Bangalore District Court
Sri.Khalid Pasha vs The Commissioner on 29 February, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 29th day of February 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.26140/2014
Plaintiff: Sri.Khalid Pasha,
S/o.Mohammed Basha, aged
about 38 yrs, R/at.No.21, East
Stree, Neelasandra, Bengaluru-
560047.
(By Sri.M.D.Krishnappa, Advocate)
V/S
Defendant: The Commissioner, Bruhat
Bengaluru Mahanagara Palike,
Bengaluru.
(By Smt.N.Sudha, Advocate)
Date of institution of the suit 31.07.2014
Nature of the suit (Suit for Pro-note, Suit for Permanent
Suit for Declaration and Possession, Injunction
Suit for Injunction, etc.)
Date of commencement of recording -
of the evidence
Date on which the Judgment was 29.02.2016
pronounced
2 O.S. No.26140/2014
Total duration Year/s Month/s Day/s
01 06 28
ORDERS ON MAINTAINABILITY OF THE SUIT
Present suit has been filed under Order VII, Rule 1 of CPC
for permanent injunction to restrain the defendant from interfering
with the possession of the plaintiff over the suit schedule property
and costs.
2. Description of suit schedule property, as noted in
schedule to the plaint, is as follows: -
All the piece and parcel of shop No.30, measuring East to
West: 6-00 feet and North to South: 6-00 feet, situated at
Neelasandra Main Road, Bazaar Street, Near Church, Bengaluru
and bounded on:
East by: Shop No.29;
West by: Shop No.31;
North by: Private Property; and on
South by: Road.
3. Advocate for the defendant has filed IA-IV under Order
VII Rule 11 (A) r/w Sec.151 of CPC and sought relief for rejection
of the plaint with exemplary cost as suit is not maintainable. It is
stated in the accompanying affidavit of the Head of the Legal Cell
3 O.S. No.26140/2014
to whom delegated the authority by the BBMP Commissioner to
represent on behalf of the defendant and he contended that the
plaintiff has filed a suit against the defendant authority seeking a
equitable relief of permanent injunction on the ground that the
officials of the defendants are trying to dispossess the plaintiff
from the suit schedule property. The allegations made out against
the officials of the defendant are baseless. The suit schedule
property is coming in the place of footpath and causing
inconvenience to the pedestrians who are using the same; when it
was found to the defendant authority it has taken steps under
Section 288 (D) of the KMC Act-1976 to remove the illegal shop
No.29 measuring East-West: 6 feet, North-South: 6 feet started on
footpath at Neelasandra Main Road, Bazaar Street, Near Church,
Bengaluru, in order to free usage of the footpath by the pedestrians
in the interest of general public. It is also stated in the affidavit that
Hon'ble High Court of Karnataka has given a direction in W.P.
No.13731/2013 dated 23.07.2014 to remove the all unauthorized
encroachments, also obstructions causing either by temporary or
permanent on the existing footpath within a period 3 months, by
4 O.S. No.26140/2014
exercising the power under Section 288 (d) of the KMC Act-1976.
It is also stated in the affidavit that if the suit is entertained, and
continued in the same status it will cause a hardship against the
interest of the public in general and defendant authority will be
effected; on account of that suit is not maintainable against the
defendant authority and it is also stated that already the
encroachment made by plaintiff in existing footpath and in which
place shop was started is removed. Therefore, the plaintiff cannot
claim either the possession of the suit schedule property or title
over it. The very action taken by the defendant against the plaintiff
is as per the direction given by the Hon'ble High Court of
Karnataka in the above said WP and there is no any interference
caused by the defendant as alleged by the plaintiff. The very cause
of action of the plaintiff is a created one and illusive. Therefore,
the above said defendant authority stated that the suit of the
plaintiff deserves to be dismissed and prays to dismiss the same.
4. On the other hand, the plaintiff of this case has filed a
objection by opposing the very interim application of the defendant
filed under Order VII Rule 11 (A) of the CPC by taking contention
5 O.S. No.26140/2014
that the defendant authority has no proper and cogent reasons and
very application is not based on the merit. As such the controversy
arisen between parties to be settled only after conducting full
pledged trial, not at this premature stage and allegation made
against plaintiff in the plaint are false allegations. There was no
any reason to the defendant to remove and dispossess the plaintiff
from the suit schedule property; because the plaintiff are running a
business from last 30 years and trying to eke out their livelihood by
got registering its shop name as a small petty shop association and
it is duly registered in the concerned authorities. Further contended
that plaintiff is in lawful possession and he is not a encroacher in
the suit schedule property. Unnecessary defendant officials are
causing interference with an intention to remove the shop of
plaintiff by dispossessing from the suit property. The order of the
Hon'ble High Court of Karnataka passed in Writ is not at all
connected or affected the case of plaintiff. The very suit property
of the plaintiff is not on the footpath and it is not causing any
inconvenience to the pedestrians. It is away from footpath about 9
feet back. But, the defendant authority is misusing the order of the
6 O.S. No.26140/2014
Hon'ble High Court of Karnataka passed in WP as an equipment.
In view of the same plaintiffs facing lot of hardship and injustice in
doing his business; except the above said business plaintiff do not
have any other avocation for earning income to his and his family
member livelihood. It is also contended that the application filed
by the defendant may be dismissed with cost by giving an
opportunity to the plaintiff to establish his case in a full pledged
trial and prays to dismiss the application.
5. Now, the following point would arise for my
determination: -
1. Whether the IA-IV of the defendant
authority is deserved to be allowed at
this stage?
2. To what order or decree?
6. My findings on the above said points are as follows: -
Point No.1: In the Affirmative, and
Point No.2: As per final order,
for the following: -
REASONS.
7. POINT No.1: Defendant has filed this IA-IV stating that
the suit of the plaintiff filed for permanent injunction against the
7 O.S. No.26140/2014
defendant is not maintainable. It is also stated in the accompanying
affidavit of IA-IV that the suit schedule property of the plaintiff so
called petty shop is on the footpath abutting to Neelasandra Main
Road, Bazaar Street, near Church, Bengaluru, it has been causing a
inconvenience to the pedestrians who are using the same. When it
came to the knowledge of the defendant it has removed the shop of
the plaintiff by exercising the power under Section 288 (d) of the
KMC Act, 1976 as per law. It is also stated that the above said
action of the defendant, the shop of the plaintiff removed is as per
the direction given to defendant authority in W.P. No.13731/2013
dated 23.07.2014 by the Hon'ble High Court of Karnataka, in
which it is directed to remove the all unauthorized encroachments
construction and obstructions existing on footpath in Bengaluru
City. Accordingly the defendant authority has complied the order
of Hon'ble High Court of Karnataka. On the above said
contention, the defendant's authority contended that for the above
said reasons, the suit of the plaintiff is not maintainable for which
the plaintiff is claiming the suit reliefs of permanent injunction
8 O.S. No.26140/2014
against the defendant authority, though the already the suit shop is
removed.
8. On the other hand it is case of the plaintiff that he has
established his shop in the suit schedule property by got registering
the shop in concerned authority and running the business as a petty
shop since last 30 years without any obstruction of the defendants;
but all of sudden defendants authority has come forward to remove
the shop from the suit schedule property. If, the same is done
plaintiff will be put into hardship, which will be caused a hurdle to
his livelihood. It is also contended that the opportunity should be
given to the plaintiff to prove his lawful possession over the suit
schedule property in a full pledged trial. It is also contended that
more over the order and direction given in W.P. No.13731/2013
dated 23.07.2014 by the Hon'ble High Court of Karnataka is not
applicable to the present case in hand; and the application of the
defendant is premature. On the above said grounds plaintiff prays
to dismiss the IA-IV.
9. Upon perusal of the IA-IV and objection filed by the
plaintiff to the said IA, it is appearing that there is a necessary to
9 O.S. No.26140/2014
looked into the observations and the order of the lordships of the
Hon'ble High Court of Karnataka made in W.P. No.13731/2013
dated 23.07.2014, to decide the present IA in hand. The above said
writ petition was filed by the Mrs.Jennifer Pinto and another
against the State of Karnataka represented by the Housing and
Urban Development Secretary and BBMP and also Director
General of Police, PWD and others, in which the petitioners stated
in the writ petition that the BBMP has not made a repair of the
pedestrians footpath which are abutting the road in Bengaluru City,
and in order to avoid walking on the main road the BBMP has to
take a steps for making repair of the footpath and in the writ
petition it is also prayed by the petitioners before the Hon'ble High
Court of Karnataka that the necessary direction may be given to
BBMP and concerned authorities who carry out the certain
improvements etc., after hearing the petitioners and BBMP and
other authorities the lordships of the Hon'ble High Court of
Karnataka has given a direction in the above said WP that the
BBMP and concerned authorities shall remove the unauthorized
encroachments, constructions, and obstructions either temporary or
10 O.S. No.26140/2014
permanent on the existing footpath in exercise of power under
Section 288 (D) of the KMC Act 1976 and also given a direction to
repair the improperly laid footpaths pedestrians friendly within
period of 6 months.
10. In this case it is pertinent to note that the plaintiff of this
suit has produced the document No.1 a registration certificate
issued by the Registrar of Sangha, Bengaluru, in which it is
appearing that Neelasandra Sanna Vyaparigala Sangha is registered
in the leadership of its Secretary for the period from 13.03.2002 to
31.03.2003 and another letter is produced, which is a written by
Bengaluru City Janatha Dala addressing to the Chairman of BDA
by referring to accommodate to the members of Neelasandra Sanna
Vyaparigala Sangha to continue their shops already running in their
respective places of Neelasandra. Plaintiff has produced the
another letter dated 18.06.1997 it is a written by Secretary
K.Ghouse Pasha to the BDA with request to regularize their
association members bunk shops put up at he Neelasandra as a
members of Neelasandra Petty Traders Association on the vacant
land adjacent to Neelasandra Main Road, Bazaar Street, near
11 O.S. No.26140/2014
Church, Neelasandra, Bengaluru and also produced the four photos
with one negative of the plaintiff's shop. On the basis of the above
said documents, plaintiff is claiming that their shop is established
as per law and they are in lawful possession of the suit schedule
property and the above said his documents will show the prima
facie of his case and prays to reject the application by stating that
the plaintiff may be permitted to prove his possession in a full
pledged trial. On careful consideration of the above said IA
contents it is stated that already defendant authority has removed
the shop from the suit schedule property as per the writ order of the
Hon'ble High Court of Karnataka, now the plaintiff is not in
possession of the suit schedule property. On the above said
removal of the shop from the suit schedule property as per the writ
order of the Hon'ble High Court of Karnataka, the present suit is
not maintainable against the defendant. Upon perusal of the above
discussed order passed in W.P. by the Hon'ble High Court of
Karnataka there is a clear direction to BBMP and other authorities
to clear the footpath and to make a repair for the convenient of the
pedestrians. Accordingly, the BBMP has removed the shop of the
12 O.S. No.26140/2014
plaintiff. It is also appearing in this case that the plaintiff has not
produced the any license etc., obtained by the BBMP to show that
plaintiff is running the shop in a suit schedule property as per the
law with a necessary license, except the plaint schedule and above
discussed documents no any documents produced by the plaintiff
to show the situation of the suit schedule property that whether the
same is about 9 feet back from the pedestrians road and it is a open
space etc. It is also I would like to say that once the defendant
authority has made a survey against the plaintiff property by stating
that the same is illegally without obtaining necessary license
established on the footpath and ultimately removed the shop from
the suit schedule property. Regarding this removal nothing is
stated by the plaintiff in this suit and the same is hidden without
bringing to the notice of this court by got amending in the plaint
etc. I think the defendant authority has taken a correct legal steps
against the plaintiff and removed the shop of the plaintiff from the
suit schedule property as per the direction given by the Hon'ble
High Court of Karnataka in the above said W.P. No.13731/2013
dated 23.07.2014. When there is a clear cut direction by the
13 O.S. No.26140/2014
Hon'ble High Court of Karnataka to remove the shops and other
obstructions which are on the footpaths of the roads in Bengaluru
City, then there does not arise the question of permitting the
plaintiff or such any other persons to continue their shops on
footpath or in such places like suit property etc. It is also important
to note that it is stated in the affidavit of IA-IV that already the
defendants have removed the shops of the plaintiff, about which
nothing stated by the plaintiff in their objection, it itself shows that
the suit of the plaintiff become a infructuous. For the above said
reasons, I came to conclusion that the IA filed by the defendant
authority deserves to be allowed. Accordingly, I answer point
No.1 in favour of the defendant as a Affirmative.
11. POINT No.2: For the above discussed reasons I
proceed to pass the following:-
ORDER
IA-IV is hereby allowed.
Plaint of the plaintiff is rejected as provided under Order VII Rule 11 (A) r/w Sec.151 of CPC, 14 O.S. No.26140/2014 in view of that the suit of the plaintiff is dismissed as not maintainable against the defendant. (Dictated to the Stenographer on online computer, thereof corrected and then pronounced by me in the open court on this the 29th day of February, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
15 O.S. No.26140/2014