The Commissioner vs V Jayalakshmi
2022 Latest Caselaw 7635 Kant

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        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 30TH DAY OF MAY, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.2825/2019 (CPC)

BETWEEN:

THE COMMISSIONER
BRUHATH BENGALURU MAHANAGARA PALIKE
HUDSON CIRCLE,
BANGALORE - 560002
                                                ...APPELLANT

(BY SRI. CHANDAN SANJAY BHAT, ADVOCATE FOR
    SRI. AMIT A DESHPANDE, ADVOCATE)

AND:

1.     V JAYALAKSHMI
       W/O SRI K V VASANTHA KUMAR,
       AGED ABOUT 51 YEARS,
       RESIDING AT NO 09, 1ST FLOOR,
       5TH MAIN ROAD, ITTAMADU BSK III STAGE,
       BANGALORE

2.     K VASANTHA KUMAR
       AGED ABOUT 57 YEARS
       RESIDING AT 9,
       1ST FLOOR, 5TH MAIN ROAD,
       ITTAMADU, BSK III STAGE
       BENGALURU
                                            ... RESPONDENTS
(BY SRI RAGHU BABU N, ADVOCATE)
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      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, PRAYING TO SET ASIDE THE ORDER
DATED 11.02.2019 VIDE ANNEXURE-M PASSED BY THE LEARNED
57TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE IN
O.S.NO.25236/2018 ON I.A.NO.1/2018 BY ALLOWING THE APPEAL.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The appellant, who is the defendant in

O.S.No.25236/2018 on the file of the LVII Additional City

Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (for

short, 'the civil Court'), has impugned the civil Court's order

dated 11.02.2019. The civil Court by this impugned order

has allowed the respondents' application [I.A.No.1] under

Order XXXIX Rule 1 and 2 of the Code of Civil Procedure,

1908 (for short, 'CPC') restraining the appellant, the local

authority, from interfering with the respondents' peaceful

possession of the suit schedule property while dismissing

the appellant's application [I.A.No.2] under Order XXXIX

Rule 4 of CPC.

2. The undisputed facts are that the appellant has

initiated proceedings under Section 321(1) and 321(2) of

the Karnataka Municipal Corporations Act 1976 (for short,

'the KMC Act') with the issuance of the Provisional Order

dated 08.11.2013 and the notice thereof. The appellant has

subsequently issued the Confirmation Order under Section

321(3) of the KMC Act on 18.11.2013. The respondents,

the owners of the subject property, have initially

commenced the suit in O.S.No.25058/2015 which is later

withdrawn, and the aforesaid orders dated 08.11.2013 and

18.11.2013 are impugned under Section 443A of the KMC

Act in Appeal No.503/2016 before the Karnataka Appellate

Tribunal (for short, 'the Appellate Tribunal').

3. The Appellate Tribunal has dismissed this

appeal on 18.01.2016, and the respondents have

challenged the Appellate Tribunal's order before this Court

in W.P.Nos.7975-7976/2017. This Court has allowed the

writ petitions and restored the proceedings before the

Appellate Tribunal for re-consideration and subsequently,

the Appellate Tribunal has disposed of the appeal directing

the appellant to conduct fresh mahazar and take

appropriate decision.

4. It is after these proceedings that the appellant

has issued another Provisional Order and notice under

Section 321(1) and 321(2) of the KMC Act on 14.02.2018

(Annexure-B) and followed these with the Confirmation

Order under Section 321(3) of the KMC Act on 28.02.2018.

In the meanwhile, the respondents have filed the present

suit for permanent injunction inter alia alleging that the

appellant is taking action to bring down the construction

without completing the procedure commenced. The civil

Court has allowed the respondents' application, while

dismissing the appellant's application, primarily for the

reason that no action has been taken to complete the

proceedings as required under the provisions of the KMC

Act.

5. Sri. N.Raghu Babu, the learned counsel for the

respondents, without disputing that the respondents will

have the remedy under Section 443A of the KMC Act and

the present suit cannot be maintained if the proceedings

under KMC Act are initiated, submits that the respondents

though are constrained to approach the civil Court with the

suit because the appellant did not serve a copy of the

alleged Confirmation Order dated 28.02.2018, and in fact,

if a copy of the Confirmation Order was duly served, the

respondents would have availed such remedy. When

queried, Sri. Chandan Sanjay Bhat, learned counsel who

appears for Sri. Amit A. Deshpande [the learned counsel on

record for the appellant] asserts, based on the original

records furnished to him by the appellant, that the

Confirmation order dated 28.02.2018 is served on

respondents on 12.03.2018.

6. However, to put to quietus the controversy on

the service of the Confirmation Order, as also the

Provisional Order on 14.02.2018 under Section 3(2)(1) and

321(2) of the KMC Act if any, Sri. Chandan Sanjay Bhat is

called upon to serve a copy of these orders on Sri. N.Raghu

Babu who acknowledges the same.

7. Sri N.Raghu Babu submits that with the copies

of the orders under Section 3(2)(1), 321(2) and 3(2)(3) of the

KMC Act being now furnished before this Court, the

respondents would withdraw the suit and this appeal could

be disposed of continuing the interim arrangement granted

by the civil Court for a reasonable period of time so that the

respondents can avail the remedy under Section 443A of

the KMC Act and seek necessary protection. But he

emphasizes that this Court must observe that the

respondents could seek dispensation of production of

certified copy in the appeal before the Appellate Tribunal

under Section 443A of the KMC Act and also seek exclusion

of the time spent in prosecuting the suit given the

circumstances of the case, including the circumstance

under which a copy of the Confirmation order dated

28.02.2018 [a copy of the Provisional Order dated

14.02.2018] are furnished.

8. The civil Court has granted the interim order

primarily because the respondents contend that the

conclusion remanded with the orders in the appeal in

No.503/2016 is not concluded as required under the

provisions of KMC Act, which is now belied with the

production of the original documents and with the

respondents being served with the copies of the orders

dated 14.02.2018 and 28.02.2018. Therefore, it would be

appropriate for the respondents to avail alternative remedy

under Section 443A of the KMC Act for complete

adjudication in the manner contemplated under the statue.

Therefore, the following:

ORDER

The appeal stands disposed of observing that the

interim order granted by the civil Court shall be in force for

a period of six [6] weeks from today and subject to any

orders that may be passed by the Appellate Tribunal in any

appeal that could be preferred by the respondents calling in

question the Provisional and the Confirmation orders dated

14.02.2018 and 28.02.2018. The respondents shall be at

liberty to seek dispensation with the production of certified

copies of these orders and to seek exclusion of time in the

circumstances of the case. Further, the submission that

the respondents would file necessary memo for withdrawal

of the suit before the civil Court upon institution of the

appeal as aforesaid is also taken on record, and all

questions are left open to be decided in the appeal by the

Appellate Tribunal.

SD/-

JUDGE RB