At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE JOHN MICHAEL CUNHA
For the Petitioners: Gautam S. Bharadwaj, Advocate. For the Respondents: R1, C.V. Annaiah, Advocate.
(Prayer: This Civil Revision Petition is filed Under Section 115 of CPC against the order dated 09.07.2020 passed on I.A. in O.S.No.1441/2020 on the file of the Xxv Addl. City Civil and Sessions Judge, Bangalore, rejecting the I.A. filed under Order 7 Rule 11(D) r/w Section 151 of CPC for rejection of plaint.)
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1. In a suit filed by respondent No.1 (hereinafter referred to as the "plaintiff") in O.S.No.1441/2020, the petitioner No.1 (hereinafter referred to as the "defendant No.1") moved an application in I.A.No.3 under Order VII Rule 11(d) read with section 151 CPC, seeking to reject the plaint on the ground that the suit is barred by the provisions of the Karnataka Municipal Corporation Act, 1976 and also under the provisions of Code of Civil Procedure, 1908.
2. The facts of the case are that the plaintiff filed the above suit for bare injunction seeking to restrain defendant Nos.1 and 2 from putting up illegal construction in the 'B' schedule property in violation of the building license and sanctioned plan. According to the plaintiff, defendant Nos.1 and 2 without leaving set-back, started constructing the building in the 'B' schedule property with an intent to construct multistoried building of more than 6 to 7 floors. The apprehension of the plaintiff is that, if the defendants constructed the building illegally against the bye-law, then the plaintiff will be put to irreparable loss and injury and block the air and light to the plaintiff's 'A' schedule property and there is likelihood to damage being caused to plaintiff's building.
3. On service of summons, defendant Nos.1 and 2, sought to reject the said plaint on the ground that in view of section 321 of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as the "Act"), jurisdiction of the Civil Court is ousted and therefore, the suit is not maintainable and the Civil Court has no jurisdiction to entertain the suit.
4. During the course of hearing, defendant Nos.1 and 2 sought to sustain the above contention based on the decision of the Hon'ble Supreme Court reported in LAWS (SC) 2016(7) 60 IN R.K.ROJA vs. U.S.RAYUDU & Another and the decision of this Court in Civil Revision Petition No.826 of 1963 dated 10.11.1964 in MATHEW PHILIPS vs. P.O.KOSHY and another decision of this court in Miscellaneous First Appeal No.4752 of 2000 dated 11.01.2001 in S.SUNDAR RAJ vs. VIJAYENDRA KUMAR & Others. However, considering the ratio laid down in the above decisions and having regard to the relief claimed in the suit, the Trial Court distinguished the above decisions and by the impugned order, rejected the application filed by petitioner No.1 under Order VII Rule 11(d) read with section 151 CPC. The said order is impugned in this petition.
5. I have heard learned counsel for petitioners and learned counsel for contesting respondent No.1.
6. It is now well settled that a plaint could be rejected under Order VII Rule 11(d) of the Code where the suit appears, from the statement in the plaint, to be barred by any law. The statement made in the plaint, in the instant case, goes to show that the plaintiff has sought for the relief of permanent injunction against defendant Nos.1 and 2 restraining them from constructing building in the 'B' schedule property without leaving set-back thereby obstructing air and light to the plaintiff's 'A' schedule property and also to prevent any damage to the plaintiff's building. These averments find place in para 5 of the plaint. Defendant No.1 though in his application has stated that the suit is barred by law, he has not specified the provision of law which could oust the jurisdiction of the Civil Court as contended.
7. It is settled law that exclusion of the jurisdiction of the Civil Court cannot be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also a well settled principle of law that, "even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into the cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure".
8. In the instant case, a reading of the application filed by the defendant No.1 go to show that defendant No.1 has sought for rejection of the plaint mainly on the ground that the remedy of the plaintiff for the alleged violation of the sanction plan lies elsewhere and therefore, the suit is not maintainable. In the affidavit filed in support of the application, it is stated that "the nature of the power exercisable under section 321 of the Act cannot be undertaken by the Civil Courts in exercising of their power under section 9 of the Code or under section 39 of the Specific Relief Act". This assertion is wholly misplaced and does not fall within the ambit of Order VII Rule 11 of the Code. Section 321 of the Karnataka Municipal Corporations Act does not take away the jurisdiction of the Civil Courts rather the said provision confers power on the Commissioner to order demolition of the building unlawfully constructed or completed.
9. In the instant case, the plaintiff has not sought for demolition of the building for the alleged violation of the rules or bye-laws or for violation of sanction accorded by the Commissioner. The suit is based on the specific averment that if defendant Nos.1 and 2 are permitted to construct building in the 'B' schedule property without leaving setback and by violating the sanction accorded by the Commissioner, the same would affect the right to light and air of the plaintiff in enjoying the 'A' schedule property, situated adjacent to 'B' schedule property. This relief, in my view, is wholly competent
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before the Civil Courts and is not barred under section 321 of the Act as contended by the first respondent. The Trial court therefore has rightly rejected the application filed by the defendant No.1. The decisions relied on by learned counsel for defendant No.1 before the Trial Court are not applicable to the facts of the case and are distinguishable as observed by the Trial Court and as such, I do not find any valid reason to interfere with the impugned order. Consequently, the petition is dismissed. In view of dismissal of the petition, I.A.No.1/2020 does not survive for consideration and the same is also dismissed.