Mr Jai Nath Misra vs Mr Arun Mishra
2022 Latest Caselaw 3312 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                       BEFORE

         THE HON'BLE MR. JUSTICE M.I.ARUN

             R.F.A. NO.621 OF 2018 (INJ)

BETWEEN:

MR. JAI NATH MISRA
COMMODORE I. N., (RETD)
S/O MR. RAM NATH MISRA
AGED 78 YEARS
R/AT NO.464 D
JAL VAYU VIHAR
KALYAN NAGAR
BANGALORE - 560 043                    ... APPELLANT

(BY SMT.PARINA LALLA, ADV. FOR
    SRI. NARENDRADEV H. N., ADV.)

AND:

1.     MR ARUN MISHRA
       S/O MR KEDARNATH MISHRA
       RESIDING AT NO.465 D
       JAL VAYU VIHAR
       KALYAN NAGAR
       BANGALORE-560 043

2.     MRS. PINKY MISHRA
       W/O MR. ARUN MISHRA
       RESIDING AT NO.465 D
       JAL VAYU VIHAR
                          2



     KALYAN NAGAR
     BANGALORE-560043

3.   THE PRESIDENT
     JAL VAYU VIHAR APARTMENT
     OWNERS ASSOCIATION
     JAL VAYU VIHAR
     KALYAN NAGAR
     BANGALORE-560 043

4.   THE COMMISSIONER
     BRUHAT BANGALORE
     MAHANAGARA PALIKE
     HUDSON CIRCLE
     BANGALORE-560 002             ... RESPONDENTS

(BY SRI.RAMESH KUMAR R. V., ADV. FOR R1 & R2;
    SRI. K. ARUN KUMAR, FOR
    CREST LAW PARTNERS ADV. FOR R3;
    SRI. S. N. PRASHANTH CHANDRA, ADV. FOR R4)

      THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 READ WITH ORDER XLI OF THE CODE OF
CIVIL PROCEDURE 1908 AGAINST THE ORDER DATED
01.02.2018 PASSED IN OS NO.5709/2016 ON THE FILE OF
THE LXVI ADDL.CITY CIVIL AND SESSIONS JUDGE,
ALLOWING THE APPLICATION FILED UNDER VII RULE
11(d) OF CPC FOR REJECTION OF PLAINT.

     THIS REGULAR FIRST APPEAL COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                                     3



                           JUDGMENT

Aggrieved by the order passed on the application

filed under Order VII Rule 11 (d) read with Section 151 of

CPC, wherein the LXVI Additional City Civil and Sessions

Judge, Bangalore City (CCH.No.67) was pleased to reject

the plaint by its order dated 01.02.2018 in

O.S.No.5709/2016, the plaintiff therein has preferred this

appeal.

2. The case of the appellant is that he is a

neighbour in an apartment complex of respondent Nos.1

and 2 herein and that respondents have put up

construction in violation of all building bye laws affecting

the rights of the appellant in peacefully enjoying his

property. Hence, the appellant filed the original suit with

the following reliefs:-

a. "Of Mandatory Injunction directing the Defendant Nos.1, 2 and any person/s claiming under or through them, and the Defendant No.4 to demolish the following illegal constructions made in respect of the suit schedule property:

i. Construction of concrete slabs for completely sealing the top of the staircase (that was originally open to air) leading up to the third floor terrace;

ii. Placement of steel fencing and installation of door frames and lockable wooden doors at the landing area of the second floor and passages used to access the common terrace area;

iii. Construction using brick and cement for enclosing the entire terrace area opposite to the Suit Schedule Property in order to build additional rooms and installation of plumbing and sewage lines; and iv. Any other illegal construction that the Defendants No.1 and 2 illegally construct during the pendency of this suit.

b. Of Permanent Injunction restraining the Defendant Nos.1 and 2 and any person/s claiming under or through them, from putting up any illegal construction over the suit Schedule Property or any Common Areas abutting, surrounding or touching upon the Suit Schedule Property;

c. Of Permanent Injunction restraining the Defendant Nos.1 and 2 and any person/s claiming under or through them, from causing any interference to the Plaintiff's unrestricted and unhindered access and use of any of the common areas abutting,

surrounding or touching upon the Suit Schedule Property;

d. Of Mandatory Injunction directing the Defendant Nos.3 and 4 to prohibit the Defendant Nos.1 and 2 from putting up any illegal construction over the Suit Schedule Property or any common Areas abutting, surrounding or touching upon the Suit Schedule Property;

e. Of damages in a sum of Rs.1,00,000/- (Rupees One Lakh) payable by the Defendant Nos.1 and 2 to the Plaintiff for having caused undue pain, suffering, hardship and injury to the Plaintiff; f. Awarding cost of the suit in favour of the Plainitiff payable by the Defendant Nos.1 and 2; and g. Such other or further orders as this Hon'ble Court deems fit and proper given the facts and circumstances of the case, in the interest of justice and equity."

3. Respondent Nos.1 and 2 have filed their written

statement and also preferred an application under Order

VII Rule 11 (d) read with Section 151 of CPC and for

rejection of plaint. The contention of the respondent Nos.1

and 2 is that the appellant instigated BBMP to issue notice

under Section 321 (1) (ii) and (iii) of the Karnataka

Municipal Corporations Act, 1976 and that the respondent

No.4 - BBMP passed an order directing respondent Nos.1

and 2 to remove certain alleged illegal construction.

Aggrieved by the same, respondent Nos.1 and 2 preferred

an appeal before the Karnataka Appellate Tribunal

(hereinafter referred to as 'the KAT' for short).

4. It is contended that initiation of the proceedings

by the BBMP and subsequent challenge of the action of

BBMP by respondent Nos.1 and 2 before the KAT is a bar

to the suit filed by the appellant. Accepting the contention

of respondent Nos.1 and 2, the plaint filed by the appellant

herein has been rejected and the impugned order has been

passed. Aggrieved by the same, the instant appeal is filed.

5. It is the contention of the appellant that as

respondent Nos.1 and 2 has put up illegal construction, he

gave a representation to BBMP - respondent No.4 and on

inspection, the respondent No.4 found that there were

certain illegal construction put up and ordered demolition

of the same. Aggrieved by the said order, respondent

Nos.1 and 2 approached the KAT.

6. Initially, there was an interim order by the KAT in

favour of respondent Nos.1 and 2 but however, appeal has

been subsequently dismissed and presently, the same has

been challenged in this Hon'ble Court by way of

W.P.No.53342/2017. It is submitted that the said

proceedings is not a bar for the appellant to agitate his

rights before the trial Court. The original suit is filed not

merely because the respondent Nos.1 and 2 have put up

illegal construction but because the said illegal

construction is infringing upon the rights of the appellant

to enjoy his suit schedule property peacefully. It is further

submitted that proceedings initiated by the respondent

No.4 - BBMP against respondent Nos.1 and 2 and

consequentially legal actions by any of the parties is not a

Bar to the suit filed by the appellant and the trial Court

erred in rejecting the plaint filed by the appellant herein.

7. Heard the learned counsel for the appellant and

learned counsel for respondent Nos.1 and 2.

8. The question that arises for consideration in the

instant case is:-

"Whether the trial Court erred in concluding that the action initiated under the Karnataka Municipal Corporations Act, 1976 by the respondent No.4 - BBMP against respondent Nos.1 and 2 and the consequential litigation arose is a bar to appellant filing the original suit?"

9. Proceedings under Section 321 (1) (ii) (iii) of the

Karnataka Municipal Corporations Act, 1976 initiated by

respondent No.4 - BBMP against respondent Nos.1 and 2

for the alleged illegal construction put up by them in

violation of building bye laws sanctioned by the BBMP is

not a bar for the appellant to file an original suit against

the respondent Nos.1 and 2 on the ground that alleged

illegal construction amounts to violation of the rights of the

appellant to peacefully enjoy his property. There is no bar

in any law for initiation of such suit. Proceedings under

the Karnataka Municipal Corporations Act, 1976 cannot be

construed as an alternative remedy available to appellant.

Given the facts and circumstances of the case, the trial

Court erred in holding it otherwise.

For the aforementioned reasons, the appeal

deserves to be allowed. Hence, the following:-

ORDER

(i) The appeal is hereby allowed.

(ii) The impugned order dated 01.02.2018 in O.S.No.5709/2016 passed by the LXVI Additional City Civil and Sessions Judge, Bangalore City, (CCH-

67) on the application filed by the respondent Nos.1 and 2 under Order VII Rule 11 (d) read with Section 151 of CPC, is hereby set aside and the said application of respondent Nos.1 and 2 is hereby dismissed.

(iii) The trial Court to hear the case of the appellant in accordance with law. O.S.5709/2016 is restored to file.

(iv) Parties to appear before the trial Court on 25.03.2022 without further notice.

(v) Registry to return back the trial Court records forthwith.

Sd/-

JUDGE

MH/-