1. The petitioner’s application Order I Rule 10 of CPC in the suit in O.S.No.25425/2019 on the file of the LXXIV Additional City Civil and
Sessions Judge, Mayohall Unit, Bengaluru (for short, the civil Court’) is rejected by the civil Court by its impugned order dated 09/04/2019. As
such, the writ petition is filed. Further, the civil Court has allowed the application filed by the respondent No. 1 granting injunction against the Bruhat
Bengaluru Mahanagara Palike (for short ‘the BBMP’), one of the defendants and respondent No. 2, from demolishing construction in the
subject property, and the petitioner has impugned the same in the appeal.
2. The undisputed facts are that the petitioner, who is the owner of the neighboring property owned by the respondent No.1, filed a complaint with the
BBMP alleging that the respondent No.1 was constructing in deviation on sanction accorded for construction. This complaint has led to flurry of
proceedings including the suit in O.S.No.25425/2019 by the respondent No.1 against a certain Smt. Nirmala (defendant No.1) and the BBMP and the
writ petition filed by the petitioner in W.P. No.1714/2019 for directions to the BBMP to take action against the alleged deviation in the construction by
the respondent No.1 acting on his complaint. This court has disposed of the writ petition in W.P.No.1714/2019 on 03.04.2019, directing the BBMP to
take further action pursuant to the Confirmation Order under Section 321 (3) of the Karnataka Municipal Corporations Act, 1976 (for short ‘the
KMC Act’).
3. The learned counsel for the petitioner and the learned counsel for the BBMP submit that after the writ petition in W.P.No.1714/2019 is disposed of
on 03.04.2019 as aforesaid, the Corporation has issued necessary orders under Section 462 of the KMC Act.
4. Insofar as the merits of the writ petition, the learned counsel for the respondent No.1 submits that the petitioner’s application for impleadment
has been rightly rejected by the civil Court because in a suit for temporary injunction, the plaintiff being the dominus litis is entitled to choose the cause
of action and the persons against whom such cause of action is urged. The learned counsel relies upon decision of this Court in the case of Sri.
C.S.Venkateswaran Vs. The Commissioner and another in W.P.No.17012/2006 (GM-CPC), in the case of Ehthasham Ali Khan and another Vs. The
Commissioner and another in W.P.No.16235/2006 (GM-CPC) and in the case of Shri Vivek Chandrashekar Vs. Mr. Mohammed Habeebulla Sharieff
in W.P.No.17530/2006 (GM-CPC).
5. Insofar as the grant of injunction by the impugned order by the civil Court, the learned counsel for the respondent No.1 submits that the respondent
No.1 is constrained to file the suit because there was a threat of demolition, but no formal action was initiated and in such circumstances, in the light of
the decision by the Hon’ble Supreme Court referred to by the civil Court, the suit would be maintainable. The learned counsel further submits that
the respondent No.1 has not been served with the preliminary order under Section 321 (3) of the KMC Act or the subsequent orders. It is only during
the pendency of the present proceedings that he has been informed that the different orders have been passed. The learned counsel for the
respondent No.1 further submits that though the respondent No.1 could avail alternative remedy under Section 443 (A) of the KMC Act, a suit under
Section 9 of CPC would not be barred and as such, not only is the suit maintainable, but the grant of interim order is also justified in the facts and
circumstances of the case.
6. However, it would suffice for the disposal of the writ petition and the appeal, for this Court to observe that once it is to the knowledge of the
respondent No.1, the appropriate recourse would be to avail statutory remedy under the KMC Act, and every ground urged against the orders issued
can be gone in such proceedings. If the interim order granted by the civil Court were to prevail, even after the proceedings are initiated under the
KMC Act, the effect of such orders stultified rendering the statutory mechanism ineffective. Furthermore, after the initiation of the proceedings under
the KMC Act at the instance of the petitioner, who has already approached this Court to pursue his complaint against deviation in accordance with
law, will have to be considered as a proper party in the facts and circumstances of this Court. If a party is a proper party, it would be permissible for
such party to be permitted to come on record. The temporary injunction being dissolved, it would be reasonable and appropriate, in the interest of
justice, to direct the BBMP not to take any precipitative action for a period of fifteen days. In the light of the above, the following:
ORDER
The writ petition in W.P.No.19048/2019 is allowed. The impugned order dated 09.04.2019 in O.S.No.25425/2019 on the file of the LXXIV Additional
City Civil and Sessions Judge, Mayohall Unit, Bengaluru is set aside. The petitioner is permitted to come on record in the suit in O.S.No.25425/2019 on
the file of the LXXIV Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru as party-defendant No.3. The appeal in MFA
No.8409/20019 is disposed setting aside the impugned order dated 16.09.2019 dissolving the temporary injunction granted against demolition observing
that the respondent No.1 shall be at liberty to initiate appropriate proceedings under the provisions of the KMC Act, and the BBMP shall not take any
action for demolition for a period of fifteen days from today.
