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Judgment
Ashok B. Hinchigeri, J.—This appeal is directed against the judgment and decree, dated 12.7.2012 passed by the Court of the XXXIX Additional City Civil and Sessions Judge, Bangalore in O.S. No. 7315/2009. The version of the appellant is that the supervisory work of the toilets and urinals situated opposite to Shanthala Silk House, Goods Shed Road was entrusted to her. Complaining that the supervisory work is being withdrawn from her, she filed the suit seeking the relief of perpetual injunction. The first respondent - defendant filed the written statement contending that the suit is not maintainable either in law or on facts. The plaint allegations were denied. The first respondent made it clear that the maintenance work of the toilets and urinals was not awarded to the appellant; it was given to one Sri Narasaiah, a retired employee of the first respondent.
Based on the rival pleadings, the Trial Court formulated the following issues:
1) Whether the plaintiff is entitled for supervising the toilets situated in the suit schedule property area as claimed by her in the suit?
2) Is the plaintiff entitled for permanent injunction as prayed?
3) What order or decree?
The appellant got herself examined as PW 1 marking the documents at Ex. P1 to Ex. P7. The respondents cross-examined the PW 1 but did not adduce their evidence. The Trial Court held that the suit is not maintainable for the non-compliance with the requirement of Section 80 of the Code of Civil Procedure, 1908 and answered the issues against the appellant and dismissed the suit.
Sri Adinarayan, the learned counsel for the appellant submits that the Trial Court never heard the appellant on merits. The arguments took place only on I.A. No. 6 for the appointment of Court Commissioner. Thereafter, the Trial Court has proceeded to pass the judgment on merits.
Sri Adinarayan further submits that the Trial Court has erred by holding that the suit is not maintainable on account of the non-issuance of notice u/s 80 of the CPC. He submits that as the respondent - defendants are not the Government and Government officers, the question of issuing Section 80 notice would not arise at all. He further submits that the notice prescribed u/s 482 of the Karnataka Municipal Corporations Act, 1976 could not be given or account of the urgency involved. However, the appellant filed I.A. No. 1 seeking the dispensation of Section 482 notice. By its order, dated 17.11.2009, the Trial Court had allowed the said I.A. Without noticing this aspect of the matter, the Trial Court has dismissed the suit on the ground of non-compliance with the requirements of Section 80 CPC.
Sri S.N. Prashanth Chandra, the learned counsel for the respondents submits that the suit is liable to be rejected on the short ground of the locus standi. He submits that the maintenance-work of the toilets and urinals in question was awarded to one Sri Narasaiah. Claiming to be the daughter-in-law of the said Narasaiah, but without any litigational competence, the appellant has filed the suit, so submits Sri Prashanth.
The first question that falls for my consideration is whether the appellant was heard on the main matter. The judgment and decree under appeal nowhere mentions of the arguments made by the appellant''s side. The judgment does not say that the appellant was given adequate opportunities and that she did not avail of the same to address the arguments. The order sheet, dated 9.7.2012 reads as follows:
Heard on application & also suit by 12/7 Sri MGV orally objected for appointment C.R. order and judgment.
On the next day (12.7.2012), the I.A. No. 6 for the appointment of Court Commissioner is rejected and the suit is dismissed. It is clear that the appellant was not given adequate opportunity of being heard in the matter. On this short ground alone, the judgment and decree under appeal are liable to be set aside.
The second question that falls for my consideration is whether the Trial Court is justified in holding that the suit is not maintainable on the ground of non-compliance with the requirements of Section 80 of CPC. Section 80 has no application for BBMP and its officers. Section 80 has application only for the Government and the public officers. The Trial Court also appears to have missed track of the order, dated 17.11.2009 allowing the appellant''s I.A. No. 1 seeking the dispensation of notice u/s 482 of the Karnataka Municipal Corporations Act.
Worst of all, no issue is framed by the Trial Court on the maintainability aspect. Without framing the issue on maintainability but dismissing the suit on the ground of maintainability has put the party to prejudice.
For the two aforesaid reasons, I set aside the judgment and decree under appeal. The matter is remanded to the Trial Court. The Trial Court shall afford the opportunity of hearing to both the parties on merits and thereafter decide the matter. It is made clear that all the contentions including the appellant''s locus standi are kept open. The parties and/or their respective learned advocates are directed to be present before the Trial Court on 2.1.2014 without waiting for any notice from the Trial Court. The Trial Court shall resume the proceedings from the arguments stage. Both the parties shall co-operate with the Trial Court in the speedy disposal of the matter. This appeal is accordingly allowed. No order as to costs.