IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No. 7331/2016 (CPC) BETWEEN:
DR. K. M. MUNIVENKATAPPA, SON OF LATE DORAJI MUNIYAPPA, AGED ABOUT 81 YEARS, RESIDING AT:
NO.421, 9TH MAIN, 1ST CROSS, H.A.L. II STAGE, INDIRANAGAR, BANGALORE-560 038.
... APPELLANT (BY SRI DEVENDRA GOWDA R. R., ADVOCATE) AND:
1. KRISHNA REDDY SON OF SRI. VENKATA RAMI REDDY, AGED ABOUT 55 YEARS, 2. SMT. V. V. GOWRI, WIFE OF SRI. VENKATA KRISHNA REDDY, AGED ABOUT 50 YEARS, RESPONDENTS 1 AND 2 ARE RESIDING AT NO.137, 3RD CROSS, 4TH MAIN, HAL 3RD STAGE, BANGALORE-560075.
3. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R. SQUARE, BANGALORE-560002.
4. THE JOINT DIRECTOR (EAST ZONE) BRUHAT BANGALORE MAHANAGARA PALIKE (EAST), BANGALORE-560001.
5. THE ASST. DIRECTOR OF TOWN PLANNING (EAST CIRCLE) BRUHAT BANGALORE MAHANAGARA PALIKE, PUBLIC UTILITY BUILDING, MAYOHALL, BANGALORE-560 001.
6. THE ASSISTANT EXECUTIVE ENGINEER (AEE) JEEVAN BHIMA NAGAR WARD, BRUHAT BANGALORE MAHANAGARA PALIKE (EAST), INDIRANAGAR, BANGALORE-560 001. ... RESPONDENTS (BY SRI A. MADHUSUDHANA RAO, ADVOCATE FOR R1 & R2; SRI MOHANKUMAR K.V., ADVOCATE FOR R3 TO R6) … THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 104 OF CPC, AGAINST THE ORDER DATED 07.10.2016 PASSED ON I.A.NO.2 IN O.S.NO.25267/2016 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL & SESSIONS JUDGE, MAYO HALL, BENGALURU, DISMISSING I.A.NO.2 FILED UNDER ORDER 39 RULES 1 & 2 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the plaintiff aggrieved by the order dated 7th October, 2016 made in O.S.No. 25267/2016 dismissing the application- I.A.2 filed by him for temporary injunction.
2. It is the case of the plaintiff before the trial Court that suit ‘A’ schedule property was allotted to him by the then City Improvement Trust Board on payment of entire value of the site and the BDA had delivered the possession of the said site in his favour subsequently, executing a registered sale deed dated 18.1.1993. After obtaining the licence and sanctioned plan on 13.2.2012 from defendant No.6, the plaintiff constructed a residential flat consisting of tilt, ground, first, second, third floors and terrace. It is his further case that defendant Nos. 1 and 2 appear to have produced licence and sanctioned plan dated 5.11.2013 from defendant No.5 for construction of residential building on schedule ‘B’ property which had lapsed on 4.11.2015 and it was not renewed. He further contended that as per the sanctioned plan, defendant Nos. 1 and 2 have to leave required area for construction on the suit ‘B’ property, tilt floor exclusively for car parking and two wheeler parking with lift and stair case. Without leaving the prescribed set back area, they have proceeded to construction. Therefore, he has filed a suit for permanent and mandatory injunction. He had also filed an I.A. for temporary injunction restraining defendant Nos. 1 and 2 from putting up construction on the set back area on all four sides of the suit ‘B’ schedule property reiterating the plaint averments.
3. Defendants filed their written statement and also objections to I.A. denying the plaint averments contending that defendant Nos.1 and 2 are the owners of the suit schedule ‘B’ property and construction is made in terms of the sanctioned plan accorded by the 6th defendant and is strictly in accordance with law. The trial Court considering the application and objections, by the impugned order dismissed the application. However, defendant Nos. 1 and 2 were directed to construct their building over suit ‘B’ schedule property in accordance with the approved/sanctioned plan approved by the BBMP. Hence, this appeal is filed by the plaintiff.
4. The defendants have not preferred any appeal against the direction issued by the trial Court to construct their building in accordance with the sanctioned plan.
5. I have heard the learned Counsel for the parties to the lis.
6. Sri R.B. Devendra Gowda, learned Counsel appearing for the appellant-plaintiff reiterating the plaint averments contended that the defendants in violation of the sanctioned plan have proceeded to construct the building which has not been considered by the trial Court. He also contended that defendant Nos. 1 and 2 also have filed separate suit against the BBMP in O.S.No.2131/2016 and by playing fraud on the Court, they have obtained an injunction order against the 3rd defendant, for which the BBMP is not taking any action against them. He further contended that in terms of the sanctioned plan, defendant Nos. 1 and 2 are required to construct the tilt floor exclusively for car parking and two wheeler parking with lift and stair case, ground floor for one bed room house, first and second floors and one duplex house as the approval is only for two dwelling units . The said aspect of the matter has not been considered by the trial Court. Hence, he sought to allow the appeal.
7. Sri Madhusudan Rao, learned Counsel for respondent Nos. 1 and 2 herein sought to justify the impugned order passed by the trial Court strenuously contending that there is no dispute with regard to the ownership of the suit ‘B’ schedule property by the respondents-defendants. The trial Court considering the entire material on record dismissed the application on the ground that the plaintiff has failed to prove prima facie case to grant injunction and also on the ground that it is for the BBMP to take action against defendant Nos. 1 and 2 for violation of sanctioned plan, if any, in respect of the suit ‘B’ schedule property. He also contended that the suit itself is not maintainable in view of the law laid down by this Court in the case of Dr.K. Panduranga Nayak –vs- Smt. Jayashree reported in AIR 1990 Kar 236.
8. In view of the above rival contentions urged by the learned Counsel for the parties, the only point that arises for consideration in the present appeal is:
Whether the trial Court is justified in dismissing I.A.2 filed by the plaintiff for temporary injunction in the facts and circumstances of the present case?
9. It is the case of the plaintiff that he is the owner of suit ‘A’ schedule property. It is also not in dispute that defendant Nos. 1 and 2 are the owners of the suit ‘B’ schedule property. The only contention raised by the learned Counsel for the plaintiffs is that defendants in violation of the sanctioned plan have proceeded to put up the construction. It is also not in dispute that though BBMP was party to the suit as defendant Nos. 3 to 6, has not filed any written statement but Sri Madhusudan Rao, learned Counsel for respondent Nos. 3 to 6 submits during his course of arguments that an order has been passed under Section 321 of the Karnataka Municipalities Act.
10. It is not in dispute that the suit ‘B’ schedule property belongs to defendant Nos. 1 and 2. The only grievance made by the plaintiff is that they have violated the sanctioned plan, as rightly observed by the trial Court and it is for the BBMP to take action in accordance with law.
11. Learned Counsel for respondent Nos. 3 to 6 submits that they have already passed an order exercising powers under Section 321(1)(2) and (3) of the Karnataka Municipalities Act which is the subject matter of appeal before the Tribunal in Appeal No.1060/16 and the Tribunal while issuing notice to the respondents has granted an interim order of stay as prayed for.
12. In that view of the matter, the point-raised is answered in the affirmative holding that the trial Court is right in dismissing I.A.2 filed by the plaintiff and it is for defendants-3 to 6 to take action against defendant Nos. 1 and 2, if they have violated sanctioned plan in accordance with law.
13. With the above observations, miscellaneous first appeal is disposed of.
Sd/-
Judge Nsu/-