Bangalore District Court
Cdr. V.Joshua vs M/S Jal Vayu Vihar Apartments on 18 November, 2017
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 18th Day of November, 2017
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 9243/2006
Plaintiff/s : 1. Cdr. V.Joshua
S/o V.Kanakaiah
Aged about 60 years,
R/at No.189, 190, Jal Vayu Vihar,
Bengaluru - 43.
2. Mrs. Esther Rani Joshua
W/o Cdr. V.Joshua
Aged about 51 years
R/at No.189, 190, Jal Vayu Vihar,
Bengaluru - 43.
3. Mrs. Nilima Joseph
W/o Cdr. V.Joshua
Aged about 31 years
R/at No.189, 190, Jal Vayu Vihar,
Bengaluru - 43.
4. Mr. Aashish Joshua
S/o Cdr. V.Joshua
Aged about 29 years
R/at No.189, 190, Jal Vayu Vihar,
Bengaluru - 43.
[By Sri. G.Krishnamurthy, Adv.]
-Vs-
Defendant/s : M/s Jal Vayu Vihar Apartments
Owners' Association [JVVAOA],
Kammanahalli Main Road,
Bengaluru - 43.
2 OS.No.9243/2006
Rep. by its President
Air Mshl. [Retd.] Narayan Menon]
[By Sri. J.K., Adv.]
Date of institution of the suit 21.10.2006
Nature of the suit Injunction
Date of commencement of 01.10.2011
recording the evidence
Date on which the judgment 18.11.2017
was pronounced
Total duration Years Months Days
11 00 28
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
*********
JUDGMENT
This is a suit for permanent injunction
2. The case of the plaintiffs is that, the plaintiff No.1 to 3 have purchased the property bearing Apartment no.190 FF from their vendors, M/s The Air Force Naval Housing Board through sale deed dated 7.10.2007 and plaintiff No.1, 2 and 4 have purchased the property bearing Apartment No.189 GF from the other vendors through another sale deed dared 27.7.2004. The defendant is an association with the name and style 'Jal Vayu Vihar Apartment Owners' Association [JVVAOA]' and the plaintiffs are the members of 3 OS.No.9243/2006 the defendant association. The plaintiffs in order to repair the staircase from the first floor to second floor and to put up a stair case from the ground floor to the first floor for the easy access of the servant quarters and to protect the said structure from rain and shine, the 1st plaintiff came up with certain maintenance cum repair work and submitted an application for obtaining the work order to the defendant association and the defendant association acknowledged the same through its letter dated 23.9.2006. The 1st plaintiff has issued a suitable reply to the defendant association through his letter dated 26.9.2006 informing the defendant association that no structural change is involved in the repair cum maintenance work and the carried out work is for the purpose of stability of the building and support for the existing structure only which have become absolutely essential for the proper upkeep of the building. The defendant Association, again through their letter dated 28.9.2006 caused inconvenience to the plaintiffs which is evident from the contents of the said letter. The defendant association through its letter dated 4.10.2006 advised the plaintiffs to refer the matter to Bangalore Mahanagara Palike and in response to such instructions from the defendant 4 OS.No.9243/2006 association, the 1st plaintiff wrote a letter dated 10.10.2006 to the jurisdictional Engineer to Bangalore Mahanagara Palike enclosing the plan with the proposed maintenance and preventive measure to be undertaken by the plaintiffs. The said letter was duly served on the Bangalore Mahanagara Polike and the plaintiffs have obtained the endorsement of the Bangalore Mahanagara Palike thereon. The 1st plaintiff again through his letter dated 10.10.2006 sought permission from the defendant association for carrying out the maintenance work. Again on 13.10.2006 the 1st plaintiff wrote the President of the defendant association highlighting how unreasonable and discriminatory the attitude of the defendant association and its office bearers. When the matter stood like thus, the 2nd plaintiff sent a work order for approval by the defendant association under a covering letter dated 19.10.2006 for carrying out another assignment which is left midway in Flat No.189. The said maintenance/repair work involved tiling, plumbing, electrical, bath room fitting, wood work and fabrication work inside the house in Flat No.189 which has nothing to do with the other maintenance work being carried out in Flat No.190. The defendant Association has made endorsement thereon to the effect "Not 5 OS.No.9243/2006 approved. In view of the workers of 189 also working in 190, no work allowed till BMP permission is obtained and produced for 189/190". No fresh license or permission is required for maintenance/repair work. Apart from the above, the defendant association, by its letter dated 19.10.2006 has intimated the 1st plaintiff that no further construction material/workers will be allowed to enter the premises of the plaintiffs by the defendant association. The plaintiffs are discriminated against by the defendant association. The plaintiffs 15 year old construction, unless it is renovated will lose its stability and the plaintiffs will be put to irreparable loss which cannot be measured in terms of money. Hence the plaintiffs are constrained to file this suit for permanent injunction.
3. On the other hand, the defendant has filed the written statement and denied the averments of the plaint as false and incorrect and so also filed the counter claim under Order 8 Rule 6A of CPC and contended that the plaintiffs have applied for the permission and to issue work orders to carry out repairs and maintenance work in Apartment No.190 on various dates from 17.09.2006 to 21.10.2006. The plaintiff has not carried any repair or maintenance work 6 OS.No.9243/2006 instead of that they were doing addition, alternation and putting up a room in the ground floor 189 common area and entrance. Further in Apartment No.190, the plaintiffs have put up a top roof covering by using iron rods and ripper and covered the entire top floor with Mangalore tiles. The defendant have informed the plaintiffs that they are violating the provision of bye-laws and conditions stipulated in the sale deed executed by the A.F.N.H.B. The defendant also informed the plaintiffs vide its letter dated 4.10.2006 to get the BMP approval order for addition, alteration and requested there to maintain status quo. The plaintiffs have approached this court by misleading the court and suppressed the facts of alteration, additions modification in Apartment 189 and Apartment No.190 and obtained ad-interim temporary injunction order dated 21.10.2006. The defendant filed application to advance the case and it was advanced to 29.10.2006. Thereafter this Court has modified the order on 6.11.2006 and allowed the plaintiff to carry out repair and maintenance work inside the apartment and not to do any work in exterior and outside and in spite of it the plaintiffs went on to do the same. Hence the defendant has prayed for 7 OS.No.9243/2006 mandatory injunction directing the plaintiffs to demolish and remove the unauthorized constructions.
4. In response to the counter claim of the defendant, the plaintiffs have filed their written statement and denied the averments of the counter claim and further contended that the provisions of Bye laws should be in conformity with the fundamental rights. Neither the plaintiffs nor their predecessors-in-interest are signatories to the deed of declaration and hence there cannot be any invocation of the provisions of Karnataka Apartment Ownership Act, 1972 in the above case. Since the Bye laws, assuming that they are binding on the plaintiffs, are in the nature of private contract between parties. Assuming but not admitting that there is a breach, action should be initiated in accordance with law and the defendant association cannot assume the role of statutory authorities like BDA and BMP and act as their appendages and take law into their own hands. Moreover, unilaterally, the defendant neither can come to the conclusion as to what is a structural change or alteration or modification and how it differs from repair/maintenance work nor it has the competence. The defendant association has overstepped its authority with predetermined idea of 8 OS.No.9243/2006 harassing the plaintiffs since they are in an independent cluster and are insisting that as law abiding citizens it is the bounden duty of the defendant association to hand over the Civic Amenities area to the BDA. The counter claim of such nature as preferred by the defendant association is totally unsustainable in an injunction suit filed by the plaintiffs against the defendant. The cause of action of the suit filed by the plaintiffs is totally different from the one, if any, alleged by the defendant in the counter claim. In fact, there is no cause of action for the defendant to come up with such a counter claim that too in a suit filed by the plaintiffs. Hence, the defendant is not entitled to any relief sought for in the counter claim much less the ones alleged in the counter claim and prayed to decree the suit.
5. On the basis of the pleadings, one of my learned predecessor has framed the following issues: -
1) Whether plaintiffs prove that, he undertook maintenance or repair work pertains to and confined to within the boundaries of their apartment and that defendant association abstracted during month of October 2006?
2) Whether plaintiffs further prove that, unless their apartment are renovated, it loses its stability and that they would be put to irreparable loss?9 OS.No.9243/2006
3) Whether defendant proves that, plaintiffs instead of undertaking repair work or maintenance work they were making additions, alterations and putting up a room in the ground floor at apartments 189 in common area and entrance?
4) Whether defendant further prove that, plaintiffs have put up a top-roof covering by using iron rods and riper and covered the entire top floor with Mangalore tiles by violating the by-laws of Association and condition of sale?
5) Whether defendant further prove that, plaintiff has unauthorisedly constructed roof, pillars, sunshed, and staircase?
6) Whether counter claim made by the defendant is maintainable?
7) Whether plaintiffs are entitled for
injunction as prayed?
8) Whether defendant is entitling for
mandatory injunction as prayed?
9) What order or decree?
Wh
6. In order to prove the above issues, the plaintiff No.1 got himself examined as PW.1 and got marked the documents at Ex.P1 to P55. On the other hand, the defendant got examined its authorized representative as DW.1 and got marked the documents at Ex.D1 to D40 and thereafter the matter was posted for arguments. 10 OS.No.9243/2006
7. And I have heard the arguments of both sides and perused the entire materials placed on record.
8. And my findings on the above issues are as under:-
Issue No.1: In the Negative Issue No.2: In the Negative Issue No.3: In the Negative Issue No.4: In the Negative Issue No.5: In the Negative Issue No.6: In the Negative Issue No.7: In the Negative Issue No.8: In the Negative Issue No.9: As per final order, for the following:
REASONS
9. Issue No.1 to 8:- Since these issues are inter- related then they are hereby discussed commonly in order to avoid repetition of facts.
10. On perusal of the entire materials placed on record by both the parties, I found that it is an admitted fact by both the plaintiff and defendant that the plaintiff No.1 to 3 have purchased the property bearing Apartment no.190 FF from their vendors, M/s The Air Force Naval Housing Board through sale deed dated 7.10.2007 and plaintiff No.1, 2 and 11 OS.No.9243/2006 4 have purchased the property bearing Apartment No.189 GF from the other vendors through another sale deed dared 27.7.2004.
11. It is also an admitted fact by both the parties that the defendant is an association with the name and style 'Jal Vayu Vihar Apartment Owners' Association [JVVAOA]' and the plaintiffs are the members of the defendant association.
12. It is also an admitted fact that in order to repair the staircase from the first floor to second floor and to put up a stair case from the ground floor to the first floor for the easy access of the servant quarters and to protect the said structure from rain and shine, the 1st plaintiff came up with certain maintenance cum repair work and submitted an application for obtaining the work order to the defendant association and the defendant association acknowledged the same through its letter dated 23.9.2006, which is marked as Ex.P8.
13. It is also an admitted fact that as per Ex.P9 the 1st plaintiff has issued a suitable reply to the defendant association through his letter dated 26.9.2006 informing the defendant association that no structural change is involved 12 OS.No.9243/2006 in the repair cum maintenance work and the carried out work is for the purpose of stability of the building and support for the existing structure only which have become absolutely essential for the proper upkeep of the building.
14. It is also an admitted fact that as per Ex.P11 the defendant association through its letter dated 4.10.2006 advised the plaintiffs to refer the matter to Bangalore Mahanagara Palike and also advised not to carry out any further work without approval from the competent authority.
15. It is also an admitted fact that in response to such instructions from the defendant association, the 1st plaintiff wrote a letter dated 10.10.2006 to the jurisdictional Engineer to Bangalore Mahanagara Palike enclosing the plan with the proposed maintenance and preventive measure to be undertaken by the plaintiffs as per Ex.P12 and P13 and the said letter was duly served on the Bangalore Mahanagara Polike and the plaintiffs have obtained the endorsement of the Bangalore Mahanagara Palike thereon and as per Ex.P14 the 1st plaintiff again through his letter dated 10.10.2006 sought permission from the defendant association for carrying out the maintenance work and as per Ex.P15 again 13 OS.No.9243/2006 on 13.10.2006 the 1st plaintiff wrote the President of the defendant association highlighting how unreasonable and discriminatory the attitude of the defendant association and its office bearers and further as per Ex.P17 and P18, the 2nd plaintiff sent a work order for approval by the defendant association under a covering letter dated 19.10.2006 for carrying out another assignment which is left midway in Flat No.189 and the said maintenance/repair work involved tiling, plumbing, electrical, bath room fitting, wood work and fabrication work inside the house in Flat No.189 which has nothing to do with the other maintenance work being carried out in Flat No.190, but the defendant Association has made endorsement thereon to the effect "Not approved. In view of the workers of 189 also working in 190, no work allowed till BMP permission is obtained and produced for 189/190" and further as per Ex.P19 the defendant association, by its letter dated 19.10.2006 has intimated the 1st plaintiff that no further construction material/workers will be allowed to enter the premises of the plaintiffs by the defendant association.
16. Now it is the specific contention of the plaintiffs that they are the absolute owners of suit schedule properties 14 OS.No.9243/2006 and the maintenance/repair work pertains to and confined to within the boundaries of their own properties and even then they are restrained and prevented by the defendant association through their security guards at the entrance and thus the entire maintenance/repair work has come to a stand still and the plaintiffs have not at all indulged in any building violation or activities connected with structural change of the schedule properties and they have intimated the maintenance work to the Bangalore Mahanagara Palike and the regulation of construction falls within the purview of statutory body like Bangalore Mahanagara Palike and the same cannot be assumed by the defendant association.
17. And in order to prove the above material facts except leading the self-interested oral version at PW.1, the plaintiffs have neither examined any independent witnesses nor even placed any other cogent material evidence in support of their case.
18. And in fact with regard to the structural changes as mentioned in Ex.P8 is concerned, the plaintiff No.1/PW.1 at page-13 of his cross-examination has clearly admitted that "Structural §zÀ¯ÁªÀuÉ ªÀiÁqÀ¨ÁgÀzÉAzÀÄ ¤.¦.8 gÀ°è £Á£ÀÄ ¸ÀAWÀPÉÌ ¥ÀvÀæ 15 OS.No.9243/2006 §gÉ¢zÉÝãÉ. DvÀ£À ºÉ¸ÀgÀÄ £À£UÀ É UÉÆwÛ®è. DvÀ °TvÀ gÀÆ¥Àz° À è ¸À®ºÉ PÉÆnÖ®è.
¸É¥ÉÖA§gï 2006 QÌAvÀ ªÀÄÄAZÉ EAf¤AiÀÄgï EªÀgÉÆA¢UÉ ZÀað¹zÉÝ. EAf¤AiÀÄgÉÆA¢UÉ ¸ÉÃjPÉÆAqÀÄ K£ÀÄ §zÀ¯ÁªÀuÉ ªÀiÁqÀ¨ÉÃPÉA§ AiÉÆÃd£É ªÀiÁqÀ°®è. Structural Engineer EªÀgÀ ªÀgÀ¢AiÀÄ£ÀÄß ¥ÀæwªÁ¢UÉ PÉÆnÖ®è J£ÀÄߪÀÅzÀÄ ¤d. ¢B 17-9-2006 gÀ ¥ÀvÀæzÀ°è Structural Engineer ºÉýzÀÝ «µÀAiÀÄ §gÉ¢®è."
19. And even with regard to the alleged maintenance and repair work also the plaintiff No.1/PW.1 at page-13 of his cross-examination has clearly admitted that "ªÁzÀ¥ÀvÀæzÀ ¥ÁågÁ 8gÀ ¥ÁægÀA¨ÀszÀ°è §gÉzÀAvÀ ¸ÀAUÀwUÀ¼À §UÉÎ CAzÀgÉ AiÀiÁªÀ GzÉÝñÀPÁÌV £Á£ÀÄ AiÀiÁªÀ AiÀiÁªÀ j¥ÉÃj ªÀiÁrPÉƼÀî®Ä GzÉÝò¹zÉÝÃ£É CAvÀ ªÁzÀ¥vÀ ÀæzÀ «ªÀgÀuÉAiÀÄ£ÀÄß £À£Àß CfðAiÀÄ°è §gÉ¢®è J£ÀÄߪÀÅzÀÄ ¤d. CzÉà jÃw ¤.¦.9 gÀ°èAiÀÄÆ PÀÆqÀ K£ÀÄ j¥ÉÃj ªÀiÁrPÉƼÀî®Ä EaѹzÉÝÃ£É CAvÀ «ªÀgÀªÁzÀ ªÀiÁ»wAiÀÄ£ÀÄß (ªÁzÀ¥ÀvÀæzÀ ¥ÁågÁ 8gÀ°è §gÉzÀAvÉ) §gÉ¢®è J£ÀÄߪÀÅzÀÄ ¤d. £À£Àß »A¢£À ªÀiÁ°ÃPÀ¤UÉ AiÀiÁªÀ µÀgÀvÀÄUÛ À¼£À ÀÄß ¸ÀAWÀzÀªÀgÀÄ «¢ü¹zÀÝgÉÆ CzÀÄ £À£UÀ É §AzÀ£s ÀPÁjAiÀiÁUÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¤d. D §UÉÎ PÀæAiÀÄ¥ÀvÀæzÀ°è §gÉAiÀiÁ¯ÁVzÉ J£ÀÄߪÀÅzÀÄ ¤d."
20. And moreover with regard to the other material contention of the plaintiffs that the regulation of construction falls within the purview of statutory body like Bangalore Mahanagara Palike and the same cannot be assumed by the 16 OS.No.9243/2006 defendant association and the contents of the documentary evidence of Ex.P12 is concerned, the plaintiff NO.1/PW.1 at page-14 of his cross-examination has clearly admitted that "¤.¦.12gÀ enclosure zÀ°è K£ÀÄ PÉ®¸À ªÀiÁqÀ®Ä EaѹzÉÝÃ£É JA§ §UÉÎ §gÉ¢zÉÝãÉ. ¥Á裣À ÀÄß ªÀÄAdÆjUÁV ©©JA¦AiÀĪÀjUÉ PÀ¼ÀÄ»¹®è ªÀivÀÄÛ CzÀPÁÌV ¤.¦.12 E®è. ¤.¦.12 PÉÆlÖ £ÀAvÀgÀ j¥ÉÃjUÁV ©©JA¦AiÀĪÀjUÉ Cfð PÉÆnÖzÉÝÃ£É CAvÀ ¥ÀæwªÁ¢UÉ ºÉýzÉ J£ÀÄߪÀÅzÀÄ ¤dªÀ®è", which is rather fatal to the case of the plaintiffs as the above material admissions of plaintiff No.1/PW.1 clearly shows that as per the advise of the defendant the plaintiffs have only submitted an application and plan to repair their building as per Ex.P12 and P13 to the B.M.P. and it does not mean that the said B.M.P. has granted leave and license to the plaintiffs to do the above facts. When that is so, it cannot be said that the plaintiffs have got a cause of action to file the suit against the defendant.
21. And lastly since the plaintiffs themselves have contended that the regulation of construction falls within the purview of statutory body like Bangalore Mahanagara Palike and the same cannot be assumed by the defendant association and since the plaintiffs have not at all produced 17 OS.No.9243/2006 any other cogent material documentary evidence to prove that they have obtained the necessary permission and license from the B.M.P. and since the plaintiffs themselves have admitted that the defendant has permitted them to carry out the maintenance and repair activities inside the suit schedule properties then it cannot be said that the defendant association has obstructed the plaintiffs as contended in the plaint.
22. On the other hand though the defendant has filed the counter claim under Order 8 Rule 6A of CPC and contended that the plaintiffs have applied for the permission and to issue work orders to carry out repairs and maintenance work in Apartment No.190 on various dates from 17.09.2006 to 21.10.2006 and the plaintiffs have not carried any repair or maintenance work instead of that they were doing addition, alternation and putting up a room in the ground floor 189 common area and entrance and further in Apartment No.190, the plaintiffs have put up a top roof covering by using iron rods and ripper and covered the entire top floor with Mangalore tiles, the same do not hold any water as the above facts are not at all proved by the defendant with cogent material evidence.
18 OS.No.9243/2006
23. Even though the defendant got examined its authorized representative as DW.1 and got marked the documents at Ex.D1 to D40, the same are of no help to the case of the defendant as contrary to his examination-in-chief the above said DW.1 at page-25 of his cross-examination has clearly admitted that "F PÉùUÉ C¢üPÁgÀ ¥ÀvÀæ ¥ÀqÉAiÀĪÀ ªÉÆzÀ®Ä K£ÉãÀÄ «µÀAiÀÄ EzÉAiÉÆ CzÀÄ £À£UÀ É ªÉÊAiÀÄÄQÛPª À ÁV UÉÆwÛ® J£ÀÄߪÀÅzÀÄ ¸Àj".
24. And even with regard to the bye-law of Ex.D2 is concerned, the above said DW.1 at page-28 of his cross- examination has clearly admitted that "¤r.2 jf¸ÁÖçgï PÀZÉÃj¬ÄAzÀ ¥ÀqÉzÀ zÀÊrüÃPÀÈvÀ £ÀPÀÄ C®è. £ÉÆAzÀuÉAiÀiÁUÀĪÁUÀ £ÁªÀÅ rÃqï D¥sï rPÀgè ÃÉ µÀ£ï PÉÆnÖzÉÝêÉ. CzÀÄ £ÀªÀÄä §½ EzÉ. PÉÆà D¥ÀgÉÃnªï ¸ÉƸÉÊn jf¸ÁÖçgïgÀªÀjAzÀ £ÀªÀÄä C¸ÉÆöAiÉÄõÀ£ï AiÀiÁªÀÅzÃÉ ¸Ànð¦üPÉmï ¥ÀqÉ¢®è JAzÀgÉ, £ÀªÀÄä C¸ÉÆöAiÉÄõÀ£ï AiÀiÁªÀÅzÉà PÉÆà D¥ÀgÉÃnªï ¸ÉƸÉÊn jf¸ÁÖçgï CrAiÀÄ°è §gÀĪÀÅ¢®è", which is rather fatal to the case of the defendant as in a judgment of 2002(5) ALO 818 i.e., Hyderabad Cricket Association Vs. Cambridge Cricket Club and others one produced by the plaintiffs, it has been clearly held that, "It would not be competent to a Secretary or other members of the governing body of the Club or Association to sue or be sued alone in respect of matters in which the association is interested even 19 OS.No.9243/2006 though authority in that behalf has been conferred on them by all members of the association."
25. And in fact in the above judgment of 2002(5) ALO 818 i.e., Hyderabad Cricket Association Vs. Cambridge Cricket Club and others one produced by the plaintiffs, it has been further held that, "The society is an association of individuals which comes into existence with certain aims and objects. If it is not registered as a society under the Society Registration Act, it would have the character of a club or other association which cannot sue or be sued except in the name of all members of the association or in the name of the Secretary or other members of the governing body on their own behalf and on behalf of other members of the association under the provisions of Order 1 Rule 8 of the Civil Procedure Code."
26. And even in another ruling of Thoothukudi Nazareth Diocese Vs. The Church Of South India one relied on by the plaintiff, the Hon'ble High Court of Madras has also held that, "Order 1 Rule 8 of CPC says that, where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the 20 OS.No.9243/2006 court sue or be sued or may defend such suit on behalf of or for the benefit of all the persons so interested. Section 26 of CPC reads every suit shall be instituted by the presentation of the plaint or in such other manner as may be prescribed. As per the above provisions, the institution of such a suit must be with permission of the court and the suit without getting permission of the court under Order 1 Rule 8 of CPC cannot be maintained. So long as the permission was not sought for and obtained and not even applied for it cannot be stated that there was a suit properly filed."
27. And above all it is interesting to note at this stage that except producing some photographs neither the plaintiffs nor the defendant association has got appointed any engineer/surveyor as court commissioner to throw light with regard to the alleged alterations or additions to the suit property.
28. And in fact the defendant had filed IA.No.15 under Order 39 Rule 7 of CPC seeking permission to the defendant association, its office bearers, members and its engineers/appointees to inspect the suit schedule properties, for which the plaintiffs have filed their objections and 21 OS.No.9243/2006 opposed the same. And after hearing the arguments of both sides this court has dismissed the above IA.No.15 on 22.09.2012 on the following grounds:
"¥ÀæwªÁ¢ £ÉÆÃrPÉÆAqÀÄ §gÀ¨ÉÃPÉAzÀÄ ºÉýPÉÆAqÀÄ vÀ£ÀßzÉà DzÀAvÀºÀ MAzÀÄ ±ÉqÀÆ宣ÀÄß ªÀÄzÀsåAvÀgÀ CfðAiÀÄ°è §gÉ¢zÁÝgÉ. D ±ÉqÀÆå°£À «ªÀgÀuÉ ªÁzÀ¥vÀ ÀæzÀ ±ÉqÀÆå¯ï£À°è vÉÆÃj¹zÀ «ªÀgÀuÉ MAzÀPÉÆÌAzÀÄ vÁ¼ÉAiÀiÁUÀĪÀÅ¢®è. ¥ÀæwªÁ¢ vÀ£ÀßzÉà DzÀ ±ÉqÀÆ宣ÀÄß °TvÀ ºÉýPÉAiÀÄ°è vÉÆÃj¹zÁÝgÉ. D ±ÉqÀÆå°UÀÆ ªÀÄzÀsåAvÀgÀ CfðAiÀÄ°ègÀĪÀ ±ÉqÀÆå°UÀÆ MAzÀPÉÆÌAzÀÄ vÁ¼ÉAiÀiÁUÀĪÀÅ¢®è. F J®è PÁgÀtUÀ½UÁV F ªÀÄzÀsåAvÀgÀ CfðAiÀÄ£ÀÄß ªÀeÁ ªÀiÁqÀ¨ÉÃPÁUÀÄvÀÛzÉ."
29. And being aggrieved by the above dismissal order the defendant association has filed W.P.No.40590/2012 before the Hon'ble High Court of Karnataka, but the above writ petition is also dismissed on 3.11.2014 and thus there is nothing on record on behalf of the defendant to prove the alleged unauthorized construction by the plaintiff over the suit schedule property.
30. And lastly in a judgment of RSA.No.5503/2010 dated 8.7.2010 one relied on by the plaintiffs, our Hon'ble High Court of Karnataka has clearly held that "In view of an alternative and efficacious remedy is provided under the special statute i.e., Karnataka Municipal Act, the civil court will not get jurisdiction to entertain the suit". 22 OS.No.9243/2006
31. So in view of the discussion made above, I am of the opinion that since the plaintiffs have not at all filed the present suit as per the provisions of Order 1 Rule 8 of CPC and since the plaintiffs themselves have admitted that the defendant has permitted them to carry out the maintenance and repair activities inside the suit schedule properties and since the plaintiffs have not at all produced any other cogent material documentary evidence to prove that they have obtained the necessary permission and license from the B.M.P. to carryout other repair and maintenance work and since the plaintiffs have failed to prove that they undertook maintenance or repair work within the boundaries of their apartment and the defendant association has obstructed the same then the plaintiffs are not at all entitled to any reliefs as sought by them and since the defendant association has also failed to prove that the plaintiffs instead of maintenance work they were making additions and alterations in the common restricted area and further failed to prove that the plaintiffs have put up any unauthorized constructions then the defendant association is not at all entitled to any relief as sought in their counter claim and accordingly I have answered issue No.1 to 8 in the negative.
23 OS.No.9243/2006
32. Issue No.9:- In view of the discussion made on issue No.1 to 8 and further holding them in the negative, I proceed to pass the following order:-
ORDER The suit of the plaintiffs and so also the counter claim of the defendant are hereby dismissed.
In view of the peculiar circumstances, the parties are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 18th day of November, 2017).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 V.Joshua List of documents exhibited for plaintiffs:
Ex.P1 Original sale deed of July, 2004
Ex.P2 Original sale deed of October, 2005
Ex.P3 & 4 Khata certificates
Ex.P5 & 6 Approved plans
Ex.P7 Bye laws of the defendant
Ex.P8 Copy of work order
24 OS.No.9243/2006
Ex.P9 Letter
Ex.P10 Work order
Ex.P11 Letter written by Association
Ex.P12 Letter
Ex.P13 Sketch
Ex.P14 to 16 Letters
Ex.P17 Letter
Ex.P18 Brief details of repair
Ex.P19 & 20 Letters
Ex.P21 Receipt
Ex.P22 Acknowledgement
Ex.P23 to P55 Negatives, photo prints and other
documents.
List of witnesses examined for defendant:
DW.1 H.S.Sathyanarayana List of documents exhibited for defendant:
Ex.D1 Authorization letter
Ex.D2 True copy of Bye law
Ex.D3 & 4 Office copies of work order
Ex.D5 to 24 19 Photographs and C.D.
Ex.D25 to 35 11 Photographs ad Negatives
Ex.D36 to 39 4 Photographs
Ex.D40 Letter dtd.29.6.2006.
XVII Addl. City Civil & Sessions
Judge, Bengaluru.