IN THE HIGH COURT OF KARNATAKA AT BAN
DATED THIS THE 7TH DAY OF DECEMBER_'42VO'_1 GV;. ~
BEFORE
THE HON'BLE MR.JUST1c;:E J
RFA NO.1.I5_7 O1%*--~2OO5 A "
BETWEEN: 1' 'V V '
1. SMTMANJAMMA ' ._
W/0 LATE R.K.PADMAIAH',~
AGED ABOUT 35 A
2.
D /O LATE R.K.,_PAD'MAIg§.H",-..._ .
AGED AE0;JT:__1g<_L YEARSQ. '_
3. 1\/IAVSTE'R~V1r?ARAT,O 1
S /O L.ATE'R.K;RADMA1AHG;~ A '
AGED 1?aE30LIT'1.V1'Y;1EARS."
2 AND 3 AR T, _:MIN.OR'3 "
BY THEIR MOTHER
--. AND NATURAL
v_ . jSMT'.MAMA1x.4MA
"ALL qRERES_1'DING AT
~NO,33'; «KODIHALLI VILLAGE,
JEEVAN13H_EEMA NAGAR,
BANGALORE -- 560075.
H ~ BY THEIR POWER
= M VQRATTORNEY HOLDER
M/S TEAM BUILDERS
;NO.3363 /A-1, 111 MAIN,
11 CROSS, HAL 11 STAGE.
INDRANAGAR.
BANCHflJ3RE---560038.
EE?HlBYHS
IMMMGWGPMMNER
GBNEWAMH.
[BY SRI.G.MAN1VANNAN, AND
SR1 IVLPRAKASH ADVS.)
AND:
BANGALORE MAHLANAGARA'i:?1&I,{IKE 2 V
BANGALORE-»560001. 'I
REPTD. BY ITS 3
COMMISSIONER. ...RESPONDENT
(BY SRI.K.N.PUT1’EGOW’D$A’,’ A’13€*’.1:’
THIS APPEAL IS::FIL_E_1::- UNDER SECTION 96 O XLI R
1 OF CPC AOi§x1NST.THE JUDGMENTVAND DEGREE DATED
04.08.2005′ ‘PA_sSED_ I5929/2005 ON THE FILE
OF THE XIII ADDL. JUDGE, MAYOHALL UNIT,
BANGALORE {SC3*£§ii-22)’;–. DISMISSING THE SUIT FOR
PERIVQINENT’ ‘1N=IUi~JC”i”ION,_ AS NOT MAINTAINABLE.
THIS”APPEI6II;ii.’cOIIajI’N«c§ ON FOR ORDERS THIS DAY.
THE COUR1’_i\fiADL_ ‘IHEv..;.s%OLLOwINO:-
m..JUDGMENT …..
matter is listed for orders, with the
cOn.Sent~ the learned counsel appearing for the
appelzlarit, matter is taken up for final disposal as the
has been dismissed for want of notice under
~
Section 282(1) of the Karnataka Municipal Corporation
Act (hereinafter referred to as ‘The Act’ for
also under Section 9 of CPC.
2. The suit is one for” perman_er1t- _i”njun’ctior’;
restraining the defendanteeor anybody cla.i.;nii1g
the defendant from interfering_ with lftheirllflg peaceful
possession and enjoyrrient of ‘fichedtilellproperty.
3. The case the northern
portion of” ‘0’Lglr.No.5/l of I-IASB
Katha.’ Hobli has been
allotted’ the R.K.Padma;iah, husband of
plaintiff no’. father of plaintiffs nos.2 and 3 under
partition deed dated 2.2.2002 and
I dated 24.9.2003. Katha was mutated
in”–the’. liiafirrae of Padmaiah. Padmaiah obtained a
sanctioned plan for construction of a residential
He entered into an agreement with M/s
Builders and also executed a general power of
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attorney in favour of one M / s Team Builders. After
sanction of licence, plaintiff died on 3.2.2003 leaving
behind lsi plaintiff his wife and plaintiffs 2
children. Plaintiffs became the absolute
the death of Padmaiah. They hadentered”.iI3to’~:a”joint””
development agreement on vv,Z.th
Builders. However, on ith.e_
BMP attempted to dernolishu.the’=bui1ding threatened
the employees and vacate the suit
schedule property. at*terript;.V¥.}vas without even
notice, thelnreasons and without any
justificationnt the plaintiffs sought for the
decrgee for injunction.
4:? fiefendants on service of summons appeared
A statement interalia stating that the suit
is not inaizitainable as the plaintiff has not issued notice
it as,_§;oIi’t’emplated under Section 482(1) of the Act and the
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suit is also not maintainable in View of the provisions
under Section 321(1) and (2) of the Act.
5. The trial Court framed a preliminary vipssuepas
regards to the maintainability and on consideration ;_.of
the matter, it dismissed the suit on V.
there is no notice issued as ‘requt-ir_edA’ttulnder g§e.cti+3n
482(1) of the Act and aiso..__onV”th’e groiir’t§l…,tha3t byf
implication, the suit barre_cl:iVV’:ur1d.er CPC. it
is against the said jud-g,?tn.e:tt and’ the plaintiff is
in appeal.
” for the plaintiff submitted
along with-4stheV’plaint;~…’plaintiff has produced a notice
is.*:+’:1_j13ed;p_._lA1:3.r1,_cier “section 482 dated 21.12.2004 which is
adTdres’se’d.”to’ “the Commissioner and a copy is also
addressedc: the Executive Engineer of the concerned
area. ” However, the trial Court without looking into the
document has dismissed the suit. I-Ie submitted
_’V__’_r;§’1’1at the provisions of Section 321 are not appeal
wk
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provision or there is any express bar under the
provisions of the Act for filing a suit. Unless by an
express or by implication bar is created,’vV.Vs.iiit,.V’ is
maintainable.
7. On the other hand
defendant supported the of . ;
He submitted that there redress
the grievance of of Section
321 of the Further suit is
not issne of notice under section
482 of”the–AVct. t
_8. in the the submissions made by the
connselA’fo1″‘the appellant, the point that arises
fordlconsidveration is
“VJhether the suit is liable to be dismissed
for want of notice and also on the ground of
bar of jurisdiction under section 9 of CPC?”.
%3″fi-,
I
9. From the records it is noticed that, alongwith
plaint, plaintiff has produced the copy of
However there is no acknowledgementgiffi’
counsel submit along with the piai11t.,yn¢ produced
the original copy. Further submission
Section 9 of CPC unless thlere’ an lbpalrnunderll
the statute, the suit been dismissed.
Admittedly, no barring the
Jurisdiction of irrlpiication suit is
to be is also not stated.
Section appeal provision nor
it gives”anyrers._ediy’.*»i plaintiff may file objection
to the notice’-if ‘But the case of the plaintiff is that
n.opisucl1Aén.otice is issued.
“finder above circumstances, I find that the
it jurdgment and decree of the trial Court requires to be
:s:et~aside and matter requires reconsideration.
wlkccordingiy, appeal is allowed. The judgment and
r
8
decree in OS No.15929/2005 dated 04.08.2005 on the
file of the X111 Add}. City Civil Judge, Mayohaii unit,
Bangaiore (SCCH–22) is set-aside. Matter is rerr1it.ted__ to
the trial Court to consider in the hght
issued by the plaintiff and alsoyyyconsideririhgw» v’0theur'”
provisions, then decide as to vfhetljieri’ atib-af’T1.Qf
jurisdiction either by etxpress V-or .ir:ipiic’ation asfl’
contemplated under _Section..9u:of_C1?C ah”d–.a_1sof§consider
as to whether the notice is issued before
filing of the suit; If t:hefl’I”1’ia}_jCo11rttfintts that the suit is
filed accor’t:1ar1ce law and it is maintainable it
may proceed
Sd/ –
JUDGE