Bangalore District Court
Sri T.K.Nagaraja vs The Commissioner on 5 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 5th day of January 2015
PLAINTIFF: Sri T.K.Nagaraja,
S/o Sri T.S.Komaraiah,
Aged about 74 years,
Residing at No.1122,
19th Main Road, J.P.Nagara,
II Phase, Bangalore-560 078.
[By Sri NMR, Advocate]
/v e r s u s/
DEFENDANT: The Commissioner,
Bruhath Bangalore Mahanagara Palike;
N.R.Square, Bangalore.
[By Sri CRB, Advocate]
The defendant has filed the application under
Order VII Rule 11 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
defendant for the relief of perpetual injunction
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restraining defendant from demolishing any portion of
the suit schedule property. The suit filed by the
plaintiff is not maintainable and it is barred under the
provisions of Karnataka Municipal Corporation Act
1976. Plaintiff has got remedy to file appeal u/s 443-A
of KMC Act against the order passed u/s 321(3) of the
KMC Act. This court has no jurisdiction to entertain
the suit. Therefore, the plaint is liable to be rejected.
Hence, defendant prayed to reject the plaint.
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 is 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.
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Therefore, the application filed by the defendants
under Order VII Rule 11 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
defendant 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 defendant 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 (d) of C.P.C.
Therefore, the application filed by the defendant
BBMP is liable to be dismissed with costs. Hence,
advocate for plaintiff prayed to dismiss the application
with costs. He has cited the following decisions in
support of his contentions:
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1. Order passed by the Hon'ble High Court of
Karnataka in RFA No.1922/2010;
2. Order passed by the Hon'ble High Court of
Karnataka in RFA No. 1944/2011;
3. ILR 1991 KAR 1887, Corporation of the City
of Bangalore vs. Yashodamma;
4. AIR 1982 KARNATAKA 23, Commissioner,
Corporation of the City of Bangalore vs. M/s
Kapoorchand Brothers, Bangalore etc.;
5. ILR 2008 KAR 4987, B.Mruthyunjayappa
and Another vs. Gurumurthy and others;
6. ILR 2008 KAR 5009, Prabha Mathur and
Another Vs. Pramod Aggarwal and others;
7. ILR 2008 KAR 1523, Sri K.P.Subramanya
vs. Smt. B.Gowramma and others;
8. AIR 2000 SUPREME COURT 2220, State of
Andhra Pradesh, Appellant vs. Manjeti Laxmi
Kantha Rao (D) by L.Rs and others;
9. (2002) 5 Supreme Court Cases 510, ITI Ltd.,
vs. Siemens Public Communications Network
Ltd.,
10. AIR 2003 SUPREME COURT 2508,
Ramesh Chand Ardawatiya vs. Anil
Panjwani.
11. (2003) 6 Supreme Court Cases 151,
Sahebgouda (Dead) by L.Rs and others vs.
Ogeppa and others;
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12. AIR 2010 SUPREME COURT 2897, Ramesh
Gobindram (deceased by L.Rs.) vs. Sugra
Humayun Mirza Wakf;
13. Order passed by the Hon'ble High Court of
Karnataka in Writ Petition No.4906/2006
(LB-BMP);
14. ILR 2008 KAR 3034, R.Gopalakrishna vs.
The Karnataka State Financial Corporation
and Another.
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:
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8. POINT NO.1 AND 2: Plaintiff has filed the
suit against the defendant BBMP for the relief of
perpetual injunction to restrain him from demolishing
any structure on the suit schedule property.
9. The case of the plaintiff in brief is that, he
is the owner and in the possession of suit schedule
property i.e., Residential apartment building on the
property bearing Nos. 10 and 11, in katha No.87,
situated at Chikka Kallasandra village, Uttarahally
Hobli, Bangalore South Taluk, measuring east to west
62 feet and north to south 57+60/2 feet morefully
described in the plaint. He has acquired the same
through registered sale deed dated 16/3/1994. 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 defendant's
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
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the relief of perpetual injunction and prayed to decree
the suit.
10. The defendant BBMP has filed application
under Order VII Rule 11 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.
11. The defendant BBMP has produced the
copy of notice and provisional order passed u/s
321(1) and 321(2) of KMC Act in respect of
construction of building made by the plaintiff and
copy of confirmation order passed u/s 321(3) of KMC
Act along with written statement. From these
documents, 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,
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the plaintiff cannot say that, BBMP has not passed
any such orders in this regard.
12. 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(1) (2) & (3) of KMC Act are 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 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.
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13. 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.
14. 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
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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.
15. 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
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.
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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."
16. 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
City Civil Court having no jurisdiction,
suits have remained pending in the City
Civil Court since the year 1998."
17. 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
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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. The decisions cited by
the advocate for plaintiff will not assist to the case of
the plaintiff. 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.
18. 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 defendant
Commissioner, 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.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 5th day of January 2015]. 14 O.S.6541/2013 [DESHPANDE, G.S.] C/c XXVII Additional City Civil Judge, BANGALORE.
15 O.S.6541/2013 Order on IA pronounced in the Open Court vide separate order.... The application filed by the defendant Commissioner, 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. 16 O.S.6541/2013 Draw decree accordingly.
C/c XXVII Additional City Civil Judge, BANGALORE.
I 17 O.S.9229/2013 18 O.S.9229/2013 fff