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2023 Supreme(Online)(KAR) 20809
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CRP No. 369 of 2022
C/W MFA No. 5856 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CIVIL REVISION PETITION NO. 369 OF 2022 (IO) c/w
MISCELLANEOUS FIRST APPEAL NO. 5856 OF 2022 (CPC)
IN CRP No.369/2022
BETWEEN:
EMBASSY PRISTINE APARTMENT OWNERS ASSOCIATION
R/AT 32/6/1, SARJAPURA ORR ROAD,
IBBLUR, BELLUNDUR
BANGALORE 560 103
REPRESENTED BY ITS PRISIDENT
RAJEEV MATHUR
…PETITIONER
(BY SRI. SHASHI KIRAN SHETTY, SENIOR ADVOCATE FOR
SRI.A MAHESH CHOWDHARY.,ADVOCATE)
AND:
1.
A R NANDAKUMAR
S/O A V RAMA REDDY
AGED ABOUT 66 YEARS
R/A 454, 15TH CROSS
LAKKASANDRA
BENGALURU 560 030
2.
BRUHAT BENGALURU MAHANAGARA PALIKE
(BCC), RESPONDNET NO.2
NR SQUARE, BENGALURU 560002
RERPESNETED BY ITS COMMISSIONER
MR TUSHAR GIRI NATH
…RESPONDENTS
(BY SRI. RAJASHEKAR S., ADVOCATE FOR R1
SRI. RAMU SREEKANTAIAH, ADV. FOR R2)
Digitally signed
by VANDANA S
Location: High
Court of
Karnataka
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CRP No. 369 of 2022
C/W MFA No. 5856 of 2022
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF
CPC AGAINST THE ORDER DATED 22.03.2022 PASSED ON IA No.1/21
AND 1/22 IN OS No.25265/2021 ON THE FILE OF THE LXXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, CITY CIVIL COURT,
BENGALURU (CCH 75) DISMISSING THE IA No.1/21 AND 1/22 FILED
UNDER ORDER VII RULE 11(a) AND (d) OF CPC FOR REJECTION OF
PLAINT.
IN MFA No.5856/2022
BETWEEN:
SRI A R NANDAKUMAR
AGED 67 YEARS
S/O A V RAMA REDDY
R/AT NO 454, 15TH CROSS,
LAKKASANDRA,
BANGALORE 560030
…APPELLANT
(BY SRI.S.RAJASHEKAR, ADVOCATE)
AND:
1.
THE BRUHATH BENGALURU MAHANAGARA PALIKE
(BCC) BBMP
BENGALURU 560002
REP BY ITS COMMISSIONER
2.
EMBASSY PRESITNE APRTMENTS OWNERS ASSOCIATION
REP BY ITS PRESIDENT
NO 32/6/1, SARJPURA ORR ROAD
IBBLUR, BELLUNDUR
BANGALORE 560103
…RESPONDENTS
(BY SRI. JAGADEESWARA N R.,ADVOCATE FOR R1
SRI. SHASHIKIRAN SHETTY, SENIOR ADVOCATE FOR
SRI.A.MAHESH CHOWDHARY, ADV. FOR C/R2)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 10.06.2022 PASSED ON I.A. NO. 1/2021 IN O.S.NO.
25265/2021 ON THE FILE OF THE LXXIV ADDITIONAL CITY CIVIL AND
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CRP No. 369 of 2022
C/W MFA No. 5856 of 2022
SESSIONS
JUDGE,
MAYOHALL
UNIT,
BENGALURU
(CCH-75),
DISMISSING I.A. NO.1/2021 FILED UNDER ORDER 39 RULES 1 AND 2 OF
CPC.
THIS CRP AND MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-
Both MFA No.5856/2022 and CRP No. 369/2022 arise out of
O.S.No.25265/2021 on the file of the LXXIV Addl.City Civil and
Sessions Judge, Mayo Hall Unit, Bangalore.
The
said
suit
was
instituted
by
the
plaintiff,
A.R.Nandakumar vs. the BBMP – 1st defendant and Embassy
Pristine Apartment Owners; Association – 2nd defendant. In the
said suit, plaintiff has sought for the following reliefs:-
(1) By an order of permanent injunction, restraining
the defendant, its agents, men or anybody under or through
it from in any way demolishing any portion of the schedule
building and or in any way interfering with the plaintiff’s
construction activities upon the schedule building and
(1a) To declare the alleged provisional order issued
under Sec.321(1) and (2) of KMC Act dated 18/12/2020 and
the Confirmation order issued under Sec.321(3) of KMC Act,
1976 dated 1/2/2021 as illegal, null and void and not binding
upon the plaintiff.
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(1b) By an order of permanent injunction, restraining
the defendant No.2, their agents, men or anybody under or
through them from in anyway demolishing or damaging any
portions of the suit schedule property or interfering with
plaintiff’s peaceful possession of the suit schedule property.
(2) Grant such other relief/s as this Hon’ble Court
deems fit, in the circumstances of the case, including the
costs of the proceedings in the ends of justice.
3. The plaintiff filed an application for temporary injunction
restraining the 1st defendant – BBMP from demolishing the suit
building or any portion thereof or in any way interfering with the
construction of the suit building till disposal of the suit. The said
application having been opposed by the respondents – defendants,
the trial court proceeded to pass the impugned order dismissing the
said application. Aggrieved by the impugned order, plaintiff is
before this Court by way of MFA No.5856/2022.
4. So also, the 1st defendant – BBMP filed an application
under Order 7 Rule 11 CPC seeking rejection of the plaint.
Similarly, 2nd defendant – Association also filed an application
under Order 7 Rule 11 CPC seeking rejection of the plaint. Both the
applications having been opposed by the plaintiff, the trial court
proceeded to pass the impugned common order rejecting both the
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applications. Aggrieved by the said impugned order, 2nd defendant
has preferred CRP No.369/2022.
5. In addition to reiterating the various contentions urged in
the petition and referring to the material on record, learned Senior
counsel for the petitioner – 2nd defendant in CRP No.369/2022
submits that in view of Section 443-A of the Karnataka Municipal
Corporations Act, 1976 and as such, the impugned order passed
by the trial court deserves to be set aside and the plaint is to be
rejected. It is also submitted that the impugned order passed by the
trial court rejecting the application for temporary injunction filed by
the plaintiff, which is assailed in MFA No.5856/2022 does not
warrant interference by this Court. It is further submitted that if
CRP No.369/2022 is allowed and the plaint is rejected, by
relegating the plaintiff to approach the appellate authority / forum
within a stipulated time frame, the petitioner – 2nd defendant would
not interfere with the plaintiff’s possession or enjoyment of the suit
schedule property nor demolish any portion thereof.
6. Per contra, learned counsel for the appellant – plaintiff in
MFA No.5856/2022 who is also the respondent in CRP
No.369/2022 submits that while the order passed by the trial court
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refusing injunction deserves to be set aside, the order impugned in
CRP No. 369/2022 deserves to be confirmed.
7. Though several contentions have been urged by both
sides in support of their respective claims, in the light of Section
443-A of the KMC Act, 1976 and the submissions made at the bar,
I deem it just and appropriate to dispose of MFA No.5856/2021 as
well as allow CRP No.369/2022 and dispose of the suit in
O.S.No.25265/2021 by
