Bangalore District Court
Sri K.Gopinath vs The Commissioner on 2 January, 2015
PRESENT: SRI Deshpande, G.S, B.Com., LLM
C/c XXVII Additional City Civil Judge
and Presiding Officer, FTC-V
Dated this the 2nd day January 2015
PLAINTIFF: Sri K.Gopinath,
Aged about 40 years,
S/o Late K.Kannan,
Residing at No.768/19,
3rd Main, Rajajinagara
4th Block, Bangalore-560 010.
[By Sri MAB, Advocate]
/v e r s u s/
DEFENDANTS: 1. The Commissioner,
Bruhath Bangalore Mahanagara Palike;
Bangalore.
2. The Assistant Executive Engineer,
Ramamandira Sub Division,
Bruhath Bangalore Mahanagara Palike;
Bangalore.
3. The Assistant Engineer,
Ramamandira Sub Division,
Bruhath Bangalore Mahanagara Palike;
Bangalore.
[By Sri Subhash, Advocate]
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The defendants have filed the application under
Order VII Rule 11 (a) and (d) of C.P.C to reject the
plaint as suit is not maintainable.
2. In the affidavit filed along with IA, it is
stated that, the plaintiff has filed the suit against the
defendants for the relief of perpetual injunction to
restrain them permanently from demolishing any
portion of the suit schedule property.
The plaintiff has obtained sanction plan to
construct the building in the suit property as per
L.P.No. ADCOM/WST/951/11-12 dated 4/2/2012.
He has constructed the building by deviating sanction
plan. Notice u/s 321(1) of Karnataka Municipal
Corporation Act 1976 was issued and provisional
order was passed u/s 321(2) of the Act. Plaintiff was
directed to correct the deviations. Since he has not
complied the same, confirmation order u/s 321(3) of
the Act was passed. Suppressing this fact, the
plaintiff has filed the present suit. If the plaintiff is
aggrieved by the order passed u/s 321(3) of the Act,
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he has got remedy to file appeal before the Karnataka
Appellate Tribunal u/s 443-A of the KMC Act. The
plaintiff by way of filing the suit cannot prevent the
officials of the BBMP from discharging their duties.
The present suit is not maintainable. The plaint is
liable to be rejected. Hence, it is prayed to allow the
application.
3. Plaintiff has filed his detailed objections to
this IA contending that, said notice and provisional
order and confirmation order are not served on the
plaintiff. Unless this notice and provisional order and
confirmation order are served on the plaintiff, he
cannot file appeal before the Karnataka Appellate
Tribunal u/s 443-A of KMC Act. Since the officials of
defendants tried to demolish the building
highhandedly and without due process of law, the
plaintiff has filed the present suit for the relief of
perpetual injunction. Same is maintainable.
Therefore, the application filed by the defendants
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under Order VII Rule 11(a) and (d) of C.P.C is liable to
be dismissed with costs.
4. Heard the arguments of both sides on the
above said application. The advocate for the
defendants BBMP submitted that, the plaintiff has
constructed his building in the suit property in
violation of sanction plan. Notice under Section 321(1)
(2) of KMC Act is issued to the plaintiff by passing
provisional order. He has not complied the same and
therefore the confirmation order was passed under
Section 321(3) of KMC Act. If the plaintiff is aggrieved
by the said order, he has got remedy to file appeal
before the Karnataka Appellate Tribunal under
Section 443-A of KMC Act. The plaintiff cannot file the
suit of present nature and prevent the officials of
BBMP from discharging their duties. Therefore, this
court has no jurisdiction to entertain the suit as per
Section 9 of C.P.C. and its cognizance is impliedly
barred. Therefore, the advocate for defendants BBMP
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prayed to allow the application and to reject the
plaint.
5. On the other hand, the advocate for the
plaintiff submitted that, if BBMP without issuing
notice and passing provisional order and confirmation
order threatened to demolish the building, plaintiff
certainly has got remedy to file a suit for perpetual
injunction against BBMP. If notice, provisional order
and confirmation order are not served on the plaintiff,
the plaintiff has no remedy to file appeal before the
Karnataka Appellate Tribunal under Section 443-A of
KMC Act. Since there is a cause of action to file the
suit and the plaintiff is entitled to file the suit against
the BBMP under General Law, plaint cannot be
rejected under order VII Rule 11 (a) & (d) of C.P.C.
Therefore, the application filed by the defendants
BBMP is liable to be dismissed with costs. Hence,
advocate for plaintiff prayed to dismiss the application
with costs.
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6. In view of the rival contentions, following
points those arise for my consideration are as under:
1. Whether the suit in the present
form is maintainable?
2. Whether the plaint is liable to be
rejected under Order VII Rule 11
(d) of CPC?
3. What order?
7. My answer to the above points is as under:
Point No.1 : In the negative;
Point No.2 : In the affirmative;
Point No.3 : As per final order;
for the following:
8. POINT NO.1 AND 2: Plaintiff has filed the
suit against the defendants BBMP for the relief of
perpetual injunction to restrain them from
demolishing any structure on the suit schedule
property.
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9. The case of the plaintiff in brief is that, he
is owner and in the possession of suit schedule
property i.e., Schedule 'A' 'B' properties morefully
described in the plaint. He has acquired the same
through registered sale deeds dated 30/3/2011 and
26/8/2011. His name is mutated in the BBMP
records and he is paying taxes regularly. After
obtaining the sanction plan building is constructed in
the suit property in accordance with sanction plan.
The defendants officials came near the suit property
and threatened to demolish the portion of the
structure highhandedly Therefore, the plaintiff has
filed the present suit for the relief of perpetual
injunction and prayed to decree the suit.
10. The defendants BBMP have filed their
detailed written statement contending that, the
plaintiff has constructed the building by violating
sanction plan. Notice u/s 321(1) (2) of KMC Act and
provisional order were issued to the plaintiff calling
upon him to give explanation and to rectify the
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deviations in construction of the building. Since the
plaintiff has not complied the same, confirmation
order was passed u/s 321(3) of KMC Act. All these
aspects are within the knowledge of plaintiff. Even
then by suppressing the true facts, plaintiff has filed
the present suit. Suit filed by the plaintiff for bare
injunction without declaration is not maintainable. If
the plaintiff is aggrieved by the order passed u/s
321(3) of KMC Act, he has got a remedy to file appeal
before the Karnataka Appellate Tribunal u/s 443-A of
KMC Act. Therefore, the suit filed by the plaintiff is
not maintainable. Hence, it is prayed to dismiss the
suit.
11. The defendants BBMP have filed
application under Order VII Rule 11 (a) and (d) r/w
Section 151 of C.P.C to reject the plaint as this Court
as no jurisdiction to try the suit. The plaintiff has got
remedy to file appeal u/s 443-A of KMC Act before the
Karnataka Appellate Tribunal against the order
passed u/s 321(3) of KMC Act.
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12. The defendant BBMP has produced the
copy of confirmation order passed u/s 321(3) of KMC
Act. From this document, it is clear that, the
provisional order and confirmation order are passed
u/s 321(1) (2) and (3) of KMC Act in respect of
construction of building made by plaintiff deviating
the sanction plan. Now, the plaintiff cannot say that,
BBMP has not passed any such orders in this regard.
13. The plaintiff has filed the present suit for
bare injunction only. He has not filed the present suit
for the relief of declaration to declare that, the order
passed u/s 321(3) of KMC Act is nullity in the eye of
law and the said order is without jurisdiction and
outside the provisions of KMC Act. If the plaintiff has
not filed the suit for the said relief, the present suit for
bare injunction is not maintainable. The plaintiff by
way of filing the present suit for bare injunction is
preventing the public servants of BBMP from
discharging their duties as per Sections 321(1) (2) &
(3) of KMC Act. If BBMP has passed such orders
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without following due procedures, plaintiff has got
remedy to file the appeal u/s 443-A of KMC Act before
the Karnataka Appellate Tribunal. These orders are
passed by the competent authority as per the
provisions of KMC Act.
14. The Hon'ble Supreme Court of India in the
decision (three bench) reported in 1993 (3) SCC 161,
Shivakumar Chadha vs. Municipal Corporation of
Delhi and others held that,
"The Court should not ordinarily entertain
a suit in connection with the proceedings
initiated for demolition, by the
Commissioner, in terms of Section 343(1)
of the Corporation Act. The court should
direct the persons aggrieved to pursue the
remedy before the appellate tribunal and
then before the administrator in
accordance with the provisions of the said
Act. "
The principle laid down in this decision is aptly
applicable to the case on hand.
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15. Since the plaintiffs have got adequate,
effective and alternative remedy to file appeal u/s
443-A of KMC Act against the confirmation order
passed u/s 321(3) of KMC Act before the Karnataka
Appellate Tribunal, this Court has no jurisdiction to
entertain the suit of present nature and cognizance of
entertaining the suit is impliedly barred u/s 9 of
C.P.C. Hence, the plaint is liable to be rejected under
Order VII Rule 11(d) of C.P.C.
16. The Hon'ble Supreme Court of India in the
decision reported in AIR 1977 SC 2421,
T. Aravindanandam Vs. T.V.Satyapal and another
held as under:
" If on a meaningful - not formal - reading
of the plaint it is manifestly vexatious, and
meritless in the sense of not disclosing a
clear right to sue, the trial Court should
exercise its power under O.7, R.11 C.P.C
taking care to see that the ground
mentioned therein is fulfilled. The trial
Courts should insist imperatively on
examining the party at the first hearing so
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that bogus litigations can be shot down at
the earliest stage. The Penal Code is also
resourceful enough to meet such men,
(Ch.XI) and must be triggered against
them.
If the trial Court is satisfied that the
litigation was inspired by vexatious
motives and altogether groundless it
should take deterrent action under S. 35A.
The counsel, as an officer of justice,
can also contribute to the cause of justice
by screening wholly fraudulent and
frivolous litigation and by not collaborating
in shady actions."
17. Our Hon'ble High Court in the Writ Petition
No. 45881/2012 [GM- RES], dated 14/11/2014 in
the case of Malleshwaram Residents Welfare
Association ® vs. Ubhaya Vedantha Pravarthana
Sabha and others observed as under:
"However, at this stage, there is no dispute
about the assertion that there are nearly
606 cases which are pending before the
City Civil Court at Bangaluru and in spite
of the suits being not maintainable and the
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City Civil Court having no jurisdiction,
suits have remained pending in the City
Civil Court since the year 1998."
18. In view of the decision of Hon'ble Supreme
Court in Shivakumar Chadha case stated above, the
plaintiff has got only remedy to file appeal u/s 443-A
of KMC Act against the order passed u/s 321(3) of
KMC Act, and he cannot file the suit of present
nature contending that, copy of said notice and orders
were not served on him, and as such he has got
remedy to file the present suit. Since the suit filed by
the plaintiff in the present form is not maintainable,
the plaint is liable to be rejected under Order VII Rule
11 (d) of C.P.C. Hence, I answer the points No.1 and 2
accordingly.
19. POINT NO.3: In view of above discussions
and my findings to the points 1 & 2, I proceed to pass
the following:
The application filed by the
defendants BBMP under Order VII
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Rule 11(d) read with Section 151 of
C.P.C is allowed. Plaint is rejected.
No order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 2nd January 2015].
[DESHPANDE, G.S.] C/c XXVII Additional City Civil Judge, BANGALORE.
15 O.S.8506/2014 Order on IA pronounced in the Open Court vide separate order.... The application filed by the defendants BBMP under Order VII Rule 11(d) read with Section 151 of C.P.C is allowed. Plaint is rejected.
No order as to costs.
Draw decree accordingly. 16 O.S.8506/2014 C/c XXVII Additional City Civil Judge, BANGALORE.
17 O.S.8506/2014 In view of the direction issued by the Hon'ble High Court in W.P.No. 45881/2012 dated 14/11/2014, the case is advanced to 15/12/2014. Issue court notices to both sides and their advocates and call on 15/12/2014 C/c XXVII ACCJ, B'lore I 18 O.S.9229/2013 19 O.S.9229/2013 fff