IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.10432/2019 (GM-CPC) BETWEEN:
1. Smt. S. Sowbhagya, W/o. M. Anjanappa, Aged about 51 years, 2. Smt. S.A. Ullahasini, D/o. M. Anjanappa, W/o. Naveen.M, Aged about 31 years, Both are residing at 971/9, 1st Floor, 15th ‘A’ Cross, ‘A’ Sector, Yelahanka New Town, Bengaluru-560 064. . . . Petitioners (By Sri. R.S. Ravi, for Sri. Roopesha.B, Advocates ) AND:
Smt. Nagasuma, W/o. M. Gopinath, Aged about 47 years, R/at No. 427/8, Sri. Gangadhamma, 7th ‘A’ cross, 12th ‘A’ Main, ‘A’ Sector, Yelahanka New Town, Bengaluru-560 064. … Respondent (By Sri. K.K. Vasanth, for Sri. Vasanth V. Naik, Advocates) This writ petition is filed under Article 226 of the Constitution of India praying to quash the impugned order on IA dated 18.02.2019 passed in O.S.No.26145/2018 vide Annexure-K, pending before the XXVI Additional City Civil and Session Judge, Mayohall Unit, Bengaluru (CCH-20), allowing the application filed by the plaintiff/respondent under Section- 151 of Code of Civil Procedure.
This writ petition coming on for preliminary hearing, this day, the Court made the following:
O R D E R The petitioners, who are defendants-1 & 2 in O.S.No.26145/2018 pending on the file of the XXVI Additional City Civil & Sessions Judge, Mayo Hall (CCH-20) Bengaluru, have preferred this writ petition, seeking to quash the order dated 18.02.2019 (Annexure-K) passed by the trial Court. By the impugned order, the learned judge of the Court below has allowed the interlocutory application filed by the plaintiff- respondent and directed the jurisdictional police to assist the plaintiff for implementation/enforcement of the interim order of temporary injunction granted on 21.12.2018.
2. Succinctly stated, the facts of the case are that the plaintiff-respondent herein had instituted a civil suit against the defendants-petitioners herein with the following prayers:
a) Mandatory injunction directing the defendants to demolish the unlawful construction made in violation of the sanction plan on the schedule property.
b) In the event of the defendants failing to demolish the same, the plaintiff be authorized to demolish the unlawful construction on the schedule property.
c) For permanent injunction restraining the defendants from putting up further construction on the schedule property made in violation of the sanction plan.
The trial Court, by order dated 21.12.2018 has granted temporary injunction restraining the petitioners herein from putting up construction in the suit property in violation of the sanctioned plan and building bye-laws, till the disposal of the suit. Thereafter, the plaintiff filed an application under Section 151 of CPC., seeking direction to the jurisdictional police to implement the order of temporary injunction dated 21.12.2018, on the ground that in spite of complaint lodged by her, the jurisdictional police have failed to take action against the petitioners. The trial Court, passed the impugned order dated 18.02.2019, which reads as hereunder:
“The jurisdictional police are hereby directed to aid the plaintiff in implementation/enforcement of the interim order of Temporary injunction granted by this Court on IA No.1 dated 21.12.2018, if necessary by taking assistance from the Asst. Executive Engineer of the BBMP of the ward concerned”.
Challenging the said order, the defendants-petitioners are before this Court.
3. I have heard the learned counsel for the parties to the lis.
4. Sri. R.S. Ravi, learned counsel for the petitioners submits that initially, at the instance of the respondent- plaintiff, the Bruhat Bengaluru Mahanagara Palike (‘BBMP’ for short) had issued a notice to the defendants-petitioners herein under Section-321 (1) of the Karnataka Municipalities Act and passed final order, directing the petitioners herein to demolish some portion of the construction made over the suit property. Challenging the said order, the petitioners have preferred an appeal before the Karnataka Appellate Tribunal in Appeal No.578/2018 and the Tribunal, passed an interim order dated 03.09.2018 and thereby stayed the execution of the order passed by the BBMP. When the matter was pending adjudication before the Appellate Tribunal, the plaintiff- respondent herein had instituted a civil suit in O.S.No. 26145/2018 for mandatory injunction to direct the petitioner herein to demolish the unlawful construction made in violation of sanctioned plan. If there is any violation of the temporary injunction, the plaintiff should have filed an application under Order-39 Rule-3A of CPC.
5. He further, contended that the interim order granted by the trial Court was only to the effect that petitioner should not put up construction in the suit property in violation of the sanctioned plan and building bye-law, till the disposal of the suit. Since the petitioners have not violated the sanctioned plan, question of demolition with the police assistance does not arise. On these grounds, he prays for setting aside the impugned order by allowing the writ petition.
6. Per contra, Sri. K.K. Vasanth, learned counsel for the caveator-respondent submits that as, the BBMP authorities have not considered the representation made by the respondent, the learned judge of the trial Court was justified in passing the impugned order to help the plaintiff in implementing the temporary injunction granted by the trial court. Hence, sought for dismissal of the writ petition.
7. Having heard the learned counsel for the parties, indisputably, it is seen that the petitioners and the respondent are adjacent residents. As could be seen from the averments made in the plaint, during November 2017, the petitioners started digging for laying foundation and during 2nd week of January 2018 the plaintiff found that foundation was not in accordance with plan sanctioned by the BBMP and hence, she gave written complaint to BBMP on 16.01.2018. Further, it was averred therein that the authorities have initiated proceedings under Section-321 of the KMC Act, against which, the defendants-petitioners herein have preferred an appeal before the KAT in Application No.578/2018 wherein, the order passed by the BBMP., has been stayed. Further, the records discloses that the respondent-defendant also filed a writ petition before this Court in W.P.No.30926/2018 seeking writ of mandamus to direct the petitioners herein to put up the construction in accordance with the sanctioned plan and the same is pending adjudication before this Court.
8. The averments made in the application dated 06.02.2019 filed by the respondent-plaintiff discloses that on 27.01.2019 onwards, the petitioners have started to construct building over the suit property and hence, she gave complaint to the police. The said application was strongly resisted by the petitioners by filing the detailed objections stating that they have not violated the sanctioned plan. Apart from that, the petitioners who are defendants before the Court below have taken specific pleadings that the suit filed by the respondent was not maintainable. If there was violation of temporary injunction granted by the Court, the appropriate remedy/recourse available to the respondent herein was to file an application under Order-39 Rule-2A of CPC. Instead of having recourse to such remedy available in law, the respondent resort to file another application and the learned judge of the trial Court, solely on the basis of the photographs alleged to have produced by the respondent herein, drew an inference that there was violation of sanctioned plan by the petitioners-defendants. Even on careful perusal of the impugned order, it is seen that the temporary injunction granted was to restrain the defendants-petitioners herein from putting up construction in the suit property, in violation of the sanctioned plan and building bye-laws.
9. It is settled law, that initiation of appropriate action against a person who violates sanctioned plan, vest with the statutory authority established by law i.e., BBMP. Admittedly, the BBMP., at the instance of the respondent had already initiated proceedings under the provisions of the Karnataka Municipal Corporation Act, which is now pending adjudication before the Karnataka Appellate Tribunal, in which, the respondent would have filed an application for vacating interim order of stay. Apart from that, the respondent had also recourse to file W.P.No.30926/2018 before this Court. The above proceedings would clearly indicate that plaintiff- respondent herein had initiated three parallel proceedings i.e., before (1) BBMP., the statutory authority, (2) Civil Court and (3) High Court, for the very same cause action, which is not permissible in law. The conduct of the plaintiff-respondent would clearly indicate that she has not approached the court below with clean hands and prima facie an adverse inference can be drawn that she has initiated multiple proceedings against the petitioners only with a view to take personal vengeance. Looking into the totality of the facts and circumstances of the case, this Court is of considered view that the learned judge of the trial Court was not justified in passing the impugned order and the same is liable to be quashed. In this view of the matter, the writ petition deserves to be allowed.
10. Accordingly, writ petition is allowed. The impugned order dated 18.02.2019, passed on IA, by the XXVI Additional City Civil and Sessions Judge at Mayo Hall (CCH-20) Bengaluru in O.S.No.26145/2018 is hereby set aside.
Ordered accordingly.
Sd/- JUDGE Vr