Case nº 454-455 of Civil Appeal, April 28, 2008 (case Dr. Narendra K Amin VS. State Of Gujarat And Anr)

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The Judgement Information System CASE NO.: Appeal (civil) 454-455 of 2002

PETITIONER: Ramakrishna Rao (dead) by Lr RESPONDENT: Rai Murari DATE OF JUDGMENT: 21/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a learned Single Judge of the Karnataka High Court who while dismissing the Second appeal filed by the respondent has given certain directions which according to the appellant could not have been given in the absence of any finding.

2. A suit for permanent injunction was filed by the appellant, with the prayer to direct the defendant, respondent herein from interfering with the peaceful possession and enjoyment over the suit schedule land. The trial court dismissed the suit but the first appellate court allowed the appeal. The High Court in the Second appeal as noted above dismissed the same but directed payment of certain amounts by the appellants to the respondent. The directions in this regard read as follows: "Now the defendant's grievance is that the plaintiff could not have the benefit of the property as well as money paid by the defendant's wife on 19.6.1983. In equity and in law, inasmuch as agreement is found to be valid by the first Appellate Court, it is the duty of the plaintiff to return the money of Rs.5,000/- together with the interest at 12%

per annum. Such amount shall be charged in the property. The plaintiff is directed to pay the same within a period of six months and the decree of injunction shall come into operation only after payment is made. Subject to the above direction, the second appeal is dismissed."

3. Subsequently, the figure of Rs.5,000/- was substituted with a figure of Rs.32,000/-. The High Court proceeded on the basis as if the suit for injunction was on the ground that plaintiff had entered into an agreement with defendant's wife on 19.6.1983. It was further observed that on the basis of the agreement the defendant's wife claimed to have been put in possession of the land and the right to property cannot be taken away by the plaintiff by way of injunction or otherwise.

To say the least, this shows complete non application of mind.

This is not the case of the plaintiff in the suit but as a matter of fact it was the defendant's case. To add to the vulnerability, the High Court found that the agreement was found to be valid by the first appellate court and, therefore, it was the duty of the plaintiff to return the amount with...

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