The jurisdiction of a civil court is not ousted by municipal enactments when a suit seeks enforcement of private civil rights, such as easementary interests and structural stability, unless an express statutory bar exists, thereby allowing the court to grant interim relief against unauthorized construction that threatens such rights.

THIS MISCELLANEOUS FIRST APPEAL FILED UNDER ORDER 43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 13.04.2022 PASSED ON I.A.NO.1 IN O.S.NO.647/2022 ON THE FILE OF THE LXIX ADDITIONAL CITY CIVIL AND SESSIIONS JUDGE, BENGALURU, (CCH-70) ALLOWING I.A.NO.1 FILED U/O 39 RULE 1 AND 2 OF CPC.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12.10.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

JUDGMENT

Challenging order dated 13.04.2022 passed on I.A.No.1 by LXIX Addl. City Civil and Sessions Judge, Bengaluru (CCH-70), in O.S.No.647/2022, this appeal is filed by defendants no.1 and 2.

2. O.S.no.647/2022 was filed seeking for declaration that members of plaintiff association are entitled to easementary rights in respect of passage of air and light, right to privacy necessary for full and uninterrupted utilization and enjoyment of their respective apartment units in 'A' schedule property and for permanently restraining defendants from undertaking action in violation of Deed of Declaration and bye-laws and provisions of Karnataka Apartment Ownership Act, 1972 (hereinafter referred to as 'KAO Act' for short) in 'A' schedule property from carrying out illegal construction and for mandatory injunction directing defendants to remove all illegal construction which are not in accordance with sanctioned plan and violate easementary rights of members of plaintiff association etc.

3. Along with plaint, plaintiffs had filed interim application I.A.no.I under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short) for restraining defendants from undertaking any action which were in violation of Deed of Declaration, byelaws and provisions of KAO Act and from carrying out illegal construction as exhibited in documents no.9, 12 and 13 colly in schedule 'C' property in violation of easementary rights of member of plaintiff association. In affidavit filed in support of application, it was stated that plaintiff was an association consisting of members who were apartment owners of Skyline Manor Condominium Residential Apartment Building (hereinafter referred to as 'Apartment Complex' for short) constructed on land bearing municipal nos.7 and 8 (old no.6) Bride Street, Langford Road, Richmond Road, Corporation Ward no.76, Bengaluru, which was 'A' schedule property.

4. It was stated that erstwhile owner 'A' schedule property viz., Mr. Attar Syed Zakir Hussain executed Deed of Declaration dated 12.10.2000, in respect of 'A' schedule property and submitted same under KAO Act and became a member of plaintiff association. Deed contained byelaws regulating conduct of members of plaintiff association inter se and for managing administrative and financial affairs of Apartment Complex. It also provided for management and maintenance of common amenities, facilities and open spaces. It was further stated that President of association was authorized to file suit on its behalf under letter of authorization dated 25.01.2022.

5. It was stated that Apartment Complex was constructed in pursuance of agreement dated 17.07.1997 with Skyline Construction Ltd. Construction company obtained sanctioned plan and building licence from Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as 'BBMP' for short) and constructed Apartment Complex consisting of 12 parking spaces for 12 apartments at three apartments each on ground, first, second and third floors. It was further state