JUDGMENT

B.M.Shyam Prasad, J. - Heard the learned counsel for the parties and perused the impugned order dated 27.10.2017 in the original suit in O.S. No.320/2014 on the file of the First Additional Senior Civil Judge, Ballari (for short, 'the Civil Court').

2. This appeal is by the plaintiffs in the aforesaid suit being aggrieved by the Civil Court's impugned order rejecting the plaint on the ground of maintainability while deciding on the additional issue even before the trial is commenced. The additional issue reads, whether the suit for declaration of title and the counter claim by the second and third respondents could be maintained in view of the undisputed fact that the subject property is notified for acquisition. The Civil Court considering this additional issue, has concluded that the suit would not be maintainable in view of the decision of the Hon'ble Supreme Court in Commissioner, Bangalore Development Authority and another vs. Brijesh Reddy and another,2013 2 AllKR 714 .

3. The common submission by the learned counsel for the parties is that neither the appellants nor the contesting respondents dispute the acquisition, and the only question, given the suit claim and the counter claim is, who would be entitled for the compensation payable by the acquiring body, the fourth respondent. The suit is commenced even before the finalization of the acquisition proceedings. Further, the learned counsel draws the attention of this Court to earlier decision of this Court, including the decision in R.F.A. No.100032/2017, where this Court, in similar circumstances, has set aside the order of dismissal of the suit on the ground of maintainability and has restored the suit for adjudication on merits.

4. This Court in the facts and circumstances of the case is of the considered view that the Civil Court has erred in rejecting the plaint under Order VII Rule 11(d) of CPC while answering additional issue as regards maintainability of the suit. The Civil Court ought to have seen that the decision of the Hon'ble Supreme Court in Commissioner, Bangalore Development Authority and another vs. Brijesh Reddy and another was in the context of a challenge in the acquisition proceedings in a civil suit, and such question does not arise from the pleadings of the parties.

5. It is also undisputed that the fourth respondent, because of the pending proceedings, has not deposited the compensation payable for the acquisition of the subject property. There should be no occasion for the fourth respondent to withhold compensation because of the present proceedings as there is no challenge to the acquisition proceedings and the compensation could be paid either to the appellants or the contesting respondents subject to the decisions in the civil suit. As such, it would be appropriate to reserve liberty to the appellants or the contesting respondents to make necessary application with the Civil Court seeking direction to the fourth respondent to deposit the compensation with a request for investing the amount deposited in any nationalised bank subject to its further orders.

This Court, therefore, finds it appropriate dispose of this appeal setting aside the impugned order and restore the suit in O.S. No.320/2014 to the file of the First Additional Senior Civil Judge, Ballari and restoring the suit with a direction to the Civil Court to decide the same on merits with opportunity to both the parties to lead their evidence in accordance with law, and reserving the aforesaid liberty to the parties.

Ordered accordingly.

Further, the parties shall appear before the Civil Court without notice of first hearing on 03.11.2020.