.
Law Points
- Substantial question of law
- Amendment of plaint
- Declaration and possession
- Second appeal under Section 100 CPC
Case Details
2017 LawText (KAR) (04) 18
R.S.A NO. 102/2013 (DEC & INJ)
K. N. Mohan (for appellant), V. Srinivas (for respondent)
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Nature of Litigation
Second appeal under Section 100 CPC against concurrent findings in a suit for declaration and injunction, later amended to include recovery of possession.
Remedy Sought
Appellant sought to challenge the judgment and decree of the lower appellate court confirming the trial court's decree.
Filing Reason
Appellant was aggrieved by the dismissal of his appeal by the Principal Civil Judge (Sr.Dn.) and JMFC, Srirangapatna.
Previous Decisions
Trial court (O.S.No.75/2006) decreed the suit; first appeal (R.A.No.59/2010) dismissed; second appeal filed.
Issues
Whether the judgment and decree of the courts below sustain in view of the suit for the relief of declaration without seeking the relief of possession?
Submissions/Arguments
Appellant's counsel argued that the substantial question of law regarding declaration without possession remained relevant despite amendment.
Respondent's counsel argued that the amendment to include recovery of possession rendered the question infructuous.
Ratio Decidendi
When a plaintiff amends the plaint to include a prayer for recovery of possession, a substantial question of law framed on the basis of the original plaint (declaration without possession) becomes infructuous and need not be answered.
Judgment Excerpts
On 09.12.2013, this court has framed the following substantial question of law for consideration:- 'Whether the judgment and decree of the Courts below sustains in view of the suit for the relief of declaration without seeking the relief of possession?'
After hearing the learned counsel, the Court is of the opinion that, the above substantial question of law is not happily framed because of the simple reason that, the plaintiff by way of an amendment to the plaint has sought for declaration as well as for recovery of possession.
Procedural History
Original suit O.S.No.75/2006 was decreed by the Principal Civil Judge (Jr.Dn.) and JMFC, Srirangapatna on 30.8.2010. The appellant's appeal R.A.No.59/2010 was dismissed by the Principal Civil Judge (Sr.Dn.) and JMFC, Srirangapatna on 12.10.2012. The appellant then filed the present second appeal under Section 100 CPC, which was admitted on 09.12.2013 with a framed substantial question of law. The High Court heard the appeal and dismissed it on 05.04.2017.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
