Karnataka High Court
Veracious Vanivilas Flat Owner Assn vs Mrs Malathi Girish on 30 May, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:18267
MFA No. 2868 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.2868 OF 2024 (CPC)
BETWEEN:
VERACIOUS VANIVILAS FLAT OWNER ASSN.,
AN APARTMENT ASSOCIATION,
DULY REGISTERED UNDER KARNATAKA APARTMENTS
ACT, 1972, D.B. ROAD, NEAR CRPF CAMPUS,
PUTENAHALLI, YELAHANKA, BANGALOER - 560 064.
REP. BY ITS VICE PRESIDENT
MR. SUKUMAR NATARAJAN.
...APPELLANT
[BY SRI LAKSHMISH G., ADVOCATE (PH)]
AND:
1. MRS. MALATHI GIRISH,
W/O H.D. GIRISH,
AGED ABOUT 54 YEARS,
HOUSE NO.56, RAILWAY PARALLEL ROAD,
KUMARA PARK WEST,
BANGALORE - 560 020.
2. SUNANDA VANI,
W/O SRI G.V. VEERASETTY,
Digitally signed by
GEETHAKUMARI 3. NANDINI SHIVAPRAKASH,
PARLATTAYA S W/O SRI S.G. SHIVAPRAKASH,
Location: High
Court of Karnataka 4. RAVI G.V.,
S/O SRI G.V. VEERASETTY,
5. CHETHANA PRASAD,
W/O SRI PRANAVA PRASAD,
RESPODNENT NOS.2 TO 5 ARE ALL
R/AT NO.56, 14TH 'A' CROSS,
MALLESHWARAM, BANGALORE - 560 003.
6. THE COMMISSIONER,
BRUHUT BANGALORE MAHANAGARA PALIKE,
HUDSON CIRCLE, BANGALORE - 560 002.
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MFA No. 2868 of 2024
7. THE ASSISTANT EXECUTIVE ENGINEER,
BRUHUT BANGALORE MAHANAGARA PALIKE,
YELHANKA SUB-DIVISION, BANGALORE - 560 063.
8. VERACIOUS BUIILDERS AND DEVELOPERS (P) LTD.,
NO.302, OXFORD CHAMBERS, RUSTUMBAGH,
BEHIND MANIPAL HOSPITAL, OLD AIRPORT ROAD,
BENGALURU - 560 017.
REP. BY ITS MANAGING DIRECTOR.
...RESPONDENTS
[BY SRI T.A. KARUMBAIAH, ADVOCATE FOR C/R1 (PH)]
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 04.04.2024 PASSED ON I.A. IN
O.S.NO.26592/2023 ON THE FILE OF THE LXXIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU
(CCH-74), DISMISSING THE I.A. FILED UNDER ORDER XXXIX RULE
1,2, AND 7 READ WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging order dated 04.04.2024 passed on I.A.no.I
filed under Order XXXIX Rule 1, 2 and 7 of C.P.C., in
O.S.no.26592/2023, this appeal is filed.
2. Sri Lakshmish G., learned counsel for appellant
submitted that appellant was plaintiff in O.S.no.26592/2023
filed for relief of declaration of easementary rights and for
perpetual injunction restraining defendants from interfering
with exclusive use of schedule 'C' property by apartment
owners of plaintiff's association.
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3. In said suit, appellant had filed I.As.no.I and II
under Order XXXIX Rule 1, 2 and 7 of C.P.C., seeking for
ex-parte ad interim order of temporary injunction restraining
defendants disturbing appellant/plaintiff's peaceful possession,
enjoyment and demolishing part or portion of 'C' schedule
property. On consideration, trial Court passed impugned order
rejecting application. Aggrieved thereby, appellant has filed this
appeal.
4. It was submitted that construction of apartment in
'A' schedule property by respondent no.8 - Developer was in
pursuance of Joint Development Agreement between
respondents no.1 to 5 and 8. It was submitted that property
earlier belonged to one G.V. Veerasetty, who had executed
deed of declaration at Annexure-B granting exclusive rights
insofar as 'C' schedule property for providing 40ft. road to
proposed apartment complex. It was submitted, after his
death, respondent no.2 herein who was wife of G.V. Veerasetty
had executed deed of declaration at Annexure-C granting
exclusive rights for formation of 80ft. road in 'C' schedule
property in favour of respondent no.8.
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5. It was submitted that said deeds clearly authorized
laying of road, electricity cables, water lines etc. for exclusive
use of apartment owners. It was further submitted, based on
same, building licence was granted and apartment was
constructed. It was submitted that an arch at entrance/exit
gate, security room and etc. were constructed in 'C' schedule
property during year 2013. Such being case, a complaint was
filed by respondent no.1 - daughter of G.V. Veerasetty to
respondents no.6 and 7 - BBMP. In pursuance of same, notices
were issued against alleged illegal construction of arch, gates
and etc. in land belonging to BBMP.
6. It was fairly submitted challenging said action,
appellant had filed writ petition before this Court in
W.P.no.24716/2022. However, same came to be dismissed on
04.10.2023 reserving liberty to respondents - BBMP to remove
arch and gate. Said order was assailed in W.A.no.1426/2023. It
was submitted that even appeal was also dismissed on
04.12.2023. Same was challenged before Hon'ble Supreme
Court in SLP no.28401/2023. Since present suit was filed in
meanwhile, SLP was got dismissed as withdrawn on 03.01.2024
with liberty to pursue civil suit.
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7. It was submitted, since subject matter of suit was
regarding exclusive easement rights under deeds of declaration
granted in favour of appellant, action for demolition of same by
respondents based on relinquishment deed executed without
consent of appellant would be illegal. Further, determination of
rights under deeds of declaration would be within exclusive
jurisdiction of Civil Court and orders passed by this Court in
writ petition and writ appeal would not be impediment. Such
being case, rejection of application by referring to orders
passed in writ proceedings by observing that appellant/plaintiff
had failed to make out prima facie case, balance of
convenience, irreparable loss and injury being caused to
appellant would be wholly untenable, perverse and therefore
called for interference. It was submitted, since demolition of
arch, gates and etc. by respondents no.6 and 7 was imminent,
he sought for consideration of I.A.no.I/2024 for temporary
injunction restraining demolition.
8. On other hand, Sri T.A. Karumbaiah, learned
counsel for caveator-respondent no.1 sought to oppose appeal.
9. Heard learned counsel and perused impugned
order.
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10. From above, it is seen that matters lies in a narrow
compass. Prima facie there appears to be no dispute about fact
that appellant being an Association in respect of apartment
constructed in 'A' schedule property. While, respondents no.1
to 5 being owners of 'B' schedule property, appellant's claim
that 'C' schedule property is only means of ingress and egress
to apartment and by virtue of deeds of declaration executed by
G.V. Veerasetty and respondent no.2 herein, roads were laid,
arch and gates were constructed in 'C' schedule property,
therefore action for demolition initiated at instance of
respondent no.1 claiming to be public road belonging to
respondents no.6 and 7 would not be justified. On other hand,
respondents contend that owners having executed
relinquishment deed in respect of 'C' schedule property in
favour of respondents no.6 and 7 - BBMP, construction of arch,
gates and etc. in said property would be illegal and action for
demolition would be justified.
11. The issue whether appellant/plaintiff is having
exclusive right insofar as 'C' schedule property and as such,
action for demolition by BBMP would be in violation of rights,
appears to have received consideration by this Court in
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ancillary proceedings, wherein appellant/plaintiff had
questioned action of respondents - BBMP. In said proceedings,
a clear observation is made that construction of arch and gates
to apartment is clearly noted to be in area belonging to BBMP
and liberty was reserved to BBMP to remove arch and gates,
while upholding right of appellant apartment owners for use of
road laid for ingress and egress. Said order was confirmed in
writ appeal with observation that claim in respect of said road
as exclusive on concept of gated community stood rejected.
12. Admittedly, challenging before Apex Court against
said orders is dismissed as withdrawn. Such being case,
rejection of application by learned trial Judge taking note of
observations cannot be held to be untenable or unjustified and
calling for interference. Therefore, appeal is without merit.
However, demolition would be subject to final outcome of suit
and trial Court would be at liberty to pass appropriate orders in
this regard. And since learned counsel for appellant has
submitted that he would cooperate for early conclusion of suit,
which is seconded by learned counsel on behalf of respondents/
defendants no.1 to 3 and 5 also, trial Court is directed to
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expedite disposal of suit without granting unnecessary
adjournments.
With above observations, appeal stand dismissed.
In view of dismissal of appeal, pending application is also
disposed of.
Sd/-
JUDGE
GRD
