Karnataka High Court
The Commissioner vs Smt. M. G. Geetha on 3 March, 2023
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CRP No. 44 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO. 44 OF 2023
BETWEEN:
THE COMMISSIONER,
MYSURU CITY CORPORATION,
SAYYAJI ROAD, MYSURU.
...PETITIONER
(BY SMTGEETHA DEVI M.P, ADVOCATE)
AND:
1. SMT. M. G. GEETHA,
AGED ABOUT 56 YEARS,
WIFE OF M.R. KUMARASWAMY,
RESIDING AT NO. 1299/1,
CH 23/1, 3RD CROSS,
KRISHNAMURTHYPURAM,
MYSURU - 4.
REPRESENTED BY P.A. HOLDER,
SRI. M. R. KUMARASWAMY,
Digitally signed AGED ABOUT 65 YEARS,
by SUMA SON OF LATE M. L. RAJU,
Location: HIGH NO. 1299/1, CH 23/1, 3RD CROSS,
COURT OF
KARNATAKA KRISHNAMURTHY PURAM, MYSURU - 4.
2. THE DEPUTY COMMISSIONER,
MYSURU DISTRICT, MYSURU.
3. THE TAHSILDAR,
MYSURU TALUK,
MINI VIDHANA SOUDHA,
NAZARBAD, MYSURU.
RESPONDENTS
(BY SRI. V. B. SHIVA KUMAR, ADVOCATE FOR R1
VIDE ORDER DATED 21.02.2023,
NOTICE TO R2 AND R3 ARE DISPENSED WITH)
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CRP No. 44 of 2023
THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST
THE ORDER DATED 12.12.2022 PASSED ON IA No.8 IN OS
No.10/2022 ON THE FILE OF THE XIII ADDITIONAL CIVIL JUDGE
AND JMFC, MYSURU, DISMISSING THE IA No.8 FILED UNDER ORDER
VII RULE 11 (d) R/W SEC.151 OF CPC FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner has filed this petition challenging the correctness of the order dated 12.12.2022 passed by XIII Additional Civil Judge and JMFC, Mysuru (Henceforth, referred to as 'Trial Court' for short) in OS.No.10/2022 in terms of which an application filed by it under order VII Rule 11(d) read with Section 151 of CPC was rejected.
2. A suit for perpetual injunction was filed in OS.No.10/2022 to restrain the defendants, their officials, agents or any person acting on the orders of the defendants permanently from interfering with the peaceful possession and enjoyment of the suit schedule properties. An application numbered as I.A.No.1 was filed seeking permission of the Court to file the suit by dispensing notice to the defendants. The Trial Court in terms of the order dated 04.01.2022, permitted the -3- CRP No. 44 of 2023 plaintiff to file the suit by dispensing notice to the defendants, subject to objection that may be filed by the defendants after their appearance. The defendants on being served with the notice entered appearance and filed an application under order VII Rule 11(d) read with Section 151 of CPC contending that the requirement of Section 482 of the Karnataka Municipal Corporation Act, 1976 (henceforth referred to as 'KMC' Act, 1976) is compulsory and there is no escape for the plaintiff from complying the said requirement. It was contended that since the defendant had not issued the mandatory notice under Section 482 of KMC Act, 1976, the suit could not have been filed.
3. The Trial Court after considering the fact that an application under I.A.No.1 was filed seeking permission to file the suit by dispensing the requirement of notice under Section 80(1) of CPC, held that the application for rejection of the plaint was not maintainable and consequently rejected it by the order impugned herein. Being aggrieved by the same, the present petition is filed.
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4. Learned counsel for the petitioner submits that the requirement under Section 482 of KMC Act, 1976 is mandatory and without issuing two months notice, the suit could not have been filed. Therefore, she submits that the Trial Court committed an error in rejecting the application.
5. Per contra the learned counsel for the plaintiff/respondent submits that the suit was for immediate/ urgent relief of perpetual injunction where interlocutory orders were sought for. He submits that having regard to the urgency pleaded in the plaint, the Court had permitted the plaintiff to file the suit by dispensing notice as prescribed under Section 482 of KMC Act, 1976 and issued notice on I.A.No.1/2022 to the defendants. It was therefore open for the defendants to file appropriate objections before the Trial Court to I.A.No.1/2022 and contest the application and demonstrate that the urgency pleaded by the plaintiff did not warrant dispensation of notice under Section 482(2) of KMC Act, 1976. He submitted that since the Court had exercised it discretion in permitting the suit to be filed, an application under order VII Rule 11(d) to reject the plaint is not maintainable.
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6. I have considered the submissions made by the learned counsel for the defendant/petitioner as well as the learned counsel for the respondent/plaintiff.
7. A suit against a Municipal Corporation can be filed only after complying the requirement of Section 482 of the KMC Act, 1976. However, in cases where the plaintiff seeks for an urgent and an immediate interlocutory order, he is entitled to file appropriate application under Section 482(2) of KMC Act, 1976, seeking permission of the Court to present the suit by dispensing the requirement of issuing statutory notice under Section 482(1) of the Act. In the present case, the plaintiff had indeed filed an application, though mentioning a wrong provision and sought for permission to file the suit by dispensing statutory notice under Section 80(1) of CPC. Section 482(2) of KMC Act, 1976 mandates that the Court may issue notice to the defendants on such application after receiving the plaint, but however shall not grant any interim order affecting the interest of the defendants.
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8. In the present case, the application seeking permission to file the suit was indeed filed by the plaintiff and the Trial Court had permitted the plaintiff to file the suit, however subject to the objection that may be raised by the defendants after the notice of suit was served upon them. Therefore, the Trial Court had exercised the power under Section 482(2) of KMC Act, 1976. It was therefore open for the defendants to enter appearance before the Trial Court and file appropriate objections to I.A.No.1/2022 and contend that there was no urgency warranting grant of permission to file the suit by dispensing the notice under Section 482(1) of KMC Act, 1976. The defendants therefore cannot maintain an application under Order VII Rule 11(d) read with Section 151 of CPC to reject the plaint.
In that view of the matter, the Trial Court was justified in rejecting the application. There is no merit in the case and the same is dismissed.
It is however open for the defendants to contest I.A.No.1/2022 in accordance with law and it is open for the -7- CRP No. 44 of 2023 Court to consider the case of the plaintiff and take appropriate decision whether the permission granted to file the suit was correct or not.
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JUDGE PK List No.: 1 Sl No.: 25