Karnataka High Court
Smt Prabha Ravishankar vs The Commissioner on 27 March, 2013
Author: B.Manohar
Bench: B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
R.F.A.No.1944 /2011
BETWEEN:
SMT PRABHA RAVISHANKAR
W/O RAVISHANKAR
AGED ABOUT 32 YEARS
R/A NO.7, ASWATHALAKSHMI CLOTH STORES
BANASWADI ROAD, JAIBHARATHNAGAR
BANGALORE-43 ...APPELLANT
(BY G.S. SRIKANTESWARAN, ADV. FOR SRI. N.S. SATISH
CHANDRA ADV.)
AND:
THE COMMISSIONER
CORPORATION OF CITY BANGALORE
NOW KNOWN AS BRUHAT
BANGALORE MAHANAGARA PALIKE
BANGALORE-560 001. ... RESPONDENT
(BY SRI N.R. JAGADEESHWARA, ADV.)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE ORDERS DATED 10.11.2011 PASSED IN
O.S.27189/2007 ON THE FILE OF THE XXVIII-ADDL. CITY
CIVIL JUDGE, MAYO HALL, BANGALORE, AFFIRMATIVELY
ANSWERING IN THE ISSUE NO.3 AND CONSEQUENTLY
DISMISSING THE SUIT OF PLAINTIFF AS NOT
MAINTAINABLE.
2
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING
JUDGMENT
The appellant is the plaintiff in O.S.No.27189/2007. Being aggrieved by the order dated 10.11.2011 made on issue No.3, dismissing the suit as not maintainable, the appellant has filed this appeal.
2. The facts of the case are as follows:
The plaintiff filed the suit for declaration declaring that defendant has no authority to demolish the building constructed in the suit schedule property, without invoking the provisions under KMC Act and also permanent injunction restraining the defendant from demolishing the construction put up by the plaintiff.
In the plaint, the plaintiff has contended that after obtaining the necessary permission and sanctioned plan, ground, first and second floor has been constructed by him 3 in accordance with the sanctioned plan. There is no deviation in the construction of the building. In spite of the same, the defendant tried to demolish the building without following the procedure prescribed under the KMC Act and sought for above relief.
3. The defendant entered appearance and filed an application under Order VII Rule 11(a) of CPC for rejection of the plaint contending that the suit filed by the plaintiff does not disclose the cause of action. Further, the plaintiff is putting up construction in violation of the sanctioned plan and the second floor has been constructed without obtaining the permission. The provisional notice under Section 321(1) and confirmation order under Section 321(3) of KMC Act has been passed. The plaintiff has got remedy under Section 443(a) of KMC Act, without invoking the said provisions, the above suit has been filed. The suit itself is not maintainable.
4
4. The trial Court by its order dated 24.06.2011, rejected the said application filed under Order VII Rule 11(a), on the ground that no document has been produced to show that the notice under Section 321(1) of KMC Act as well as the confirmation order under Section 321(3) of KMC Act has been passed. Thereafter, the defendant filed the written statement. The trial Court taking note of para 5 of the written statement, framed the preliminary issue No.3, which reads as under:
"Whether the defendant proves that the suit is not maintainable as contended in para 5 of written statement?
On the basis of the preliminary issue, trial Court heard the arguments of the learned counsel appearing for both the parties and dismissed the suit as not maintainable, as per the order dated 10.11.2011 made on issue No.3. Being aggrieved by the same, the plaintiff filed this appeal.
5. Sri N.S. Satish Chandra, learned counsel appearing for the appellant has contended that the trial 5 Court after having rejected the application filed under Order VII Rule 11(a) on 24.06.2011, it ought not to have framed the preliminary issue No.3 on the basis of para 5 of the written statement. In the written statement, the date of issuance of provisional notice as well as the confirmation order has not been mentioned and whether the Provisional notice or confirmation order was served on the plaintiff was also not mentioned. In view of that, he has filed the suit seeking for declaration and injunction. The trial Court without considering the earlier order dated 24.06.2011, has passed the present order which is contrary to law.
6. Sri.N.R.Jagadeeswhwar, learned counsel appearing for the respondent supports the order of the trial Court and also contended that in the written statement the date of issuance of provisional notice under Section 321(1) and confirmation order passed under Section 321(3) of KMC Act is not mentioned. Since the plaintiff had put up a construction in violation of the sanctioned plan, the plan sanctioned for the construction of the second floor on 6 08.10.2007 by the corporation has already been withdrawn. The trial Court taking note of this aspect of the matter, passed the order on preliminary issue holding that suit filed by the plaintiff is not maintainable. There is no valid ground to interfere with the same and sought for the dismissal of the appeal.
7. After hearing the learned counsel appearing for both the parties, the only point that arise for consideration in this appeal is:
Whether the order passed by the trial Court dismissing the suit as not maintainable without any trial or looking into the record is in accordance with law?
8. The records clearly disclose that on the apprehension of demolition of the building without issuing notice under KMC Act, the plaintiff filed the suit seeking for declaration and also injunction restraining the defendant from demolishing the building. The case pleaded by the plaintiff is that, no provisional notice under Section 321(1) 7 or confirmation order under Section 321(3) of KMC Act was not served on the plaintiff, without following the procedure under the law, the respondent-corporation has taken steps for demolishing the building. On that apprehension, suit has been filed. The respondent entered appearance and filed an application under Order VII Rule 11(a) which came to be rejected by the trial Court. Thereafter, the written statement was filed. In para 5 of the written statement, an averment has been made that the provisional notice as required under Section 321(1) and confirmation order under Section 321(3) of KMC Act have been issued. However, in para 5 the date of issuance of the provisional order as well as the confirmation order has not been mentioned. No document has been produced along with the written statement. The trial Court taking note of para 5 of the written statement, framed the preliminary issue regarding maintainability of the suit. No trial has been conducted on the preliminary issue. The corporation has also not produced any documents before the trial Court with regard to issuance of the provisional order as well as the confirmation of order. In the absence of the same, the trial 8 Court ought not to have dismissed the suit as not maintainable. As stated earlier on the apprehension of high handed action on the part of the corporation, demolishing the building without following the procedure prescribed under the provisions of law, the suit has been filed. Mere assertion on the part of the defendant, without producing any document with regard to issuance of notice under Section 321(1) and confirmation order under Section 321(3) the trial Court cannot proceed to pass the order, dismissing the suit as not maintainable. Hence, the order passed by the trial Court is contrary to law. The trial Court has to reconsider the matter afresh and pass appropriate orders in accordance with law. Accordingly, I pass the following:
ORDER
1. The appeal is hereby allowed.
2. The order dated 10.11.2011 made on issue No.3, is set aside.9
3. The matter is remitted back to the trial Court to reconsider and pass afresh orders in accordance with law.
Sd/-
JUDGE Rms