Karnataka High Court
D.V.Balan S/O Vydyanatha Iyer vs The Commissioner on 7 December, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 708 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 708 OF 2009 (INJ)
BETWEEN:
D.V.BALAN,
S/O VYDYANATHA IYER,
AGED ABOUT 75 YEARS,
R/O NO. 10, 4TH CROSS,
NANAJA REDDY COLONY,
H.A.L., WARD NO.73,
BANGALORE - 560017.
...APPELLANT
(BY SRI.K.VIJAYA KUMAR., ADVOCATE)
AND:
THE COMMISSIONER,
CORPORATION OF THE CITY,
OF BANGALORE,
Digitally BANGALORE - 560002.
signed by R ...RESPONDENT
MANJUNATHA
Location: (BY SMT.SUMANGALA GACHCHINAMATH., ADVOCATE)
HIGH COURT
OF
KARNATAKA THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED:08.07.2009 PASSED IN
OS.NO.7247/2005 ON THE FILE OF THE IX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE BANGALORE, DISMISSING THE
SUIT FOR PERMANENT INJUNCTION AND ETC.,
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 708 of 2009
JUDGMENT
Heard both the parties.
2. The present appeal is filed challenging the validity of
the judgment and decree passed in O.S.No.7247/2005 dated
08.07.2009 on the file of IX Additional City Civil Judge,
Bengaluru City (CCH-5).
3. Parties are referred to as plaintiff and defendant for
the sake of convenience as per their original ranking in the
Court below.
4. Brief facts of the case which are utmost necessary for
disposal of the appeal are as under:
A suit came to be filed by the plaintiff for permanent
injunction in respect of residential building bearing No.10, 4th
Cross, Nanja Reddy Colony, H.A.L. Ward No.73, Bengaluru,
measuring East to West 147 ft. and North to South 35 ft.,
bounded on East by road, West by private property, North by
private property and South by road (hereinafter referred to as
suit schedule property).
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5. It is contention of the plaintiff that he is the absolute
owner of the property by virtue of registered sale deed dated
22.03.1969 and is in possession of the suit property.
6. Katha of the property has been changed in the
revenue records of the defendant and plaintiff is paying taxes
to the defendant regularly.
7. Further, plaintiff contended that necessary plan and
license has been obtained from the defendant and constructed
ground, first and second floor on the suit property.
8. It is further contended that when the matter stood
thus, in the month of July 2005, officials of the defendant all of
a sudden came near the property and they told that they would
demolish the property. It is further contended that no notice
was issued as per the law before such threat came from the
officials of the defendant and a notice came to be issued by
plaintiff to the defendant.
9. When the matter stood thus, on 21.09.2005,
defendant has sent their employees and gave a threat of
demolition of the property. Thus on 22.07.2005 and
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21.09.2005, cause of action arose to file the suit. Therefore,
plaintiff approached the Court for an order of injunction.
10. Upon service of suit summons, defendant entered
appearance and filed detailed written statement contending
that paragraph Nos.2 to 4 of the plaint are subject to proof and
plaintiff has deviated from the plan and license and made illegal
construction on the suit property. Therefore, sought for
dismissal of the suit.
11. In view of the rival contentions of the parties,
learned Trial Judge raised following issues:
1. Whether the plaintiff proves that he put up the
construction in the suit schedule property in
accordance with the sanctioned plan and without
any deviation as pleaded in the plaint?
2. Whether the proves that the officials of the
defendant are illegally interfering with his
possession and enjoyment of the suit schedule
property as alleged in the plaint?
3.
4. Whether the defendant proves that the suit is not
maintainable in law for the reasons stated in the
written statement?
5. Whether the plaintiff proves that he is entitled for
the grant of permanent injunction against the
defendant as sought for in the suit?
6. What order or decree?
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12. In order to prove the case of the plaintiff, plaintiff
got examined himself as PW.1 and relied on seven documents
which are exhibited and marked as Ex.P.1 to Ex.P.7.
13. As against the evidence placed on record by the
plaintiff, no oral or documentary evidence is placed on record
by the defendant.
14. On conclusion of recording of the evidence on behalf
of the plaintiff, learned Trial Judge heard the parties in detail
and dismissed the suit of the plaintiff in holding that plaintiff
has illegally constructed, deviating from the sanctioned plan
and license.
15. Being aggrieved by the same, plaintiff has preferred
the present appeal on the following grounds:
The Judgment and Decree of the Trial Court is
illegal, arbitrary and is oppose to all judicial
norms and the same is unjust and is liable to
be set-aside.
The Trial Court has wrongly appreciated the
evidence on record in as much as the
Plaintiff/Appellant had proved by oral and
documentary evidence that the construction
put up on the suit schedule property is strictly
in accordance with the sanctioned plan and as
such, the trial court ought to have decreed the
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suit of the Plaintiff/Appellant. Hence, the
impugned decree is liable to be set-aside.
The Trial Court has wrongly placed the burden
of proof on the Plaintiff/Appellant that he
should prove that he has not put up
construction in violation of the sanctioned
plan. In this regard, it is necessary to mention
here that when the Defendant has not at all
tendered any evidence to substantiate the
contention taken up in the written statement
and when the burden of proof lies on the
Defendant/Respondent to prove that the
Appellant/Respondent to prove that the
Appellant/Plaintiff has put up construction in
violation of the sanctioned plan, it was
incumbent upon the Trial Court to hold that
the Building put up on the suit schedule
property is in accordance with the sanctioned
plan. Nothing has been elicited in the cross-
examination of PW1 plaintiff which goes to the
benefit of the Defendant/Respondent. Under
the circumstances, the impugned decree is
liable to be set-aside.
Having noticed that the Defendant/Respondent
has not even stated the actual violation, if
any, made be the plaintiff (without admitting
the same), it was not proper for the trial court
to have dismissed the suit of the plaintiff.
Hence, impugned decree is liable to be set-
aside.
The reasoning of the court below is not
property to hold the issues in the negative,
especially when the Defendant has not
tendered any evidence virtually admitting the
case of the plaintiff/Appellant and hence, the
impugned decree is liable to be set-aside.
The Judgment and Decree of the Trial Court
are based on surmises and conjectures and
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opposed to the Principles of Natural Justice in
as much as if there was really violation from
the sanctioned plan in putting up
construction, the Defendant/Respondent would
have adhered to the provisions of the KMC
Act. 1976. The silence of the Defendant alonw
without invoking the provisions of the Act
makes it clear that there is no violation from
sanctioned plan in putting up construction on
the suit schedule property. This aspect of the
matter has not been taken into consideration
by the trial court while passing the judgment
and decree. Hence, the impugned decree is
liable to be set-aside.
16. Reiterating the grounds urged in the appeal
memorandum, Sri.K.Vijaykumar, learned counsel contended
that learned Trial Judge has ignored that as notice is issued by
defendant before taking the action, as per the rules and
regulations of Bengaluru City Corporation. Therefore, the
intended action needs to be injuncted by allowing the appeal.
17. He also contended that plaintiff has put up the
construction as per the plan and license issued by defendant
and same has not been taken note by learned Trial Judge.
18. He further contended that the probative value of
documentary evidence on record placed by the plaintiff has not
been properly appreciated by the learned Trial Judge while
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dismissing the suit of the plaintiff and sought for allowing the
appeal.
19. Per contra Smt.Sumangala Gachchinamath, learned
counsel representing the defendant contended that the material
evidence on record has been rightly appreciated by learned
Trial Judge and construction of the property, deviation in
construction of the building from the plan and licence has been
rightly appreciated by learned Trial Judge, and rightly dismissed
the suit of the plaintiff and sought for dismissal of the appeal.
20. In view of the rival contentions, following points
would arise for consideration:
"1. Whether the plaintiff has made out a case for
granting injunction restraining the defendant from
demolishing the structure on the suit property?
2. Whether the impugned judgment is suffering
from legal infirmity or perversity and thus calls
for interference of this Court?
3. What order?"
21. The material evidence available on record including
Trial Court Records is perused by this court to appreciate the
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rival contentions of the parties. However, from the records it is
seen that 'B' and 'C' files are already destroyed. Plaint, written
statement, impugned judgment and decree alone is available
on record. Learned counsel for the appellant has filed
photocopies of the certified copies of the deposition and
exhibits.
22. On such perusal of the material placed on record, it
is seen that the a plan is issued by defendant as per Ex.P.5.
Sanction plan and licence is marked on record.
23. Further a notice came to be issued on 22.07.2005 by
plaintiff to the defendant. The said notice is served on the
Commissioner, Bengaluru City Corporation. But no reply has
been issued by defendant. Nor any statutory is issued by
defendant alleging the deviation in construction plan sanctioned
plan.
24. The material placed on record would go to show
that defendant has failed to produce any oral or documentary
evidence on record.
25. Taking note of the fact that plaintiff has deposed
before the Court on oath that there is no deviation from the
plan and license and construction is as per the plan and license,
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this Court is of the considered opinion that defendant is at
liberty to issue necessary statutory notice, if there is a
deviation from the plan and license and proceed to take action
against the plaintiff in accordance with law and till such time
protect the action of defendant would meet the ends of justice.
26. Since there is no material on record which would go
to show that there was an illegal construction made by the
plaintiff, the empty threat of the defendant cannot be
countenanced in law.
27. Reserving the right to the respondent - BBMP to take
appropriate action in accordance with law after issuing
necessary notices, the appeal needs to be allowed. The learned
Trial Judge has presumed that the suggestions made having
been denied, the plaintiff has not been able to make out a case
and dismissed the suit of the plaintiff which requires
interference by this Court, as the defendant being a statutory
authority, needs to take action in accordance with law.
28. However, if there is an illegality committed by the
plaintiff by constructing the property deviating from the
sanctioned plan and license, it is always open for the defendant
- BBMP to take action in accordance with law.
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29. With the above observations, point Nos.1 and 2 are
answered in the affirmative.
REGARDING POINT NO.3:
30. In view of the findings of this Court on point Nos.1
and 2 as above, following:
ORDER
(i)Appeal is allowed.
(ii) Impugned judgment and decree passed in
O.S.No.7247/2005 dated 08.07.2009 is
hereby set aside.
(iii) Suit of the plaintiff is decreed, subject to the
condition that defendant is at liberty to issue
necessary notice to the plaintiff and if there
is an illegal construction, deviating from the
sanctioned plan and license and take action
in accordance with law.
(iv) No order as to costs.
Sd/-
JUDGE
KAV
