Karnataka High Court
Prabha Ravishankar vs The Commissioner on 16 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:41733
MFA No. 6731 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6731 OF 2023 (CPC)
BETWEEN:
1. PRABHA RAVISHANKAR
W/O RAVISHANKAR,
AGED ABOUT 46 YEARS,
R/A NO.7, ASWATHALAKSHMI CLOTH
STORES, BANASWADI ROAD,
JAIBHARATHINAGAR,
BANGALORE-560033
...APPELLANT
(BY SRI. RAHUL S. REDDY, ADVOCATE)
AND:
1. THE COMMISSIONER
BRUHATH BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE,
Digitally signed
by DEVIKA M BANGALORE-560002
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. BATHE GOWDA K.V., ADVOCATE C/R)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(D) OF CPC,
AGAINST THE ORDER DATED 15.09.2023 PASSED IN
MISC.NO.25131/2016 ON THE FILE OF THE 74TH ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT,
BENGALURU (CCH-75), DISMISSING THE PETITION FILED
UNDER ORDER IX RULE 13 READ WITH SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 6731 of 2023
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant and learned
counsel for the caveator-respondent.
2. This miscellaneous second appeal is filed against
the rejection of petition filed under Order IX Rule 13 read with
Section 151 of CPC in Miscellaneous No.25131/2016.
3. The factual aspects of the case is that the appellant
filed a petition in Miscellaneous No.25131/2016 seeking
restoration of O.S.No.27189/2007 by recalling the order of
dismissal passed by this Court on 24.09.2016. The appellant
had filed the suit in O.S.No.27189/2007 for the relief of
declaration and injunction on the ground that appellant is the
owner of immovable property bearing Municipal No.25, Old
No.9, K.R. Puram, Bengaluru having acquired the same under a
gift deed dated 22.12.2003. The appellant has constructed a
residential building after obtaining necessary sanctioned plan
from the respondent dated 06.04.2015 consisting of ground
and first floor. Since there was a provision to construct another
one floor, she obtained one more plan from the respondent
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authority. Meanwhile, the respondent authorities has issued
notice to the petitioner that she has constructed the building
violating the sanctioned plan. Hence, the appellant has filed
the suit and the Trial Court also framed the issues and issue
No.3 was considered as Preliminary issue and suit came to be
dismissed vide its order dated 10.11.2011. Aggrieved by the
same, the appellant preferred an appeal before this Court in
R.F.A.No.1944/2011. This Court, after hearing the matter
allowed the appeal and remanded the matter for fresh
consideration vide its judgment dated 27.03.2013. On
28.09.2016, the respondent came near the property and
threatened to demolish the property and the appellant resisted
the same and when she approached the Trial Court, she came
to know that the Trial Court, based on the shara of the Court
Process Server stating that the appellant is not residing in the
said address, suit was dismissed for non-prosecution on
24.09.2016. The appellant contend that she never refused the
summons or never received any summons. Hence, prayed for
restoration of original suit.
4. The respondent appeared and filed the statement of
objections contending that the appellant was having the
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knowledge of remand and also contend that without looking to
provisions of KMC Act and even prior to filing of the suit, she
filed an appeal in No.870/2006 before the Karnataka Appellate
Tribunal to set aside the confirmation order dated 07.09.2006
and the appellant did not succeed in the said appeal and she
withdrew the same as not pressed and filed suit in
O.S.No.27189/2007 before the Trial Court. It is also contended
that the appellant had filed one more suit in O.S.No.8525/2006
on 23.09.2006 and the said suit was withdrawn by filing a
memo on 22.12.2007. Further, the respondent has also
contended that the appellant had submitted an application for
'Suvarna Paravanagi' i.e., Automatic Sanctioned Plan. While
submitting the said application, the appellant had given a
declaration by undertaking that she will not object for the
revocation of the plan. By virtue of giving undertaking to the
respondent authority, the appellant is not entitled to maintain
the miscellaneous petition. The said sanctioned plan has been
revoked and has been intimated to the appellant. Within three
days from filing of this miscellaneous petition, the appellant has
filed another Appeal No.872/2016 before the Karnataka
Appellate Tribunal on 03.10.2016 challenging the confirmation
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order issued by BBMP. It is also contended that the appellant
has not come to Court with clean hands and prayed the Trial
Court to dismiss the petition. The Trial Court also comes to the
conclusion that no grounds are made out to allow the petition.
Being aggrieved by the dismissal of miscellaneous petition,
present appeal is filed before this Court.
5. Learned counsel for the appellant would vehemently
contend that without service of notice, the suit was dismissed
and the matter was remanded back to the Trial Court for fresh
consideration and instead of considering the matter afresh,
dismissed the same and appellant has good case on merits. In
order to construct one more floor, the appellant obtained one
more plan from the respondent. Though the appellant obtained
one more plan, the respondent issued notice on the basis of the
old plan and proceeded to demolish the property. Learned
counsel also would vehemently contend that the Trial Court
failed to consider the prayer sought as well as the fact that no
notice was served on the appellant. Hence, the same may be
set aside and suit may be restored and opportunity may be
given to the appellant.
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6. Per contra, learned counsel for the caveator-
respondent would vehemently contend that the Trial Court
passed the order in detail having taken note of the factual
aspects of the case and nothing is placed on record before the
Trial Court, except producing certified copy of the order sheet
in O.S.No.27189/2007, copy of invoice and postal card. On the
other hand, the respondent also examined one witness as
R.W.1 and produced the documents as Exs.R1 to R7 i.e.,
certified copy of order sheet, written statement, I.A. filed under
Order 39 Rule 1 and 2 of CPC and affidavit in
O.S.No.8528/2006, certified copy of memorandum of appeal
under Section 443(a), order sheet and notices issued under
KMC Act, certified copy of memorandum of appeal under
Section 443(a), order sheet, notices issued under KMC Act and
judgment in Appeal No.872/2016, certified copy of plaint and
Court notice in O.S.No.27189/2007, certified copy of judgment
in R.F.A.No.1944/2011, certified copy of W.A.No.3175/2018
and certified copy of W.P.No.40751/2018 and the appellant was
unsuccessful before this Court and so also even after remand
also, the appellant did not pursue the matter before the Trial
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Court. Hence, the question of setting aside the impugned order
does not arise.
7. Having heard the learned counsel for the appellant
and learned counsel for the caveator-respondent and also
considering the material on record, it is not in dispute that,
earlier the suit was filed and the same was dismissed and
thereafter, the appeal was filed before this Court and the fact
that matter was remanded for fresh consideration is not in
dispute. The fact that appellant had approached this Court by
filing appeal in R.F.A.No.1944/2011 and the same was allowed
in 2013 and the matter was remanded and the suit was
dismissed in 2016 is not in dispute. Even after remand in the
year 2013 and thereafter for three years, the appellant did not
pursue the matter, inspite of matter being remanded at the
instance of the appellant before this Court and also not pursued
the matter before the Trial Court. When such being the material
on record, as rightly pointed out by the learned counsel for the
caveator-respondent, the appellant has exhausted all remedies
before the Trial Court as well as before this Court. Being
aggrieved by the confirmation order passed by the respondent,
she had approached the Karnataka Appellate Tribunal and was
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unsuccessful before the KAT and filed writ petition and writ
appeal and was unsuccessful and even after remand also, not
pursued the matter before the Trial Court.
8. When such being the case, unless the appellant
makes out a sufficient ground for non-appearance before the
Trial Court for dismissal of the suit, question of once again
considering the grounds which are urged does not arise and no
satisfactory reasons are assigned for non-appearance before
the Trial Court, inspite of the matter being remanded to the
Trial Court for fresh consideration. When the appellant did not
pursue the matter diligently, the question of setting aside the
order of Trial Court does not arise. The Trial Court also in
detail discussed the negligence on the part of the appellant and
particularly in Paragraph Nos.28, 29 and 30, taken note of all
these aspects, apart from considering the material placed
before the Court and in Paragraph No.30, made an observation
that even after the matter has been remanded by the High
Court, for three years, the appellant did not come forward
before the Court, only after dismissal of the suit only, filed the
petition and also rightly comes to the conclusion that neither
any bonafides nor any sufficient grounds for restoration of
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O.S.No.27189/2007. When such reasoning is given by the Trial
Court, I do no find any ground to set aside the order passed by
the Trial Court.
9. In view of the discussion made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
