SMT. SAROJA T. S. vs. SMT. NAGARATHNAMMA

- 1 -

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA

WRIT PETITION NOS.44691-44692 OF 2017 (GM-CPC)

C/W

WRIT PETITION NOS.45112 OF 2017 & 46538 OF 2017 (GM-CPC)

IN W.P.NOs.44691-44692/2017

BETWEEN:

... Petitioners

(By Smt. K.M.Vamshi, Advocate for Sri K.Suman, Advocate)

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AND:

And Village Industries Workers House Building Co-operative Society Ltd., having its office at No.10, Jasma Bhavan, Bengaluru Represented by its Special Officer …Respondents

(By Sri Sharavan S Lokre, Advocate for R1, Sri Suresh S Lokre, Advocate for R2 & Sri Pradeep Singh, Advocate for Sri H.S.Venkatesh Murthy, Advocate for R3)

These Writ Petitions are filed under Article 227 of The Constitution Of India praying to quash/set aside the orders dated 13.04.2017 vide annexure-N and dated 17.07.2017 vide Annexure-Q passed by the Court of the XX Additional City Civil and Sessions Judge, Bengaluru

- 3 - in O.S.No.7758/2016 vide Annexure-A as arbitrary, illegal and being without jurisdiction.

IN W.P.NOs.45112/2017 & 46538/2017

BETWEEN:

Smt. Saroja T.S. Aged about 65 years W/o Sri T.N.Lakshminarayana R/at No.6/11A, Opp. Anjaneya Temple N.S.Palya, BTM 1st Stage Bannerghatta Road Bengaluru – 560 076

... Petitioner

(By Smt. K.M.Vamshi, Advocate for Sri K.Suman, Advocate)

AND:

- 4 - 3. The Karnataka State Khadi

And Village Industries Workers House Building Co-operative Society Ltd., having its office at No.10, Jasma Bhavan, Bengaluru Represented by its Special Officer …Respondents

(By Sri Suresh S Lokre, Advocate for R1 & R2 Sri Pradeep Singh, Advocate for Sri H.S.Venkatesh Murthy, Advocate for R3)

These Writ Petitions are filed under Article 227 of The Constitution Of India praying to quash/set aside the orders dated 13.04.2017 and 17.07.2017 passed by the Court of the XX Additional City Civil and Sessions Judge, Bengaluru in O.S.No.7758/2016 vide Annexure- A as arbitrary, illegal and being without jurisdiction.

These Writ Petitions coming on for ‘Hearing- Interlocutory Application’ this day, the Court made the following:

ORDER All these petitioners who are not parties to the original proceedings in O.S.No.7758/2016 are before this Court to quash the orders dated 13.04.2017 and 17.07.2017 passed by the XX Additional City Civil and Sessions Judge (CCH-32) Bengaluru in respect of Sy.Nos.9/4 and 9/3 measuring 2 acre 11 guntas

- 5 - situated at Jakkur village, Yelahanka Hobli, Bengaluru North Taluk. 2. The brief facts of the cases are that, the respondent No.1 who is the plaintiff in O.S.No.7758/2016 filed suit for declaration and permanent injunction against the respondent Nos.2 and 3 in respect of the suit schedule property morefully described in the schedule to the suit, contending that the plaintiff was the owner of the suit schedule property and she is entitled to the relief sought for. The same was contested. The trial Court by judgment and decree dated 01.04.2017 decreed the suit, declaring that the plaintiff is the owner of the suit schedule property and further ordered that the registered agreement dated 03.08.1992 is barred by limitation and not binding on the plaintiff and further decreed that the defendant-Society or anybody on their behalf permanently restrained from interfering with the

- 6 - plaintiff’s peaceful possession and enjoyment of the suit schedule property. The said decree passed by the trial Court in favour of first respondent-Nagarathnamma has reached finality. 3. After the decree passed by the trial Court, the original plaintiff filed an application under Section 151 of the Code of Civil Procedure for a direction to the Amruthhalli Police Station, Bengaluru North and Sub Registrar/Tahsildar, Yelahanka, Bengaluru North Taluk for protection of the suit schedule property, contending that the suit filed by the plaintiff-Nagarathnamma was decreed by the trial Court on 01.04.2017, restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. Even after judgment and decree passed by the trial Court, the defendant Society is not allowing the plaintiff and her family members entering into the suit schedule property and the Society also taken temporary

- 7 - electricity connection from BESCOM in the suit schedule property illegally. Therefore, the plaintiff approached the Amruthhalli police station on 10.04.2017 and Sub Registrar/Tahsildar, Yelahanka, Bengaluru North Taluk for the protection of the suit schedule property and for change of revenue records. 4. The plaintiff also filed another application under Section 151 of the Code of Civil Procedure on 17.07.2017 to direct the Deputy Commissioner of Police North-East Division, Bengaluru (Amruthhalli Police) for protection to the suit schedule property and the Joint Commissioner, BBMP, Byatarayanapura, Bengaluru for transfer of katha and revenue documents of the suit schedule property in favour of the plaintiff, reiterating the averments made in the earlier application. 5. The trial Court considering the said applications, by the impugned order dated 13.04.2017, has recorded that in view of the submission made by

- 8 - the learned advocate for defendant Nos.2 and 3 that they have no objection to allow the application, it has issued direction to the Circle Inspector of Police, Amruthhalli Police Station to provide necessary protection to the suit schedule property as prayed in the I.A. and by the impugned order dated 17.07.2017, it has also directed the Deputy Commissioner of Police, North East Division, Bengaluru (Amruthhalli Police) as well as the Joint Commissioner, BBMP, to provide police protection and to issue katha in respect of suit schedule property. 6. While passing the impugned order dated 17.07.2017, the trial Court recorded that, the learned Advocate for respondent No.3 filed a memo, who is representing the Special Officer, Karnataka State Kadhi and Village Industries House Building Co-operative Society that he has no objection for construction of the compound wall by demolishing the temporary sheds

- 9 - and for cancellation of the BBMP katha issued in the name of the Society in respect of the suit schedule property and moreover, the Society has not preferred any Appeal against the judgment and decree. Therefore, the learned trial Judge allowed the application and directed the Deputy Commissioner of Police, North East Division, Bengaluru (Amruthhalli Police) to provide police protection to the plaintiff in respect of the suit schedule property and the Joint Commissioner, BBMP, Byatarayanapura, Bengaluru to issue katha in respect of the suit schedule property in favour of the plaintiff. Hence, the present writ petitions are filed contending that, in view of the impugned orders passed by the trial Court, the jurisdictional police and the jurisdictional BBMP Joint Commissioner are taking action against the petitioners, who are the owners of the properties in question as stated in the writ petition. Hence, the present writ petitions are filed for the reliefs sought for.

- 10 - 7. I have heard the learned counsel for the parties to the lis. 8. When the matter was posted for admission on 13.11.2017, Sri K. Suman, learned counsel for petitioners contended that after the decree was passed on 01.04.2017 in respect of the agricultural lands bearing Sy.Nos.9/4 and 9/3 situated at Jakkur village, Yelahanka Hobli, Bengaluru North Taluk measuring 2 acre 11 guntas in favour of the plaintiff, the impugned orders came to be passed on 13.04.2017 and 17.07.2017 directing the Amruthhalli police and the Deputy Commissioner of Police, North East Division, Bengaluru (Amruthhalli Police) to provide police protection and also the Joint Commissioner, BBMP, to issue katha in respect of the suit schedule property in favour of the plaintiff contending that the decree was made by the learned Judge in respect of the agricultural lands and the impugned orders passed by the trial

- 11 - Court directing the Joint Commissioner, BBMP and the Deputy Commissioner of Police to give protection to issue katha in respect of the agricultural lands in favour of the plaintiff are totally without jurisdiction. 9. Learned counsel for the petitioners also contended that, learned Judge become functus officio and he has no power to issue such directions. He would further contend that the petitioners are owners of Site Nos.34, 35 and 37 situated at Khadi Board, Jakkur village and judgment and decree passed by the trial Court is not binding on the petitioners. Therefore, he sought to quash the impugned orders by allowing the writ petitions. 10. Per contra, Sri Suresh S Lokre, learned counsel appearing for the decree holder submits that the decree passed in respect of agricultural lands as stated supra. The petitioners are not claiming any relief in respect of the suit schedule property in respect of

- 12 - which the decree was passed by the trial Court. As per the sale deeds produced by the present petitioners, all the petitioners are claiming that they are the owners of vacant Site Nos.34, 35 and 37 respectively situated at Jakkur village, Yelahanka Hobli, Bengaluru North Taluk and no where in the sale deeds they have referred to what is the site number, which was the subject matter of the decree. Therefore, he sought to dismiss the writ petitions mainly on the ground that the petitioners are no way concerned to the property mentioned in the judgment and decree passed by the trial Court and they have no locus standi to file present writ petitions. 11. Sri Pradeep Singh, Advocate for Sri H.S.Venkatesh Murthy, learned counsel appearing for respondent No.3 sought to justify the impugned order and contended that the petitioners have no locus standi to file present writ petitions.

- 13 - 12. In view of the aforesaid rival contentions urged by the learned counsel for the parties, this Court called for explanation from the concerned Judge, who passed the impugned orders as to under what circumstances, he has issued directions to provide the police protection and to issue katha in respect of the agricultural lands, that too after disposal of the suit between the parties and this Court also made it clear that the petitioners are claiming their rights in respect of Site Nos,34, 35 and 37 and it is always open for the petitioners to approach the competent Court or appropriate Court to protect their rights, if any in accordance with law. 13. In response to the order passed by this Court dated 13.11.2017, the learned Judge, who passed the impugned orders after the decree, by his explanation dated 23.11.2017, sought to justify the impugned orders and ultimately has stated that if there

- 14 - is any lapses, while considering the IA’s, the same may be pardoned. The explanation offered by the learned Judge, who passed the impugned orders relying upon the judgments which pertain to pending matters, is not proper and this Court is not satisfied with the explanation. Therefore, the learned Judge who passed the impugned order is directed not to repeat such mistakes and a word of caution is issued to him to be more careful in future. 14. The suit filed by the first respondent Nagarathnamma came to be decreed on 01.04.2017. The said decree has reached finality. Once the decree has reached finality, the learned Judge who passed the decree becomes functus officio. In spite of the same, the plaintiff filed two applications, one for police protection and another for direction to Joint Commissioner, BBMP to issue Katha and revenue records in respect of the suit schedule property in favour of plaintiff/decree holder.

- 15 - 15. Unfortunately, for both the applications, learned counsel appearing for defendants submitted no objection to allow the same. Thereby, the trial Court proceeded to pass the impugned orders which are totally without jurisdiction. 16. Once decree is made, the learned Judge becomes functus officio. The dictionary meanings of functus officio are as under: As per BLACK’S LAW DICTIONARY, 2009, 9th Edition, Pg.No.743 “Having performed his/office, an officer or official body without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

As per Wharton’s Law Lexicon, 1953, 14th Edition, Pg.No.441: “A person who has discharged his duty, or whose office or authority is at an end.”

As per Stroud’s Judicial Dictionary, 1986, V Edition, Volume 2, Pg.No.1064:

- 16 - “Where a Judge has made an order for a stay of execution which has been passed and entered, he is functus officio and neither he nor any other judge of equal jurisdiction has jurisdiction to vary the terms of such stay (Re.V.G.M. Holdings Ltd. [1941] 3 All E.R.417)

As per Capital’s Legal & Medical Dictionary, 2006, Volume 1, Pg.702: A person out of official duty regarding a particular person, case or item. Where a case is finally disposed of by the Court, the Court becomes functus officio regarding the said case and thereafter nothing can be heard by the Court relating to such case. As per Concise Law Dictionary, 3rd Edition, 2006, P. 482:

A term applied to something which once had a life and power, but which has become of no virtue whatsoever. Thus, when an agent has completed the business with which he is entrusted his agency is functus officio.

One who has fulfilled his office or is out of office, an authority who has performed the act authorized so that the authority is exhausted.

- 17 - As per Judicial Officers’ Law Lexicon, 2011, Volume 2, 2nd Edition, Pg. 1964:

One who has fulfilled his office or is out of office, an authority who has performed the act authorized so that the authority is exhausted.

The expression ‘functus officio’ means, having fulfilled the function, having discharged the duty, having discharged the office, or accomplished the purpose and therefore, of no further force or authority.

- 18 - judgment or order is “final” and cannot be altered, changed, varied or modified. It was also submitted that the Income Tax Tribunal is a tribunal constituted under the Act. It is not a “Court” having plenary powers, but a statutory tribunal functioning under the Act of 1961. It, therefore, cannot act outside or dehors the Act nor can exercise powers not expressly and specifically conferred by law. It is well settled that the power of review is not an inherent power. The right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by law. If there is no power of review, the order cannot be reviewed.

- 19 - review. But the question is as to at what stage an authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Edn., Vol. 2 pp. 1946-47) gives the following illustrative definition of the term 'functus officio' : "Thus a Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision." 28. We may first refer to the position with reference to civil courts. Order 20 of the Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-rule (1) provides that the Court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer [if the Judge is specially empowered (sic by the High Court) in this behalf]. The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced

- 20 - shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by section 152 or on review. Thus, where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to section 152 and power of review). The position is different with reference to quasi judicial authorities. While some quasi judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned. A quasi judicial authority will become functus officio only when its order is pronounced, or published/notified or

- 21 - communicated (put in the course of transmission) to the party concerned. When an order is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the Authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the Authority will become functus officio. The order dated 18.1.1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the Appointing Authority became functus officio when he signed the note dated 18.1.1995. 19. Further, the Hon’ble Supreme Court in the case of P.M.ABUBAKAR Vs. STATE OF KARNATAKA AND OTHERS reported in (2017) 1 SCC 302 held as under: 38. Taking any view of the matter, therefore, we must hold that the High Court committed manifest error in dismissing the writ petitions filed by the appellant-auction- purchaser challenging the decision of the Deputy Registrar (CS) dated 18-7-2009. The

- 22 - High Court ought to have allowed the writ petition as the Deputy Registrar had no jurisdiction to entertain appeal against the order of confirmation of sale issued under Section 89-A of the Act read with Rule 38 of the Rules; and also because, admittedly, the debtor failed to pay the awarded amount in spite of repeated opportunities given to him from time to time. Moreover, the debtor cannot succeed in the writ petition filed by the auction – purchaser and the Bank against the decision of the Deputy Registrar and get higher or further relief in such proceedings. Thus, the Division Bench having finally disposed of the writ appeal ought not to have entertained the application preferred by the debtor in the guise of clarification and to pass any order thereon – which would enure to the benefit of debtor who is in default, having become functus officio. 20. In view of the aforesaid dictionary meaning of ‘functus officio’ and the law declared by the Hon’ble Supreme Court stated supra, once the decree passed by

- 23 - the trial Court on 01.04.2017 has reached finality, the learned Judge, who passed the judgment and decree becomes functus officio and he cannot alter or direct any authorities to implement the decree and if somebody violated the decree passed by the trial Court, it is always open for the decree holder to protect his rights as per the decree in accordance with law. Unfortunately, in the present case, learned Judge proceeded to issue direction to the Joint Commissioner, BBMP, Byatarayanapura to issue katha in favour of the plaintiff in respect of the agricultural lands, for which the BBMP has no power. If somebody violates the decree, it is for the decree holder to implement the decree by initiating appropriate proceedings against the person who violates the decree passed in favour of the decree holder. Once the decree reached finality, the learned Judge who passed the judgment and decree becomes functus officio and absolutely the trial Judge, who passed the decree has no power to issue such

- 24 - directions. In a judgment and decree passed by the trial Court, utmost the trial Judge can correct any arithmetical/clerical errors as contemplated under the provisions of Sections 152 and 153 of the Code of Civil Procedure. Beyond that, he cannot issue any directions, that too in respect of agricultural lands directing the Joint Commissioner, BBMP to issue katha. Therefore, the impugned orders cannot be sustained. 21. Though the learned counsel appearing for the decree holder as well as the judgment debtor sought to justify the impugned orders contending that the petitioners have no locus standi to file writ petitions, according to the petitioners they are the owners of site Nos.34, 35 and 37 situated at Jakkur village, Yelahanka Hobli, Bengaluru North Taluk. It was pointed out by the learned counsel for the first respondent/decree holder that, no where in the sale deeds, the petitioners have referred to site numbers which are subject matter

- 25 - of the decree. If it is so, it is for the petitioners to protect their rights in respect of their site Nos.34, 35 and 37 respectively, before the appropriate competent authority/Court. The petitioners cannot maintain the present writ petitions. 22. The petitioners brought to the notice of the Court that after the judgment and decree is passed, the learned Judge who passed the impugned orders becomes functus officio and therefore, the impugned orders passed are without jurisdiction and hence, it is the duty of this Court to set right the same in order to maintain judicial discipline in the legal system. Even in the absence of the present petitions, once it is brought to the notice of this Court by the petitioners or respondents, it is the duty of this Court to exercise the powers under Article 227 of the Constitution of India to rectify the mistake committed by the learned Judge, who passed the impugned orders, which are totally without jurisdiction.

- 26 - 23. In view of the aforesaid reasons, the writ petitions are disposed of. The impugned orders passed by the trial Court dated 13.04.2017 and 17.07.2017 are quashed. Liberty is reserved to the decree holder to approach the appropriate Court or authority to protect her rights in terms of the judgment and decree passed by the trial Court. It is needless to observe that if the petitioners are claiming rights in respect of Site Nos.34, 35 and 37, which are not the subject matter of the judgment and decree, it is always open for them to approach the competent Court/authority to protect their rights if any in accordance with law. Registry is directed to send a copy of this order to the concerned learned Judge, who passed the impugned Orders, after he become functus officio. Copy of this order and copy of the explanation dated 23.11.2017 offered by the learned Judge be sent

- 27 - to the concerned Hon’ble Administrative Judge, to take appropriate action in accordance with law. The registry is directed to send copy of this order to all the Prl. District Judges in the State with a request to circulate the same among all the Judicial Officers who are handling the civil matters in their Units for proper adjudication.

SD/- JUDGE

KMV*