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RSA No. 100044 of 2014

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 04^TH DAY OF JULY, 2022

BEFORE

THE HON'BLE MR JUSTICE E.S.INDIRESH

REGULAR SECOND APPEAL NO. 100044 OF 2014 (-)

BETWEEN:

K NAGARAJ S/O. K SIDDAPPA

AGE: 51 YEARS, OCC: BUSINESS

R/O. BELLARY ROAD

KURUGOD, TQ and DIST: BELLARY

…APPELLANT

(BY SRI. ABHISHEK PATIL, ADVOCATE)

AND:

1.

SATISHBABU S/O.NEELKANTHAPPA

AGE: 51 YEARS, OCC: BUSINESS

R/O. KARTIK WINES

DOOR NO. 1140/B, WARD NO.1

TORANAGALLU 583 123

PERMANENT RESIDENT OF

NEAR M G BROTHERS

ANANTPUR ROAD, PATEL NAGAR,

BELLARY 583 101.

2.

THE DEPUTY COMMISSIONR OF EXCISE

BELLARY 583 101

DIST: BELLARY

3.

THE COMMISSIONER OF EXCISE

GOVERNMENT OF KARNATAKA

II FLOOR, VAKKALIGARA BHAVAN

BANGALORE 560 001

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RSA No. 100044 of 2014

4.

THE DEPUTY COMMISSIONER (REVENUE)

BELLARY 583 101.

…RESPONDENTS

(BY SRI. RAVI HEGDE, ADVOCATE FOR R1;

SRI. PRASHANT MOGALI, GOVT.ADVOCATE FOR R2 TO R4)

THIS RSA IS FILED U/O. XLII RULE 1 R/W. SEC. 100 OF

CPC

1908,

AGAINST

THE

JUDGEMENT

&

DECREE

DTD:17.12.2013 PASSED IN R.A.NO.35/2013 ON THE FILE OF

THE SENIOR CIVIL JUDGE & JMFC, KUDLIGI, DISMISSING THE

APPEAL FILED AGAINST THE JUDGMENT AND DECREE

DTD:21.02.2013

AND

THE

DECREE

PASSED

IN

O.S.

NO.46/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC., AT

SANDUR, ALLOWING TH SUIT FILED FOR DECLARATION.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY.

THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This Regular Second Appeal is preferred by the plaintiff

challenging the judgment and decree dated 17.12.2013 passed in

R.A.No.35/2013 on the file of the Senior Civil Judge and JMFC,

Kudligi (hereinafter referred to as ‘the First Appellate Court’, for

brevity), confirming the judgment and decree dated 21.02.2013

passed in O.S. No.46/2010 on the file of the Civil Judge and JMFC,

Kudligi (hereinafter referred to as ‘the trial Court’, for brevity),

dismissing the suit of the plaintiff.

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RSA No. 100044 of 2014

2.

For the sake of convenience, the parties to this appeal

shall be referred to in terms of their status and ranking before the

trial Court.

3.

The facts relevant for the purpose of adjudication of

this appeal are that, the plaintiff claims to be the CL-9 license

holder and was running a bar and restaurant in the name and style

of M/s.Supreme Bar at Toranagallu, Ballari District and the said

license was being renewed every year. It is further stated by the

plaintiff that, defendant No.1 is running a bar and restaurant under

the name and style M/s. Kavana Wine at Door No.1140/1B of

Toranagallu, Hospet road and it is shown that the license issued in

favour of the plaintiff has been transferred in the name of defendant

No.1 and as such, plaintiff disputed the said transfer of license by

defendants No.2 to 4 in favour of defendant No.1 and filed a suit in

O.S.No.46/2010, seeking the declarative relief that the affidavit

dated 20.09.2004 executed by defendant No.1 with the defendant

No.2 and transfer of license in Form No.17/B by the defendant

No.2 is forged and null and void.

4.

On service of notice, defendant No.2 entered

appearance and filed detailed written statement alleging that the

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RSA No. 100044 of 2014

suit is not maintainable for want of notice under Section 80(1) of

the Code of Civil Procedure. Defendant No.2 – Deputy

Commissioner of Excise, Ballari, has also raised preliminary

objection that the suit is not maintainable under Section 68 and 68-

B of the Karnataka Excise Act, 1965 (hereinafter referred to as ‘the

Act’, for brevity) and accordingly sought for dismissal of the suit.

Defendant No.2 has also filed I.A.No.IX under Order 7 Rule 11(d)

R/w. Section 151 of the Code of Civil Procedure and sought for

rejection of the plaint. The plaintiff filed objections to the I.A. No.IX.

The trial Court after considering the