The Karnataka Housing Board vs Sri Swamy Gowda
2022 Latest Caselaw 3858 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 07TH DAY OF MARCH, 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE E.S. INDIRESH

       WRIT PETITION NO.5149 OF 2022 (GM-CPC)


BETWEEN:

THE KARNATAKA HOUSING BOARD
4TH FLOOR, CAUVERY BHAVAN,
K.G. ROAD,
BENGALURU.
REPRESENTED BY ITS AEE, MYSURU
M.S. MAHESH AEE KHB PROJECT OFFICE
MYSURU-571 130.
                                          ...PETITIONER
(BY SRI. RAGHAVENDRA A. KULKARNI, ADVOCATE)

AND:

1. SRI. SWAMY GOWDA
   S/O LATE KARIGOUDA
   AGED ABOUT 58 YEARS.

2. SIDDARAMEGOUDA
   S/O LATE KARIGOUDA
   AGED ABOUT 55 YEARS.

3. SMT. PUTTARATHNAMMA
   D/O LATE KARIGOUDA
   W/O DEVARAJEGOUDA
   AGED ABOUT 52 YEARS.
                                2


4. SRI. SHANKARE GOWDA
   S/O LATE KARIGOUDA
   AGED ABOUT 48 YEARS.

5. SRI. N.K. KUMARA
   S/O LATE KARIGOUDA
   AGED ABOUT 41 YEARS.

  RESPONDENTS 1 TO 5 ARE
  RESIDENTS OF KALLURU,
  NAGANAHALLI,
  YELAWALA HOBLI,
  MYSURU TALUK AND DISTRICT-571 130.

6. THE STATE OF KARNATAKA
   REPRESENTED BY
   THE DEPUTY COMMISSIONER,
   D.C. OFFICE COMPLEX,
   MYSURU DISTRICT,
   MYSURU-571 129.

                                           ....RESPONDENTS
(BY SMT. ROOPA K.R., HCGP FOR R6)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 13TH JANUARY, 2022 AS PER
ANNEXURE-H PASSED BY THE 4TH ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, MYSURU IN ORIGINAL SUIT NO.678 OF 2014;
AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
                          ORDER

Smt. Roopa K.R., learned High Court Government Pleader

accepts notice for respondent No.6.

This writ petition is filed by the defendant No.2-Karnataka

Housing Board (for short, hereinafter referred to as 'Board')

challenging the order dated 13th January, 2022, Passed on IA.11

in Original Suit No.678 of 2014 on the file of the IV Additional

Senior Civil Judge and JMFC., Mysuru.

2. It is the case of defendant No.2-Board that the plaintiffs

are the owners in possession of the land bearing Survey No.54

(New No.54/38-P1) measuring 04 acres situated at Kalluru

Naganahalli Kavalu, Yelavala Hobli, Mysuru Taluk, wherein one

Shivashankar H. Pulse is the owner of Survey No.54/38-P1

measuring 04 acres. It is further stated in the writ petition that

the petitioner-Board has issued preliminary Notification under

Section 4 (1) of Land Acquisition Act (for short, hereinafter

referred to as 'Act') acquiring the land measuring 02 acre 25

guntas and thereafter, the final notification was issued under

Section 6(1) of the Act on 18th October, 2011 (Annexure-B). It

is further stated in the writ petition that the award has been

passed pursuant to the acquisition proceedings and as such the

averments made in the writ petition that the suit filed by the

plaintiffs in Original Suit No.678 of 2014 seeking declaratory

relief with consequential relief of permanent injunction

restraining the defendants and its officials claiming under them

is not maintainable before the trial Court. In this regard

defendant No.2-Board filed IA.11 under Order VII Rule 11(a) and

(d) read with Section 151 of the Civil Procedure Code which

came to be dismissed by the trial Court. Being aggrieved by the

same, the petitioner-Board preferred this writ petition.

3. I have heard Sri. Raghavendra A. Kulkarni, learned

counsel appearing for petitioner-Board, who contended that the

trial Court has committed an error in not considering the factual

aspect of the case that the defendant No.2-Board had acquired

the subject land. Therefore, he further contended that the said

contention has been taken by the plaintiffs in the plaint itself and

despite the same, the suit itself is not maintainable before the

trial Court. Hence, sought for interference in this writ petition.

He also referred to the judgment annexed to the writ petition at

Annexure J, K and L and contended that the defendant

No.2/petitioner herein demonstrated before the Court that the

suit itself is not maintainable since the land in question is

acquired by the defendant No.2-Board. In that view of the

matter, the learned counsel sought for interference.

4. Having taken note of the submission made by learned

counsel appearing for petitioner, I have carefully examined the

finding recorded by the trial Court and it is a trite law that

whenever an application is filed under Order VII Rule 11 of the

Civil Procedure Code, the trial Court has to look into the

averments made in the plaint and to apply its mind with sound

principles laid down by the Hon'ble Apex Court in a catena of

decisions with regard to its rejection. In this regard, I have also

carefully considered the judgments referred to in this writ

petition. Taking into consideration the averments made in the

plaint that the plaintiffs have claimed declaratory relief with

consequential relief of permanent injunction in the suit and also

the finding recorded by the trial Court that if the relief sought for

in the application is considered, then it is nothing but accepting

the defense of defendants without any evidence, I am of the

view that the finding recorded by the trial Court that the

determination of the rights of the parties have to be made only

after the full fledged trial is just and proper and does not call for

interference in this petition. In that view of the matter, trial

Court had rightly rejected the IA filed by the defendant No.2-

Board. Taking into consideration the reasons assigned by the

trial Court, I am of the view that the writ petition is liable to be

dismissed as devoid of merits. Accordingly, writ petition is

dismissed.

Sd/-

JUDGE

ARK