Hubli Dharwad Municipal Corporation Vs. Ravi P. Tiwari - Court Judgment

Excerpt:
karnataka municipal corporations act, 1976 (karnataka act no. 14 of 1977) - section 471 & civil procedure code, 1908 (central act no. 5 of 1908) as amended in karnataka -order 41 rule 1 - order 41 rule 1 does not confer right of appeal - appeal against order under special enactment as provided therein - no provision in kmc act for appeal against order under section 471 - no appeal lies to high court.;question of law:;whether an appeal lies to this court against an order passed by the district judge under section 471 of the karnataka municipal corporations act, 1976;(i) all that the karnataka amendment to order 41 rule 1 of the c.p.c. provides is appeals which lie to this court under special enactments, could be presented in the same form and in the same manner as prescribed under order 41 rule 1 of the c.p.c. it is not a provision which confers a right of appeal. ;(ii) as far as the question whether there is an appeal or not in respect of an order under a special enactment, one has to see the provisions of that enactment. it is not disputed that there is no provision in the act providing for an appeal against the order passed by the district judge under section 471 of the act.;an appeal does not lie to this court against an order passed by the district judge under section 471 of the karnataka municipal corporations act, 1976. - order 26, rule 10-a: [s. abdul nazeer,j] appointment of a commissioner for scientific investigation rejection of application challenge as to - suit filed by the plaintiff for partition and separate possession of the suit schedule properties - defendants 1 & 2 pleaded prior partition of the properties as per ex.d1.- denial of signature on ex.d1, by defendant no.3 - whether the case involves a question which requires scientific investigation which cannot be conducted before the court - held, admittedly, the suit filed by the plaintiff is for partition and separate possession of the suit schedule properties. it is the case of the plaintiff as also defendant no.3 that the properties are their ancestral properties. however, defendant nos. 1 and 2 contend that there is a prior partition of the properties as per the memorandum of partition ex.d1 dated 29.4.1999. defendant no.3 in her evidence has denied her signature on the said document.-whether the signature in dispute is the signature of defendant no.3 or not has to be answered by an expert after comparing the same with the admitted signature. this question has to be scientifically analyzed, examined and considered by an expert and then, he has to give his opinion after scientifically testing the same. the burden is on defendant nos. 1 and 2 to establish that the disputed signature is of defendant no.3.therefore, the court below was not right in rejecting the application filed by defendant nos. 1 and 2. order 26, rule 10-a r/w section 151: [n.k. patil,j] application under - allegation of the husband/respondent against his wife/petitioner that she is suffering from paranoid schizophrenia - divorce petition by the husband/respondent rejection of petitioners application seeking experts second opinion challenge as to held, it is crystal clear from the relevant provisions of the act that, paranoid schizophrenia is one of the grounds but not the only ground for divorce. the said disease should be exhaustively examined, proved and certified by expert doctors in the field of psychiatry. therefore, taking into account the paramount consideration and welfare of the children and also the seriousness of the alleged disease, alleged to have been suffered by the petitioner, the matter is required to be referred to the expert opinion at nimhans hospital, bangalore to have a second opinion. once that is done, the litigants would know their fate, where they stand and that would enable them to take right and conscious decision and get ready to face the consequences. impugned order is not justified and the same is liable to be set aside. rama jois, j.1. the following question of law arises for consideration in this appeal, in view of the objection raised by the office and the opposition of the learned counsel for the said objection:'whether an appeal lies to this court against an order passed by the district judge under section 471 of the karnataka municipal corporations act, 1976?'2. section 471 of the karnataka municipal corporations act, 1976 ('the act' for short) reads:'471. determination by district court of sums payable: where in any case not provided for in section 180 any municipal authority or any person is required by or under this act or any rule, bye-law, regulation or contract made under it to pay any costs, damages, penalties, compensation, charges, fees, rents, expenses, contributions or other sums referred to in section 470, the amount or apportionment of the same shall, in case of dispute, be ascertained and determined except as is otherwise provided in sections 207, 407 or 460 or in the land acquisition act, 1894, by the district court having jurisdiction on application made to it for this purpose at any time within six months from the date when such costs, damages, penalties, compensation, charges, fees, rents, expenses, contributions or other sums first became payable.'under the above section, a dispute was raised before the district judge, dharwad, against the hubli-dharwad municipal corporation, by the respondent. the questions raised before the district judge were:'(a) to decide and determine the dispute between the applicant and the opponent in respect of the suit tender work and various tender items mentioned in the petition;(b) to award a sum of rs. 9,65,113-09 as the amount due to the applicant from the opponent; and (c) future interest at 18% per annum on rs. 5,48,506-00 from the date of application till payment; and (d) for costs.''(i) the petition is partly allowed.(ii) the respondent do pay a sum of rs. 2,81,626-30 to the petitioner, with interest at 6% p.a. on a sum of rs. 2,29,586-99 from the date of petition till realisation.(iii) the parties to bear their own costs. (iv) advocate's fee is fixed at rs. 100/-.'aggrieved by the said order, the appellant-corporation has presented this appeal.3. the office asked the learned counsel to state as to how the appeal was maintainable. the learned counsel replied that the appeal was maintainable under order 41, rule 1. office has pointed out that the order in question is made under the special jurisdiction conferred under section 471 of the act and no appeal is provided under the act, and therefore no appeal could have been filed under order 41, rule 1 of the c.p.c.4. sri t.r. rangaraju, the learned counsel for the appellant, however, contended that the appeal was maintainable in view of karnataka amendment to order 41, rule 1 of the c.p.c. the relevant portion of the karnataka amendment, on which the learned counsel relies, reads:'order 41, rule 1: provided that in appeals from decrees or orders under any special or local act to which the provisions of parts-ii and iii of the limitation act 1908, do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the appellate court may admit a memorandum of appeal subject to the production of the copy of the decree or order appealed from, within such time as may be fixed by that court.'we are unable to agree. order 41 only prescribes the form of appeal and also the documents which should accompany a memorandum of appeal. the purport of order 41 is that whenever an appeal lies to this court against any order either under the provisions of the c.p.c. or under any special provision contained in any special enactment, the appeal should be presented in the form prescribed under order 41 rule 1. all that the amendment provides is appeals which lie to this court under special enactments, could be presented in the same form and in the same manner as prescribed under order 41, rule 1 of the c.p.c. it is not a provision which confers a right of appeal. as far as the question whether there is an appeal or not in respect of an order under a special enactment, one has to see the provisions of that enactment. it is not disputed that there is no provision in the act providing for an appeal against the order passed by the district judge under section 471 of the act. it is also not the case of the learned counsel for the appellant that an appeal lies under order 43, rule 1, which is a provision which provides a right of appeal in respect of matters falling under section 104 of the c.p.c.5. for these reasons, we answer the question as follows:'an appeal does not lie to this court against an order passed by the district judge under section 471 of the karnataka municipal corporations act 1976.'6. accordingly, we hold that this appeal is not maintainable.7. the learned counsel for the appellant is at liberty to seek conversion of this appeal to any other petition, which is maintainable under any of the provisions of law.8. office is directed to return the records forthwith.