Bengaluru South City Corporation Vs Mr U Sivanna

BENGALURU SOUTH CITY CORPORATION (ERSTWHILE) BRUHATH BANGALORE MAHANAGARA PALIKE HAVING ITS OFFICE AT: PALIKE COMMERCIAL COMPLEX BUILDING, 2^ND FLOOR, 9^TH CROSS 2^ND BLOCK, JAYANAGARA BANGALORE- 560 011 BY ITS COMMISSIONER AND REPRESENTED BY ASST. EXECUTIVE ENGINEER (INCHARGE) MR.P.CHANDRASHEKAR S/O MR.PALLAIAH AGED ABOUT 43 YEARS

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…APPELLANT

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(BY SRI. SATYANAND B S, ADVOCATE)

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AND:

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MR.U.SIVANNA S/O LATE U.BAJARAPPA AGED ABOUT 83 YEARS R/AT NO.52/1, SHANTHI NILAYA 1^ST MAIN, 6^TH CROSS

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HC-KAR

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NANJAPPA LAYOUT AUDUGODI BANGALORE- 560 030

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…RESPONDENT

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(BY SRI. SRIHARI A.V, ADVOCATE)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.07.2025 PASSED IN O.S.NO.5783/2023 ON THE FILE OF XXX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DECREEING THE SUIT FOR PERMANENT INJUNCTION AND ETC.

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THIS APPEAL, COMING ON FOR PART HEARD IN ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is filed by the appellant - BBMP assailing the judgment and decree dated 03.07.2025 passed in O.S.No.5783/2023 for permanent injunction granted by the Trial Court.

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For the sake of brevity, the parties are referred to

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as per their rankings before the Trial Court.

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Brief facts leading to the case are as under;

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The plaintiff instituted a suit for bare injunction

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alleging that the defendant–Bruhat Bengaluru Mahanagara Palike (for short “BBMP”) was attempting to demolish the building constructed by him over the suit schedule property. In the plaint, the plaintiff asserted that he is the absolute owner of the property and that he had obtained a sanctioned building plan and licence dated 28.09.2018 permitting construction of a stilt floor, ground floor, first floor and second floor along with terrace floor. It was specifically pleaded that during the last week of March 2023, officials of BBMP interfered with the ongoing construction and threatened demolition. The plaintiff further contended that he had issued a legal notice dated 17.03.2023 protesting such interference and that though the officials initially desisted from further action upon receipt of the notice, they subsequently resumed interference, compelling him to institute the present suit for permanent injunction.

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Despite service of summons, the defendant–BBMP

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did not enter appearance or file written statement before

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the Trial Court. The Trial Court framed issues and proceeded to decree the suit. However, the Trial Court failed to examine whether the subject matter of the dispute was governed by the provisions of the Karnataka Municipal Corporation Act, 1976 (for short “the KMC Act, 1976”), which is a self-contained code regulating building activity, deviations and demolition proceedings within municipal limits. Without adverting to the statutory mechanism and remedies provided under the KMC Act, 1976, the Trial Court granted a decree of perpetual injunction against a statutory authority in respect of actions ostensibly taken under the KMC Act, 1976. Aggrieved by the said decree, BBMP has preferred the present appeal.

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Heard the learned counsel appearing for the plaintiff–respondent and the learned counsel appearing for the defendant–appellant/BBMP. This Court has also taken

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cognizance of the additional evidence produced by the appellant in I.A. No.2/2025, which comprises: (i) the provisional order passed under Section 321(1) of the KMC Act, 1976; (ii) the show cause notice issued under Section 321(2); (iii) the confirmation order under Section 321(3); (iv) the order passed under Section 462 of the KMC Act, 1976; and (v) other connected documents including the legal notice issued by the plaintiff and the judgment in O.S.No.25171/2021. These documents are stated to be public documents reflecting statutory proceedings initiated against the plaintiff in respect of alleged deviations.

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Upon a careful examination of the additional

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evidence placed on record and having heard the rival submissions, the following points arise for consideration in this appeal:

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(i) Whether the Trial Court exercised its discretion judiciously in granting a decree of perpetual injunction against BBMP?

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(ii) Whether the additional evidence produced by BBMP in the present appeal deserves to be taken on record for an effective and complete adjudication of the dispute?

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(iii) Whether the additional documents, being orders passed under the provisions of the KMC Act, 1976 and other public documents, can be received in evidence without relegating the parties to lead further evidence?

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(iv) Whether the appeal deserves to be allowed with imposition of exemplary costs?

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(v) What order?

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Findings on Point No.(iii) :-

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The facts of the present case disclose a rather disturbing state of affairs. The appellant – BBMP is a statutory body entrusted with the onerous duty of regulating building activity within the municipal limits and ensuring strict adherence to sanctioned plans, building bye-laws and statutory mandates. Equally, citizens who

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undertake construction are bound to conform to such statutory prescriptions. In the case on hand, despite service of summons in the present suit, the officials of BBMP failed to effectively contest the proceedings by engaging panel counsel and placing before the Trial Court the true and complete factual matrix. Had the statutory proceedings already initiated under law been brought to the notice of the Trial Court, it would have been evident that the suit was instituted by suppressing material facts and by seeking to overreach the statutory process.

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When a specific query was put to the learned counsel appearing for the plaintiff as to whether the additional documents produced in this appeal are disputed, the learned counsel, with fairness, conceded that the documents are admitted. It is also not in dispute that though an interim order was initially obtained, the plaintiff unconditionally withdrew the said appeal on 18.01.2021. The withdrawal was absolute and without reserving liberty.

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The next crucial document is the judgment

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rendered in O.S.No.25171/2021. The said suit for bare injunction was filed immediately after withdrawal of the appeal before the Karnataka Appellate Tribunal. In the said proceedings, BBMP entered appearance and produced the very same statutory documents to demonstrate that the action initiated against the plaintiff was strictly in accordance with the provisions of the KMC Act, 1976. Taking note of the admitted statutory proceedings, the Civil Court disposed of the suit by invoking Order XII Rule 6 of the Code of Civil Procedure, 1908 and expressly reserved liberty to the defendant–BBMP to proceed in accordance with law. Thus, the plaintiff was fully aware that the statutory action had attained finality subject to remedies under the KMC Act, 1976.

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In light of the above admitted documents, this

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Court finds that the plaintiff was not only aware of the proceedings initiated under Sections 321(1), 321(2), 321(3) and 462 of the KMC Act, 1976, but had, in fact,

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availed the statutory appellate remedy and thereafter consciously withdrawn the same. The institution of the present suit, without disclosing the earlier proceedings and the outcome in O.S.No.25171/2021, amounts to clear suppression of material facts. Though there is evident laxity on the part of BBMP officials in not contesting the second suit with due diligence, the documents now produced are public documents emanating from statutory authorities and a competent Civil Court. Being admitted documents and essential for complete adjudication, they are taken on record and accordingly, I.A.No.2/2025 is allowed and point No.(iii) is answered in the ‘ Affirmative’ .

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Findings on Point Nos.(i) and (ii):

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Having admitted the additional documents, this Court cannot remain silent regarding the manner in which judicial process has been invoked. On an overall appreciation of the pleadings in O.S.No.5783/2023 and the additional material now placed on record, it is evident that

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the plaintiff could not have maintained a suit for injunction so as to interdict statutory action initiated under the KMC Act, 1976. The KMC Act, 1976 is a complete code in itself, providing for issuance of provisional orders, confirmation,

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coercive steps and appellate remedies. Once action is initiated under the statutory framework, the jurisdiction of the Civil Court to examine the correctness or legality of such action stands impliedly barred. Section 9 of the Code of Civil Procedure, 1905 excludes jurisdiction where cognizance is either expressly or impliedly barred. In matters concerning demolition proceedings and deviations governed by the KMC Act, 1976, the remedy lies within the statutory hierarchy and not by way of a simplicitor suit for injunction.

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The conduct of the plaintiff is also evident from the sequence of events. The initial provisional order under Section 321(1) of the KMC Act, 1976 was issued on 26.11.2019, specifically pointing out violations of setback norms and gross deviations from the sanctioned plan.

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Though sanction was granted for construction of a stilt floor, ground floor, first floor and second floor, it is revealed from the records that the plaintiff had dispensed with the stilt floor and had additionally constructed a third floor without obtaining licence or approval. This prompted issuance of notices under Sections 321(1) and 321(2) of the KMC Act, 1976. In the absence of satisfactory compliance, the Confirmation Order under Section 321(3) of the KMC Act, 1976 was passed on 05.12.2019, followed by action under Section 462 of the KMC Act, 1976 on 10.12.2019 when the plaintiff failed to rectify the deviations.

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Instead of bringing the construction in conformity with the sanctioned plan, the plaintiff issued a legal notice dated 02.01.2020 stating that the confirmation order had been challenged before the Karnataka Appellate Tribunal. Though he initially obtained interim protection, the appeal was unconditionally withdrawn. Thereafter, the plaintiff instituted O.S.No.25171/2021 seeking identical relief of

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injunction. In that suit, BBMP placed the statutory orders on record and the Civil Court, acknowledging the statutory scheme, disposed of the suit with liberty to BBMP to proceed in accordance with law. Subsequent to such disposal, when BBMP issued a fresh notice dated 20.07.2023 in continuation of earlier proceedings, the plaintiff treated it as a fresh cause of action and instituted the present suit in O.S.No.5783/2023.

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The present suit is thus a clear attempt to stall statutory action by repeatedly invoking the jurisdiction of the Civil Court. The BBMP officials, for reasons best known to them, failed to effectively contest the suit despite service of summons, thereby enabling the plaintiff to secure a decree in an uncontested proceeding. However, the Trial Court, even in the absence of contest, was dutybound to scrutinize the pleadings and examine whether the suit was maintainable in the teeth of the statutory bar.

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A Civil Court cannot grant an injunction restraining a statutory authority from discharging its functions under a

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special enactment, particularly when the statute provides a complete mechanism of adjudication and appeal. The jurisdictional bar under Section 9 of the Code squarely applies.

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Even assuming there was suppression of facts, the learned Trial Judge ought to have undertaken a deeper scrutiny of paragraphs 4, 5 and 6 of the plaint and the prayer column to ascertain whether the relief sought was, in substance, an attempt to invalidate or obstruct statutory proceedings under the KMC Act, 1976. It is in this background that this Court deems it appropriate to extract the relevant pleadings to demonstrate how the suit was structured to create an illusion of mere interference, while in reality seeking to neutralize statutory demolition proceedings. The same is extracted, which read as under:

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"4. It is further submitted that the plaintiff with a view to construct a Residential Building upon the schedule property consisting of Stilt floor, ground floor, first floor, second floor, including terrace floor as per the sanction plan issued by the defendant authority in

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LP.No.Ad.com/SUT/0079/18-19, dated 28/09/2018 to construct Stilt floor, ground floor, first floor, second floor, including terrace floor and the plaintiff files herewith the copy of the sanctioned plan as document NO.5 for the kind perusal of this Hon'ble court.

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5. It is further submitted that, when the plaintiff are constructing the suit building as per the sanction plan issued by the defendant authority, very strangely the officials of the defendant authority abruptly appeared near the suit property during the last week of March 2023 and made vehement threats to demolish portions of the schedule building, and also made threats to demolish portions of the suit building and also made threats to interfere with the construction and though the plaintiff prevented the officials of the defendant authority from causing any damage to the schedule building, by apprising them that the same is being made in accordance with the plan, but considering this abrupt threat of demolition of the schedule building, posed by the defendant authority, that too without any prior notice to the plaintiff as per law, the plaintiff in all prudence caused a legal notice to the defendant Authority on 17/03/2023, as per Section 482(1) of the Karnataka Municipal Corporation Act 1976, received by the defendant Authority on 20/03/2023 and the plaintiff files here with the copy of the notice with its original postal receipt and Acknowledgement as document No's 8 and 9 for the kind perusal of this Hon'ble court.

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6. It is further submitted that the defendant authority after receipt of the legal notice sent by the plaintiff as mentioned supra, kept quiet for some time, but unfortunately without sending any reply to the same, the defendant authority again sent its officials near the suit property on 05/09/2023 and made vehement threats of damage the suit building and also made threats to interfere with the construction of the same and this time it was a Herculean task for the plaintiff to prevent the officials of the defendant authority from causing any interference to the suit building, but considering these repeated threats of damage/interference to the schedule building posed by the defendant authority, the plaintiff is left with no other alternative remedy except to seek the indulgence of this Hon'ble court, by filing this suit against the defendant."

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" Wherefore, the plaintiff respectfully prays that this Hon'ble court be pleased to pass a judgment & decree against the defendant by an order of perpetual injunction restraining the Defendant, its agents, men, or anybody, under or through it from demolishing any portion/portions of the suit schedule building and or in any way interfering with the plaintiffs' lawful possession of the schedule property, and grant such other relief's as this Hon'ble court deems fit in the circumstances of the case including the costs of the proceedings, in ends of justice."

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16. A careful reading of paragraphs 4, 5 and 6 of the

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plaint in O.S.No.5783/2023, along with the prayer column,

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unmistakably reveals that the plaintiff has attempted to couch the relief as one for “bare injunction” while, in substance, seeking to restrain the statutory authority from implementing orders passed under the provisions of the KMC Act, 1976. In paragraph 4 of the plaint, the plaintiff asserts that he is the absolute owner and that he has constructed the building strictly in accordance with the sanctioned plan dated 28.09.2018. In paragraph 5, he alleges interference by the officials of BBMP during the last week of March 2023 and characterizes such interference as high-handed and without authority of law. In paragraph 6, he further pleads that despite issuance of a legal notice, the officials persisted in threatening demolition, thereby giving rise to a cause of action to file the present suit.

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However, what is conspicuously absent in these pleadings is any reference to the earlier statutory proceedings initiated under Sections 321(1), 321(2) and 321(3) of the KMC Act, 1976, the consequential order under Section 462 of the KMC Act, 1976, the appeal

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preferred before the Karnataka Appellate Tribunal and its unconditional withdrawal, and the earlier suit in O.S.No.25171/2021 which was disposed of with liberty to BBMP to proceed in accordance with law. The omission is not inadvertent; it goes to the root of the matter. A litigant, who approaches the Court seeking equitable relief of injunction, is bound to disclose all material facts. Suppression of prior proceedings, particularly those culminating in statutory orders, amounts to abuse of process.

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The prayer column of the plaint seeks a decree of permanent injunction restraining BBMP and its officials from demolishing or in any manner interfering with the suit schedule property. Though framed as a simple injunction against interference, the true import of the prayer is to interdict implementation of confirmed demolition orders passed under the KMC Act, 1976. When a statutory authority proceeds under a special enactment which provides a complete machinery for adjudication and

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appeal, a Civil Court cannot indirectly nullify such proceedings by granting an injunction. The relief sought, if granted, would have the effect of rendering nugatory the orders passed under Sections 321 and 462 of the KMC Act, 1976. For the reasons stated supra, Point No.(i) is answered in the " Negative" and Point No.(ii) is answered in the " Affirmative" .

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Finding on Point No.(iv) :-

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The cause of action pleaded in the present suit is thus not an independent or fresh cause of action, but a continuation of the very statutory proceedings which had already culminated in confirmation orders and had even been subjected to appellate scrutiny before being withdrawn. By carefully drafting the plaint to project the matter as one of mere unlawful interference, the plaintiff attempted to create an artificial distinction between “statutory action” and “threat of demolition,” though both arise out of the same confirmed proceedings. Such drafting cannot confer jurisdiction on a Civil Court where it

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is otherwise barred either expressly or by necessary implication.

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On a holistic consideration of the extracted pleadings, this Court is satisfied that the present suit is a classic example of forum shopping and successive litigation intended to delay and defeat statutory enforcement. The equitable jurisdiction of a Civil Court cannot be invoked to shield unauthorized construction or to stall demolition proceedings lawfully initiated under the KMC Act. The Trial Court, even in the absence of contest by BBMP, ought to have scrutinized the averments and declined relief on the ground of maintainability. Failure to

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do so has resulted in a decree which is legally unsustainable and calls for interference in appeal.

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" Hence, as directed, the District Judges exercising jurisdiction in the City of Bengaluru are directed to note that whenever powers are exercised under Section 248(1) and (2) of the BBMP Act, the said Courts would not have jurisdiction to exercise in such matters, since it is only the Writ Court which can exercise jurisdiction in those

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matters. All the concerned Courts in Bengaluru shall follow the above directions scrupulously."

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Having taken cognizance of the admitted statutory proceedings, the suppression of material facts and the successive attempts made by the plaintiff to stall enforcement of orders passed under the KMC Act, 1976, this Court is of the considered view that the conduct of the plaintiff warrants imposition of exemplary costs. The records further indicate that the plaintiff has put up a substantial and palatial structure and that the premises are being put to commercial use, thereby generating considerable income. The litigation initiated is not a bona

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fide attempt to protect lawful possession, but a calculated move to defer and defeat statutory action. Such abuse of the process of Court cannot be countenanced. This is therefore a fit case to saddle the plaintiff with exemplary costs quantified at Rs.2,00,000/- (Rupees Two Lakhs only), payable to the defendant within six weeks from the date of receipt of a certified copy of this judgment.

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Accordingly, Point No.(iv) is answered in the

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“ Affirmative ”.

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At the same time, this Court cannot overlook the serious lapse on the part of the officials of BBMP, who, despite service of summons, failed to effectively contest the suit in O.S.No.5783/2023. Such inaction on the part of responsible officers of a statutory body has resulted in an avoidable decree and unnecessary litigation before this Court. The Commissioner of BBMP is therefore directed to initiate appropriate departmental action against the officials responsible for not contesting the said suit and to ensure that accountability is fixed. A compliance report indicating the action taken shall be filed before the Registry of this Court within a period of six weeks from the date of receipt of a copy of this judgment.

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Point No.(v) :— For the foregoing reasons, the following order is passed:

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ORDER

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(i) The appeal is allowed.

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(ii) The judgment and decree dated 03.07.2025 passed in O.S.No.5783/2023 are hereby set aside and the suit filed by the plaintiff stands dismissed with exemplary costs of Rs.2,00,000/(Rupees Two Lakhs only) payable to the defendant.

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(iii) The said costs shall be deposited within six weeks from the date of receipt of a copy of this judgment with the Bangalore South City Corporation (erstwhile) Bruhat Bengaluru Mahanagara Palike, having its office at Palike Commercial Complex Building, 2nd Floor, 9th Cross, 2nd Block, Jayanagara, Bangalore – 560 011.

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(iv) The Commissioner of BBMP shall initiate appropriate action against the concerned officials who failed to

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contest O.S.No.5783/2023 despite service of summons and shall submit a compliance report to the Registry of this Court within six weeks.

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(v) It is made clear that this order shall not preclude the plaintiff from availing such statutory remedies as may be available to him under the provisions of the Karnataka Municipal Corporation Act, 1976, in accordance with law.

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(vi) Pending applications, if any, are also disposed off.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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NBM

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List No.: 1 Sl No.: 12

Bengaluru South City Corporation v. Mr U Sivanna

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Bengaluru South City Corporation v. Mr U Sivanna

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