Municipal Corporation & Anr Vs. H.S.Mohd.Khan (Dead) by Lrs. & Ors
 Insc 656 (14
Mohapatra & P. Venkatarama Reddi D.P.Mohapatra, J.
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.
the parties filed appeals before the district court.
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 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.
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
aggrieved by the judgment of the High Court the Municipal Corporation filed
these appeals assailing the same.
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 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.
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.
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.
the judgment of the High Court is unsustainable and is liable to be set aside.
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.