Karnataka High Court
Sudha Lakshman vs Sri L. Venkatesh on 26 June, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:22073
CRP No. 94 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO.94 OF 2020 (IO)
BETWEEN:
SUDHA LAKSHMAN
W/O LAKSHMANAGUPTA
AGED ABOUT 47 YEARS
R/AT MATRUSHREE NILAYA
NEAR OLD COURT ROAD
9TH WARD, BAGEPALLI
CHIKKABALLAPURA DISTRICT-561207
...PETITIONER
Digitally signed (BY SMT. S SUSHEELA, SR. ADVOCATE FOR
by SHARANYA T
SRI. SOMANATHA H, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA
AND:
1. SRI L VENKATESH
S/O. N LAKSHMANA GOWDA
AGED ABOUT 73 YEARS
R/AT NO. 582, 3RD BLOCK
HMT LAYOUT
VIDYARANYAPURA
BANGALORE 560097
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NC: 2023:KHC:22073
CRP No. 94 of 2020
2. SRI. CHANDRAHASA K
S/O K A KRISHNA
AGED ABOUT 70 YEARS
R/AT NO. 550, 8TH MAIN
3RD BLOCK, HMT LAYOUT
VIDYARANAYAPURA
BANGALORE 560097
3. THE COMMISSIONER OF BBMP
BRUHAT BANGALORE MAHANAGARA PALIKE
KITTURU RANI CHENNAMMA CIRCLE
BANGALORE 560002
4. ASSISTANT EXECUTIVE ENGINEER
BBMP
VIDYARANYAPURA WARD
BANGALORE 560097
...RESPONDENTS
(BY SRI B V RAVI, ADVOCATE FOR R1 & R2;
R3 AND R4 ARE SERVED)
THIS CRP IS FILED UNDER SEC.115 OF CPC, 1908
AGAINST THE ORDER DATED 27.11.2019 PASSED ON IA
NO.3 IN O.S.NO.3676/2019 ON THE FILE OF THE X ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE AND ETC.
THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:22073
CRP No. 94 of 2020
ORDER
This petition is filed challenging the order dated 27.11.2019 passed on I.A.No.3 in O.S.No.3676/2019 on the file X Additional City Civil and Sessions Judge, Bengaluru.
2. This petition is listed for admission. Heard the learned counsel appearing for the respective parties.
3. The main contention of the counsel for the revision petitioner is that there is no cause of action to file the suit. The counsel brought to notice of this Court to the prayer sought in the suit. The main contention is that when BBMP comes to the conclusion that there is a violation, an order has been passed under Section 321(3) of the Karnataka Municipal Corporation Act (for short 'KMC Act'). Being aggrieved by the same, an appeal was filed before the Karnataka Appellate Tribunal (KAT) and stay was granted and the matter is pending before the KAT. In the meanwhile, an application was filed by the plaintiffs to implead them as parties to the proceedings and the same -4- NC: 2023:KHC:22073 CRP No. 94 of 2020 was rejected and thereafter, the present suit was filed. The counsel would vehemently contend that when the matter is ceased before the KAT, the very suit filed by the plaintiffs is not maintainable. Hence, an application was filed under Order VII Rule 11 (a) and (d) of CPC contending that there is no cause of action and the suit is barred by law. Hence, the Trial Court ought not to have rejected the application.
4. Per contra, the learned counsel appearing for the respondents/plaintiffs would vehemently contend that the defendants have started construction in violation of the sanction plan without leaving any set bad and hence, the complaint was given and an order has been passed by BBMP and the same is also challenged and an application was also filed before the KAT and KAT dismissed the application making an observation that the plaintiffs are not necessary parties to decide the matter before the KAT. However, made an observation that the plaintiffs have got civil right in respect of the property involved and can -5- NC: 2023:KHC:22073 CRP No. 94 of 2020 approach the civil Court. Accordingly, the suit is filed before the Trial Court. When the right of the plaintiffs in respect of the property is affected, civil Court jurisdiction is invoked and the civil Court can entertain the suit and the suit cannot be dismissed at the threshold by invoking Order VII Rule 11(a) and (d) of CPC.
5. Heard the learned counsel appearing for the respective parties and also perused the material on record. While invoking Order VII Rule 11, the Court has to look into the averments of the plaint, not the defence of the defendants. Having read the contents of the plaint, in paragraphs 6 and 7, the plaintiffs pleaded with regard to the construction in violation of sanction plan and in terms of the sanction plan, construction of commercial complex in the basement of the suit schedule property provided with six feet set back in eastern side as well as northern side of the site No.581 and 550 plaintiffs' property. However, defendant No.3 provided with only three feet set back clearance on eastern side and northern side. It is -6- NC: 2023:KHC:22073 CRP No. 94 of 2020 further contended that basement roof projected continuous external floor of about three feet width is built around the building on three sides i.e., north, east and south sides covering the set back width only three feet. It is also mentioned that at the northern side of the construction two RCC platform measuring approximately 30 x 3 feet have been constructed covering the set back to provide the support on landing for the steps. Hence, the clear violation is stated in paragraphs 6 and 7 of the plaint. Hence, cause of action is stated in the plaint at paragraph 15 with regard to the filing of the complaint dated 01.06.2018 and also with regard to deviation of construction of a commercial complex and in paragraph 17 cause of action for the suit is stated as the complaint was given on 01.06.2018 and an order passed by KAT dated 05.02.2019.
6. Having considered that the complaint was given on 01.06.2018 and no dispute with regard to filing of the complaint before the BBMP and also the order passed by -7- NC: 2023:KHC:22073 CRP No. 94 of 2020 KAT and while rejecting the application filed by the plaintiffs, KAT assigned the reason that they are not necessary parties before the KAT and they are not entitled to participate in the appeal. However, they are at liberty to approach civil Court for protecting their civil rights, if any infringed by the appellant herein. The very observations is clear that though an application was rejected, liberty is given to approach the civil Court and accordingly, by mentioning the cause of action in paragraph 17, the suit was filed.
7. Apart from that it is important to note that when the construction is started in violation of sanction plan and the right of the property of the plaintiffs should be protected and the civil Court is not barred by any law. The very contention of the counsel for the revision petitioner is that an order already been passed under Section 321 of KMC Act and the same is challenged before the KAT and only if the order has not been implemented, then only the cause of action arises cannot be accepted -8- NC: 2023:KHC:22073 CRP No. 94 of 2020 when the civil right in respect of the property of the plaintiffs is affected. When construction is started in violation of sanction plan, the affected parties are the plaintiffs and alleged that no set back is left by the defendants while constructing as against the sanction plan hence, the property right of the plaintiff would be affected. Hence, the contention of the learned counsel for the revision petitioner is that only the cause of action arises when there is non-implementation of the order by the BBMP cannot be accepted and the plaint cannot be rejected at the threshold invoking Order VII Rule 11 (a) and (d) of CPC and there is a cause of action to file the suit by the plaintiffs and the suit is not barred by law as contended by the counsel for the petitioner. Hence, I do not find any error in the order of the Trial Court while rejecting the application. In paragraph 7, the Trial Court taking note of the contentions of the parties, it is observed that when the right of the plaintiffs with regard to the property is infringed, the civil Court which is competent to grant the remedies to the plaintiffs in case they are able to -9- NC: 2023:KHC:22073 CRP No. 94 of 2020 prove the allegations against defendant No.3. The relief sought in the plaint is to grant mandatory injunction against defendant No.3 for deviation and violation of building construction as per the sanctioned plan and also sought an order with a direction to defendant No.2 to implement the order passed under Section 321(3) of KMC Act. Hence, I do not find any force in the contention of the counsel for the revision petitioner to reverse the finding of the Trial Court.
8. In view of the discussions made above, I pass the following:
ORDER The revision petition is dismissed.
Sd/-
JUDGE SN