Bangalore District Court
Suresha vs The Bruhath Bangalore Mahanagara on 30 July, 2015
IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-53), BENGALURU CITY.
Dated this the 30th day of July, 2015
PRESENT:
Smt. Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge, Bengaluru City.
: O.S. NO. 7489/2008 :
PLAINTIFF : Suresha,
Aged about 52 years,
S/o. Late P. Parameshwara @
Parameshwara Bhatta,
Residing at No.529, OTC Road,
Near Akkipet, Balepet,
Bangalore - 560 053.
(By Sri Y.K.Narayana Sharma, Advocate)
-V/S-
DEFENDANTS : 1. The Bruhath Bangalore Mahanagara
Palike (BBMP), represented by its
Commissioner,
Corporation Offices, N.R.Square,
Bangalore - 560 001.
2. The Asst. Executive Engineer,
The Bruhath Bangalore Mahanagara
Palike (BBMP), Chickpet Division,
Bangalore - 560 053.
3. Smt. Padma K. Bhat,
Aged about 42 years,
2 O.S.No.7489/2008
D/o. Late Srikrishna Bhat,
Residing at No.390, 5th Cross,
3rd Main, R.R.Layout,
Jnana Bharathi Post,
Bangalore - 560 056.
(Earlier at No.40/1, Nagadevanahalli).
(By Sri MRN, Advocate for D.1 & D.2)
(By Sri HSN, Advocate for D.3)
Date of institution of the suit: 12.11.2008
Nature of the suit:
Declaration, Permanent
Injunction.
Date of commencement of 23.01.2013
recording of evidence:
30.07.2015
Date on which Judgment was
pronounced:
Duration:
Days Months Years
18 08 06
: JUDGMENT :
This suit is filed by the plaintiff against the defendants No.1 to 3 for declaration that the notice No.AEE(C) Pr 346/2008-2009, dated 22.10.2008 sent by the 2nd defendant and further proceedings thereon is illegal and opposed to law and the suit schedule building is not liable to be demolished as proposed by the defendants and 3 O.S.No.7489/2008 permanent injunction restraining the defendants, their agents, employees, officials claiming under them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff and not to dispossess him from the suit schedule property except in accordance with law, with costs and such other reliefs.
(Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case are that the plaintiff is the tenant of a portion of the premises bearing No.529, OTC Road, Balepet, Bangalore, and described it in the schedule to the plaint and the tenancy is English calendar month and the rent is Rs.75/- per month. Accordingly, he is in possession and enjoying it since several years. The father of the plaintiff, Parameshwara @ Parameshwara Bhatta was the tenant of the suit property and one A.R.Anantha Raman filed an eviction petition in HRC No.2595/1986 on the ground of his occupation and arrears of rent. It was disposed off on 30.09.1991, dismissing it and after the death of A.R.Anantha Raman on 24.03.1993, his daughter Smt. A.R.Lalitha 4 O.S.No.7489/2008 continued as landlord of schedule property and collected the rent from the father of the plaintiff and as per the agreement, Smt. A.R.Lalitha treated the plaintiff as tenant and it was continued on a rental of Rs.75/- per month up to July 1995. She sold the schedule property to somebody else without furnishing the particulars i.e., in the June 1995 in favour of Mohammed Zia Ulla, who was not known to the plaintiff and never made demand to pay the rent. Thereafter, the defendant No.3 purchased the suit property and she demanded the rent and plaintiff has been paying the rent to the defendant No.3 up to February 2008 and the plaintiff was residing with his father and performing pooja in the schedule property and stated mode of enjoyment of the suit property. The defendant No.3 demanded the vacant possession of the premises and gave threat of eviction. Hence, the plaintiff has filed the suit in O.S.No.8586/2005 against the 3rd defendant seeking permanent injunction and the matter was referred to Lok Adalath after appearance of 3rd defendant in that suit and it was compromised that the 3rd defendant accepted the plaintiff's possession as tenant and she has undertaken not to disturb the possession of the plaintiff except in 5 O.S.No.7489/2008 accordance with law and the said suit was decreed on 28.01.2006, and accordingly rent was being paid to her. Subsequently, the plaintiff learnt that the defendant No.3 obtained a decree for possession in O.S.No.2097/2006 filed against G. Mohammed Zia Ulla and others showing the entire suit property as premises in occupation of the said defendants and by misusing the description and the eviction order, the 3rd defendant wanted to dispossess the plaintiff. The plaintiff was not a party to the said suit. The plaintiff has filed another suit in O.S.No.2397/2008 seeking declaratory relief that the decree passed in O.S.No.2097/2006 is not binding on the plaintiff and injunctory relief, and it is pending. The interim order was passed in favour of the plaintiff. The 3rd defendant is trying to dispossess the plaintiff from the suit schedule property by adopting illegal and untenable methods and gave false information to the defendants No.1 & 2 about the suit property as it is in a dilapidated condition and it was demolished and hence the plaintiff after coming to know about the notice dated 22.02.2008 submitted representation not to demolish the building and to hear the plaintiff before passing the order. The notice has been served on the 6 O.S.No.7489/2008 defendants No.1 & 2, but they have not taken any steps in that regard by giving an opportunity to the plaintiff. The 3rd defendant got issued a legal notice dated 27.07.2008 demanding the vacant possession on untenable grounds that it is in dilapidated condition. The plaintiff sent a reply on 18.08.2008 and another legal notice dated 20.10.2008 to the defendants No.1 & 2 and the Asst. Revenue Officer of the Corporation enclosing several documents including the plaintiffs in the earlier suits. The defendants No.1 & 2 have not heard the plaintiff and in the meantime the 3rd defendant got issued another notice dated 17.10.2008, stating that the BBMP authorities issued a notice to her directing her to demolish the building on the ground of its dilapidated condition. The 3rd defendant being an influential person having no regard for law and order, is trying to dispossess the plaintiff from the suit property and the officials of defendants No.1 & 2 have colluded and trying to demolish the building without due process of law. The building is not in a dilapidated condition and the plaintiff and his family members are residing in the suit schedule property. Hence, the notice issued dated 22.10.2008, is illegal and there arose cause of action to file 7 O.S.No.7489/2008 the suit and accordingly by issuing notice to the defendants No.1 & 2 as required under section 482 of KMC Act, and since there was no response, the plaintiff has filed the suit praying for a decree as prayed for.
3. On registering the suit and issuance of suit summons to the defendants, the defendants appeared through their counsels. The defendants No.1 & 2 have filed their written statement denying the material contents of the plaint averments specifically para Nos.2 to 4 for want of knowledge and called upon to strict proof of the same and that the defendant No.3 is the owner of the suit property. The proceedings before the Civil Court that the plaintiff and 3rd defendant are not within the knowledge of these defendants. It is denied the initiation of proceeding by issuing notice to the defendant No.1 and alleged collusion of defendant No.3 and getting issued the notice of demolition of building, etc., are specifically denied, and that as the building owned by defendant No.3 is being a dilapidated condition as the defendant No.3 approached in this connection that the building at any moment may collapse and it is endangering the 8 O.S.No.7489/2008 public life and requested to initiate the action to demolish. Hence, the officials of defendant No.2 inspected the property and confirmed the dilapidated condition of the building, which includes the suit property and issued the order to demolish the structure at her cost after vacating the tenants. The defendant No.2 issued a notice to the defendant No.3 as the building was dilapidated condition and it was old one and it has proceeded with in that regard, with due process of law and no illegality committed by the defendants. There is no cause of action to file the suit and plaintiff has no locus standi to file the above suit. The plaintiff has to vacate the premises to facilitate the demolition of building in the interest of general public life and property. On these grounds, it is prayed to dismiss the suit.
4. The defendant No.3 on putting her appearance, has filed written statement and denied the material allegations of the plaint averments. The suit of the plaintiff, is not maintainable either in law or on facts and material allegations pertaining to the ownership of the suit property and proceedings, etc., and tenancy relationship in view of the proceedings before the Civil Court, has 9 O.S.No.7489/2008 been admitted. But it is denied that she has interfered with the plaintiff's peaceful possession and enjoyment of the suit property without due process of law and in collusion with defendants No.1 & 2 got issued a notice of demolition on the ground of nature of premises with dilapidated condition. She has stated specifically that since the building in question being very old one and dilapidated condition and it may fall at any moment and hence the defendant No.2 on inspecting the building in question along with the staff and found its condition being not well to reside therein and initiated the proceedings of demolition of structure, which is in occupation of plaintiff and hence there is no any illegality committed by her and she has proceeded in accordance with law as she has already initiated the proceedings for eviction of plaintiff and it is pending for adjudication. The plaintiff has suppressed the material facts and misleading the court and in order to much hardship to this defendant, the plaintiff has filed the false suit and he is a influential person and in order to knock off the property, he has made a plan in the name of God and created bad rumours in the public as there is a power and there is a temple in the premises. There is no cause of 10 O.S.No.7489/2008 action requires the suit. On these grounds, it is prayed to dismiss the suit.
5. On the basis of the pleadings of the parties, the Learned IX Addl. City Civil & Sessions Judge, Bangalore, has framed the following issues on 02.09.2011.
(1) Whether the plaintiff proves that the notice in No.AEE(C) pr. 346/2008-09 by 2nd defendant is liable to be declared as illegal?
(2) Whether the plaintiff proves that there is interference by defendants?
(3) To what decree or order?
6. Subsequently, following re-casted additional issue has been framed by this court, on 18.03.2015.
Whether the plaintiff is entitled for the reliefs as sought for?
7. To prove the case, the plaintiff himself deposed as P.W.1 and relied upon the documents at Exs.P.1 to P.13. On the other hand, the defendant No.3 herself deposed as D.W.1 and relied upon the documents at Exs.D.1 to D.7.
11 O.S.No.7489/2008
8. Heard the arguments of the Learned counsels for the plaintiff and defendants.
9. Perused the pleadings of the parties, evidence and record on hand.
10. My findings on the above issues and re-casted additional issue are as under:
Issue No.1 .. In the Affirmative.
Issue No.2 .. Partly in the Affirmative.
Addl. recast-Issue No.1 .. Partly in the Affirmative.
Issue No.3 .. As per final order for the
following:
R E A S O N S
11. Issue Nos.1 & 2 & Addl. Recast Issue No.1:- These issues are the relief oriented issues and the discussion on these issues are based on similar and oral and documentary evidence. Hence, these issues are taken for common consideration.
12. The suit of the plaintiff is clear on going through the entire pleadings of the parties that the plaintiff ascertained himself as 12 O.S.No.7489/2008 tenant in respect of the suit property. He has specifically challenged the notice issued by the 2nd defendant bearing No. AEE(C) Pr 346/2008-2009, dated 22.10.2008, as it is illegal and opposed to law and that under the guise of said notice, the defendants are proceeded to demolish the suit property and also for permanent injunction against the defendants No.1 to 3 restraining them from interfering with the peaceful possession and enjoyment of the suit property and also not to dispossess him from the suit property. Thus, two kinds of declaratory relief and injunctory relief are sought for i.e., one for declaring the notice as illegal and opposed to law and for declaration that the suit schedule building being in fit condition, is not liable to be demolished and injunctory relief not to interfere with the peaceful possession and not to dispossess him from the suit schedule property. However gist of the entire case to be duly considered, about the real case of the plaintiff.
13. The specific contention is that he being the tenant under defendant No.3, is entitled to enjoy the suit property bearing No.529, OTC Road, Balepet, Bangalore. The defendant No.1 / BBMP, is 13 O.S.No.7489/2008 represented by the Commissioner. The defendant No.2, the Asst. Executive Engineer, BBMP being the authority of BBMP has issued a notice of demolition of petition schedule premises. It is alleged that at the instigation of defendant No.3, it was issued without due process of law. Whereas, the defendants have specifically contended that since defendant No.3 made a representation to BBMP about dilapidated condition of building in the suit schedule property and sought for taking suitable action of demolition of the premises. Therefore the defendant No.2 has issued a notice under dispute, representing BBMP, after inspecting the premises and found it as old and in a dilapidated premises. It was with due process of law.
14. Plaintiff himself as P.W.1 has reiterated the plaint averments and relied upon the documents at Exs.P.1 to P.13, which are perused and duly considered. Ex.P.1 is the copy of legal notice dated 27.10.2008, issued by 3rd defendant; Ex.P.2 is the certified copy of the order sheet in O.S.No.8586/2005; Ex.P.3 is the certified copy of decree passed in O.S.No.8586/2005; Ex.P.4 is the certified copy of the order sheet in O.S.No.2397/2008; Ex.P.5 is the copy of 14 O.S.No.7489/2008 notice dated 22.02.2008, issued to defendants No.1 & 2; Exs.P.6 to P.8 are the postal acknowledgement cards; Ex.P.9 is the copy of reply notice dated 27.07.2008 issued by the advocate for the 3rd defendant; Ex.P.10 is the copy of notice dated 18.08.2008 issued to the advocate for the 3rd defendant; Ex.P.11 is the copy of notice dated 20.10.2008 issued to defendants No.1 & 2; Ex.P.12 is the copy of letter dated 22.12.2008 issued to defendants No.1 & 3 and Ex.P.13 is the certified copy of judgment passed by XXXVII Addl. City Civil & Sessions Judge, Bengaluru City, in O.S.No.2397/2008, dated 23.02.2013.
15. On the other hand, the defendant No.3 reiterating the contents of written statement supporting her case disputing the claim of plaintiff, has deposed as D.W.1 and placed reliance on the documents at Exs.D.1 to D.7. Ex.D.1 is the certified copy of letter dated 17.07.2014 issued to BBMP; Ex.D.2 is the certified copy of notice dated 22.10.2008 issued by BBMP, Chickpet Sub-Division; Ex.D.3 is the sanctioned plan; Exs.D.4 & D.5 are the certified copies of application and objections in HRC No.240/2013 and Exs.D.6 & D.7 15 O.S.No.7489/2008 are the certified copies of orders and award passed by the Learned Chief Judge, Court of Small Causes at Bengaluru, in HRC No.240/2013.
16. Admitted facts are that the plaintiff's father by name Parameshwar was a tenant of the suit premises and his landlord the then was one A.R.Anantha Raman. His eviction petition i.e., HRC No.2595/1986 was disposed of on 30.09.1991 and the prayer for self- occupation for bonafide need was rejected and for arrears of rent was allowed. Entire arrears of rent were paid by the plaintiff's father at the rate of Rs.75/- per month. On the death of landlord i.e., on 24.03.1993, his daughter A.R.Lalitha became landlady of plaintiff's father and thereafter as per agreed terms with the plaintiff, she continued the plaintiff as tenant of suit premises. In the year 1995, she sold the suit property (tenanted property) to Mohammed Zia Ulla. He sold it to present defendant No.3 / Ms. Padma K. Bhat. P.W.1 has stated that plaintiff using it for his residential purpose and performing pooja; worshiping of God and Goddesses by keeping deities. As 16 O.S.No.7489/2008 increase in number of worshippers, a registered body was formed, etc.
17. But disputed aspect is the notice to be considered as matter in issue. The proposed act of the defendants No.1 & 2, who want to proceed on the bases of said notice was to demolish the tenanted premises belonging to the defendant No.3. D.W.1 stated that as the premises owned by her which include the suit property being in a dilapidated condition and dangerous to inmates and the public, she has proceeded with and the defendants No.1 & 2 having power to take necessary action, to permit her to demolish her property and thus action taken by her and the defendants No.1 & 2 is with due process of law. Apart from this, she had filed HRC petition against the plaintiff and eviction order was passed and that she has availed the course of law to evict the plaintiff.
18. The defendants No.1 & 2 Statutory Authority are established under KMC Act and they shall discharge their duty and exercise the power as per law. Because the defendant No.3 has approached the defendant No.1, the Commissioner stating the 17 O.S.No.7489/2008 building is in a dilapidated condition. In the said tenanted premises being used by plaintiff as occupant under the defendant No.3. There is serious dispute between them for vacating of premises and HRC No.240/2013 was filed only after this suit, which is of the year 2008. So, the defendant No.1 ought to have follow the procedure and would have been taken due steps as contemplated under section 338 of KMC Act, as this particular case falls with Section 338 of KMC Act. It reads thus:
"338. Building unfit for human habitation. -
(1) If any building or portion thereof, intended for or used as a dwelling place appears to the Commissioner to be unfit for human habitation he may apply to the Standing Committee to prohibit the further use of such building for such purpose, and the Standing Committee may, after giving the owner and occupiers thereof a reasonable opportunity of showing cause why such order should not be made, make a prohibitory order as aforesaid.
(2) When any such prohibitory order has been made, the Commissioner shall communicate the purport thereof to the owner and occupier of the building and on expiry of such period as is specified in the notice, not being less than thirty days after the service of the notice, not being less than thirty days after the service of the notice, no owner or occupier shall use or suffer it to be used for human habitation until the Commissioner certifies in writing that the causes rendering it unfit for human habitation have been removed to his satisfaction or the Standing Committee withdraws the prohibition.18 O.S.No.7489/2008
(3) When such prohibitory order has remained in operation for three months, the Commissioner shall report the case to the Standing Committee which shall thereupon consider whether the building should not be demolished. The Standing Committee shall give the owner not less than thirty days, notice of the time and place at which the question will be considered and the owner shall be entitled to be heard when the question is taken into consideration.
(4) If upon such consideration the Standing Committee is of opinion that the building has not been rendered fit for human habitation and that steps are not being taken with due diligence to render it so fit and that the continuance thereof is a nuisance or dangerous injurious to the health of the public or to the inhabitants of the neighbourhood, it shall record a decision, to that effect with the grounds of the decision, and the Commissioner shall, in pursuance of the said decision by notice, require the owner to demolish the building.
(5) If the owner undertakes to execute forthwith the works necessary to render the building fit for human habitation and the Commissioner considers that it can be so made fit, the Commissioner may postpone the execution of the decision of the Standing Committee, for such time not exceeding six months, as he thinks sufficient for the purpose of giving the owner an opportunity of executing the necessary works."
19. In the present case, the defendants No.1 & 2 have not contested the suit of the plaintiff and they have not produced any materials to show that the said notice under dispute was in compliance of section 338 of the Act. Even defendant No.3 has not 19 O.S.No.7489/2008 made it clear that such due procedure was followed by the defendant No.1, Commissioner taking the matters before the Standing Committee established under statute (KMC Act) and taken such order from that forum to issue notice or otherwise to follow the due procedure under section 338 of the Act. In the absence of such evidence being failed to place on record and the conduct of defendants No.1 & 2 in not effectively contesting the suit, etc., give implication that no such procedure has been followed by defendants No.1 & 2 and proceeded only on the basis of representation of defendant No.3 about the dilapidated condition of her building, directly issued the notice to defendant No.3 through whom the plaintiff can be evicted from the suit property. So, it is violation of the due procedure to be followed by the defendants No.1 & 2.
20. No doubt the defendant No.3 has rightly brought on record about the condition of the suit tenanted premises of plaintiff by placing relevant documents and also bringing certain admission from the mouth of P.W.1, to believe that it is in a dilapidated condition. But defendant No.3 has rightly approached defendants 20 O.S.No.7489/2008 No.1 & 2. But these defendants specifically BBMP represented by Commissioner (defendant No.1) shall follow the said requirement under section 338 of the Act. Hence, plaintiff can challenge the impugned notice to demolish the suit building, since he was not given an opportunity as per section 338 of the Act, of being heard. Said notice was issued to the defendant No.3 and not to the plaintiff, who is actual occupant of the suit tenanted property. The plaintiff certainly is entitled of being heard prior to issuance of notice to demolish the suit building. But it cannot be said that it was in collusion with defendants No.1 & 2. It is duty of defendants No.1 & 2 on receiving the representation of defendant No.3 and follow the due procedure of law. Defendant No.3 has genuine case to be place it before the Standing Committee of BBMP, Bangalore, and that she has availed recourse of law to evict the plaintiff, from the tenanted premises, who is enreaching by occupying such a old and dilapidated building by paying only Rs.75/- per month since 40 years. He (P.W.1) states that at the time of taking it on lease, it was measuring 55 X 26 feet and now claiming 26 feet East-West and 70 feet North-South, consisting of ground floor and first floor. 21 O.S.No.7489/2008
21. However, the plaintiff has avoiding to admit the condition of tenanted building in his occupation. His evidence during cross-examination reveals that, he does not know what was the age of said building when they first occupided i.e., by his father. When he continued it and duration at the time of his evidence was 40 years old. During the year 1974, the tenanted property was owned by Narasimhamurthy from whom his father took it on rental of Rs.75/- per month. He occupied it in 1970. Though he denied that he did not pay the rent. But he deposed that recently he did not pay it i.e., for a period of 3 years he failed to pay the rent, which reveals his default in paying rent. It is suggested that the Southern and Western side of building in which plaintiff is one of the tenant, was fallen down and building was built with mud. He denied it; But stated that it was a " UÁgÉ " (cement plastering) building and that it was whitewashed by Lalitha, the then landlady. But he states that defendant No.3 did not do the same since 2005. It is very important to note that there were 8 houses in 1970 and all these are fell down except the suit tenanted premises of plaintiff. P.W.1 has not denied it. He states that his premise is only the premise now in existence 22 O.S.No.7489/2008 and denied that entire building was of 100 years old one and he admits clearly that no one of his the then landlords and landlady did not construct any building. It refers to the building that was and is in existence since 1970, and it was / is as it is. No improvement, major repairs, or construction renovating it, etc., were taken place at lease from 1970, the known year. The relevant portion of cross- examination of P.W.1 reads thus:
"1970gÀ°è CzÀgÀ°è ¸ÀĪÀiÁgÀÄ 8 ªÀÄ£ÉUÀ½ zÀݪÀÅ. FUÀ ¤ªÀÄä ªÀÄ£É ©lÄÖ G½zɯÁ è ªÀÄ£ÉUÀ¼ÀÄ ©¢ÝªÉ JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ FUÀ C°è £ÀªÀÄä ªÀÄ£É MAzÉà EzÉ. G½zÀ ªÀÄ£ÉUÀ¼À £ÀÄß ªÀÄlÖ ªÀiÁrzÁÝgÉ. zÁªÁ ¸ÀéwÛ£À CPÀÌ¥ÀPÀÌ ©°ØAUïì EªÉ. C°è PÉ®ªÀÅ CAUÀrUÀ½ªÉ. zÁªÁ ¸ÀévÀÄÛ 100 ªÀµÀð ºÀ¼ÉAiÀÄzÀÄ JA§ÄzÀÄ ¸ÀjAiÀÄ®è. 70£Éà ¸Á°¤AzÀ zÁªÁ ¸ÀéwÛ£À PÀlÖqÀzÀ ªÀiÁ°ÃPÀgÀÄ AiÀiÁªÀÅzÉà PÀlÖqÀ ¤«Äð¹®è ¤d,"
Apart from this according to him, the building was about 60 to 65 years old building. P.W.1 deposed in this regard that -
"£À£Àß ¥ÀæPÁgÀ zÁªÁ PÀlÖqÀ ¸ÀĪÀiÁgÀÄ 60 jAzÀ 65 ªÀµÀð ºÀ¼ÉAiÀÄzÁVgÀ¨ÉÃPÀÄ,"
Even he has deposed before the HRC Court which is duly considered in the judgment passed in HRC petition, Ex.D.6, that the plaintiff has deposed that the building was about 65 to 70 23 O.S.No.7489/2008 years old building. Thus, it indicate and support the case of the defendant No.3 that it is an old building and its dilapidated condition cannot be ignored. Even it is considered the relevant factors and come to the conclusion about its dilapidated condition and it is evident from the certified copy of judgment at Ex.D.6 and eviction order was passed against the plaintiff on the ground of section 27(1)(r) of Karnataka Rent Act.
22. Defendant No.3 has given application for approval of building plan and licence. P.W.1 is unaware of it. But denied that, the defendants No.1 & 2 visited the suit property for inspection and opined that it is an old building and in a dilapidated condition and needs demolition and plaintiff was present at that time. Then that being the case, at least in the present case the plaintiff ought to have placed any materials to show that the tenanted building is fit building for human dwelling; It is his oral say that he produced the records in that regard. But no records are forthcoming. Apart from this, if it is not in a dilapidated and that it is in good and habitable condition, he got it surveyed it through the competent expert and he 24 O.S.No.7489/2008 ought to have produced such report of expert and adduced evidence. But not done so. Nor he has produced the evidence, what steps was taken before the competent authority i.e., the Standing Committee by putting forth the grievance. The licence and the sanction of building plan submitted by defendant No.3 for approval and grant were withheld, because of the reason that the plaintiff being in occupation of building, which is in a dilapidated condition and hence the notice has been issued to the defendant No.3.
23. The undertaking of defendant No.3 and the compromise decree passed in favour of plaintiff, no doubt, is binding upon the defendant No.3, but she has proceeded for eviction of plaintiff by availing to recourse to law. She filed HRC petition and approached the defendants No.1 & 2 for sanction plan and licence. It is not the case of the plaintiff that defendant No.3 has violated the terms of the decree. So, alleged collusion and interference with peaceful possession and enjoyment of plaintiff over the tenanted premises and the injunctory relief claimed against the defendant No.3 do not 25 O.S.No.7489/2008 sustain. Already injunctory relief obtained by plaintiff against defendant No.3 is prevailing. Plaintiff has not come with the case that defendant No.3 has violated it. If, it is so, the plaintiff cannot entertain the suit against the defendant No.3 in that regard. Apart from this, defendant No.3 has proceeded with due process of law as discussed above. So grant of injunctory relief against defendant No.3 does not arise. So far as defendants No.1 & 2 is concerned as held above, the plaintiff has proved that the defendants No.1 & 2 have failed to follow the due procedure, taking the plaintiff and defendant No.3 to the special forum for the consideration of such dispute as KMC Act empowers the Standing Committee to proceed with the case as per law. So direct issuing of notice dated 22.10.2008 to defendant No.3 is liable to be declared as null and void notice. However issuing the notice by defendant No.3 on 27.10.2008 or earlier notice to plaintiff is not in dispute. Apart from this, it is duly considered how the plaintiff is avoiding the claim of plaintiff from his ejectment from the suit property taking advantage of meager rental amount of Rs.75/- per month and even it is in a dilapidated condition. So, the notice issued by defendant No.3 to 26 O.S.No.7489/2008 plaintiff for the above reason not illegal. But the issue of notice by defendant No.2 to the defendant No.3, being not with due procedure and it is illegal, that may result into demolition of building without being heard the plaintiff. Defendants No.1 & 2 may proceed on the basis of said notice, if defendant No.3 did not comply it, to demolish the same. But it is illegal interference of defendants No.1 & 2, basing on the notice which is not in accordance with law. So, right to challenge it accrued to the plaintiff against defendants No.1 & 2 only. So, relief claimed to declare the said notice as illegal and injunctory relief against defendants No.1 & 2 are sustainable.
24. Hence, for the above discussion and conclusion arrived at on the facts and circumstances of this case, the plaintiff is entitled for these reliefs against defendants No.1 & 2 only. Any grievance against defendant No.3, plaintiff has to agitate before the appropriate forum by approaching the same, with due process of law. Suit against the defendant No.3 has to be dismissed. So, the defendants No.1 & 2 shall not act upon the said notice. But follow the due procedure. However, this order does not come in the way 27 O.S.No.7489/2008 of defendant No.3 pertaining to her availment of recourse to law for ejectment of plaintiff under "Rent Act". Hence, in view of the above discussion, having regard to the facts and circumstances of the case, Issue No.1 is answered in the 'Affirmative'; Issue No.2 & Addl. recasted Issue No.1 are answered 'Partly in the Affirmative'.
25. Issue No.3:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
O R D E R Suit of the plaintiff, is hereby partly decreed.
The notice No. AEE(C) Pr 346/2008-2009, dated 22.10.2008 issued by the 2nd defendant, is hereby declared as opposed to law as it is without due compliance under section 338 of KMC Act.
Consequently, the defendants No.1 & 2 are hereby restrained from interfering with the plaintiff's peaceful possession over the suit property, without due process of law. However, the defendant No.1 shall comply as required under section 338 of KMC Act. Suit of the plaintiff against defendant No.3, is hereby dismissed.28 O.S.No.7489/2008
Parties are directed to bear their own costs. Draw up the decree accordingly.
(Dictated to the Judgment Writer, transcribed by him, corrected and then signed and pronounced by me in the open court on this the 30th day of July 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
PW.1 Suresha List of the documents marked for the plaintiff:
Ex.P.1 Copy of legal notice dated 27.10.2008 issued by 3rd defendant.
Ex.P.2 Certified copy of the order sheet in
O.S.No.8586/2005.
Ex.P.3 Certified copy of decree passed in
O.S.No.8586/2005.
Ex.P.4 Certified copy of the order sheet in
O.S.No.2397/2008.
Ex.P.5 Copy of notice dated 22.02.2008 issued to
defendants No.1 & 2.
Exs.P.6 to P.8 Postal acknowledgement cards.
Ex.P.9 Copy of reply notice dated 27.07.2008 issued by
the advocate for the 3rd defendant.
29 O.S.No.7489/2008
Ex.P.10 Copy of notice dated 18.08.2008 issued to the
advocate for the 3rd defendant.
Ex.P.11 Copy of notice dated 20.10.2008 issued to
defendants No.1 & 2.
Ex.P.12 Copy of letter dated 22.12.2008 issued to
defendants No.1 & 3.
Ex.P.13 Certified copy of judgment passed by XXXVII
Addl. City Civil & Sessions Judge, Bengaluru City, in O.S.No.2397/2008, dated 23.02.2013. List of the witnesses examined for the defendants:
D.W.1 Ms. Padma K. Bhat List of the documents marked for the defendants:
Ex.D.1 Certified copy of letter dated 17.07.2014 issued to BBMP.
Ex.D.2 Certified copy of notice dated 22.10.2008 issued by BBMP, Chickpet Sub-Division.
Ex.D.3 Sanctioned plan.
Exs.D.4 & D.5 Certified copies of application and objections in HRC No.240/2013.
Exs.D.6 & D.7 Certified copies of orders and award passed by the Learned Chief Judge, Court of Small Causes at Bengaluru, in HRC No.240/2013.
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.30 O.S.No.7489/2008
Judgment pronounced in the open Court (vide separately) ORDER Suit of the plaintiff, is hereby partly decreed.
The notice No. AEE(C) Pr 346/2008-2009, dated 22.10.2008 issued by the 2nd defendant, is hereby declared as opposed to law as it is without due compliance under section 338 of KMC Act.
Consequently, the defendants No.1 & 2 are hereby restrained from interfering with the plaintiff's peaceful possession over the suit property, without due process of law.
However, the defendant No.1 shall comply as required under section 338 of KMC Act.
Suit of the plaintiff against defendant No.3, is hereby dismissed.
Parties are directed to bear their own costs.
Draw up the decree accordingly.
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.31 O.S.No.7489/2008 32 O.S.No.7489/2008 33 O.S.No.7489/2008