- 1 - NC: 2025:KHC-D:6487 RSA No. 2465 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 2465 OF 2007 (INJ) BETWEEN: SRI. VEERABHADRA SHELLIKERI AGE. 44 YEARS, OCC. BUSINESS, R/O BROADWAY HUBLI, DIST. DHARWAD-580020. …APPELLANT (BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE) AND: 1. SRI. MAHADEV S/O KRISHNAJI CHAVAN AGE. 33 YEARS, OCC. BUSINESS CHAVAN BROTHERS WATCH AND RADIO DEALERS R/O KOPPIKAR ROAD, HUBLI, DIST. DHARWAD-580020. 2. SRI. CHANDRASHEKHAR S/O KRISHNAJI CHAVAN AGE. 36 YEARS, OCC. BUSINESS, CHAVAN BROTHERS WATCH AND RADIO DEALERS R/O KOPPIKAR ROAD, HUBLI, DIST. DHARWAD-580020. 3. SRI. RAMCHANDRA S/O KRISHNAJI CHAVAN AGE. 24 YEARS, OCC. BUSINESS, CHAVAN BROTHERS WATCH AND RADIO DEALERS R/O KOPPIKAR ROAD HUBLI, DIST. DHARWAD-580020. 4. HUBLI-DHARWAD MUNICIPAL CORPORATION BY ITS COMMISSIONER HUBLI, DIST. DHARWAD-580020. …RESPONDENTS (BY SRI. M.G. MALAVADE, ADVOCATE FOR R1-R3; SRI. I.G. GACHCHINAMATH, ADVOCATE FOR R4; SRI. SHRIDHAR HIREMATH, ADVOCATE FOR R4) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 01.08.2007 PASSED IN R.A.NO.202/2005 ON THE FILE OF THE II ADDL. CIVIL JUDGE,(SR.DN),HUBLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.11.2005 PASSED IN O.S.NO.127/2002 ON THE FILE OF THE I ADDL. CIVIL JUDGE (JR.DN), HUBLI, DISMISSING THE SUIT FOR DECLARATION, PERMANENT AND MANDATORY INJUNCTION & ETC. YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6487 RSA No. 2465 of 2007 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant No.1 challenging the judgment and decree dated 01.08.2007 in R.A.No.202/2005 on the file of the II Additional Civil Judge (Sr.Dn.), Hubli1 allowing the appeal and setting aside the judgment and decree dated 07.11.2005 in O.S.No.127/2002 on the file of the I Additional Civil Judge (Jr.Dn.), Hubli2 dismissing the suit of the plaintiffs. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiffs that the plaintiffs have filed suit seeking relief of declaration and consequential relief of permanent injunction as well as mandatory injunction seeking demolishing of the illegal 1 Hereinafter referred to as ‘First Appellate Court’ 2 Hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:6487 RSA No. 2465 of 2007 construction/pillars erected by the defendant No.1 in the suit schedule property. Hence, the plaintiff has filed O.S.No.127/2002 alleging that the resolution dated 04.10.2000 passed by the defendant No.2 is illegal and accordingly sought for granting relief as prayed in the plaint. 4. After service of notice, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendants that, the suit is not maintainable as per Section 482 of Karnataka Municipal Corporation Act, 19763 and accordingly sought for dismissal of the suit. 5. The Trial Court based on the pleadings on record, has framed issues and additional issues for its consideration. In order to establish their case, the plaintiff has examined 2 witnesses as PW.1 and PW.2 and produced 16 documents and same were marked as Exs.P.1 to P.16. No evidence on the part of the defendants. 3 Hereinafter referred to as ‘Act’ - 4 - NC: 2025:KHC-D:6487 RSA No. 2465 of 2007 6. The Trial Court after considering the material on record, by its judgment and decree dated 07.11.2005 dismissed the suit and feeling aggrieved by the same, the plaintiffs have preferred R.A.No.202/2005 on the file of the First Appellate Court and same was resisted by the defendants. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 01.08.2007, allowed the appeal, consequently, decreed the suit of the plaintiffs in O.S.No.127/2002. Feeling aggrieved by the same, the defendant No.1 has preferred this Regular Second Appeal. 7. This Court vide order dated 30.10.2007 has formulated the following substantial questions of law: “i. Whether the lower appellate court was justified in reversing the judgment and decree of the trial court? ii. Whether the suit is maintainable and is hit by section 482 of the Karnataka Municipal corporation Act?” - 5 - NC: 2025:KHC-D:6487 RSA No. 2465 of 2007 8. I have heard Sri.Hanumanthareddy Sahukar, learned counsel appearing for the appellant and Sri.I.G.Gachchinamath, learned counsel appearing for the respondent No.4. The plaintiffs/respondents No.1 to 3 are served and remained absent. 9. Learned counsel appearing for the appellant contended that the First Appellate Court has committed an error in allowing the appeal without considering the compliance of mandatory requirements as contemplated under Section 482 of the Act. It is also submitted that the plaintiffs have no authority under law to challenge the resolution No.2468 dated 04.10.2000 passed by the HDMC - respondent No.4 herein and accordingly sought for interference of this Court. 10. Learned counsel appearing for respondent No.4, sought to justify the judgment and decree passed by the Trial Court. - 6 - NC: 2025:KHC-D:6487 RSA No. 2465 of 2007 11. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the findings recorded by both the Courts below. 12. On careful examination of the findings recorded by the First Appellate Court as well as the finding recorded by the Trial Court on additional issue No.1, it is relevant to extract the provision contained under Section 482 of the Act which reads as under: “482. Institution of suits against municipal authority, officers and agents.-(1)No suit [x x x] shall be instituted against the corporation or any municipal authority, corporation officer or servant, or any person acting under the direction of the same, in respect of any act done in pursuance or in execution, or intended execution of this Act or any rule, bye-law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act or any rule, bye-law, regulation or order made under it until the expiration of after a notice has been delivered or left at the corporation office or at the place of abode of such officer, servant or person, stating the cause of action, the relief sought, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. (1A) A suit to obtain an urgent or immediate relief against the corporation or any municipal authority, corporation officer or servant in respect of any act done or purporting to de done by such officer or servant in his official capacity, may be instituted with the leave of the court, without serving any notice as required by sub-section (1), but the court shall not grant relief in - 7 - NC: 2025:KHC-D:6487 RSA No. 2465 of 2007 the suit, whether interim or otherwise except after giving to the corporation officer or servant, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: Provided that the court shall, if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint, for presentation to it after complying with the requirements of sub-section (1).] (2)Every such suit be shall commenced, within six months after the date on which the cause of action arose or in case of a continuing injury or damage during such continuance or within six months after the ceasing thereof. (3)[ x x x] (4)If any person to whom any notice is given under sub-section (1) tenders the amount to the plaintiff before the suit is instituted, and if the plaintiff, does not recover in any such action more than the amount so tendered he shall not recover any costs incurred after such tender and the defendant shall be entitled to costs as from the date of tender. (5)Where the defendant in any suit is the Commissioner, a corporation officer or servant, payment of the sum or any part of any sum payable by him in or in consequence of the suit, whether in respect of costs, charges, expenses, compensation for damages or otherwise may by made, with the sanction of the standing committee, from the corporation fund.” 13. Perusal of the language employed under Section 482 of the Act makes it clear that the aggrieved party, like plaintiffs in the present suit, have to issue notice to the respondent No.4 herein and have to take necessary action by instituting suit only after the - 8 - NC: 2025:KHC-D:6487 RSA No. 2465 of 2007 expiration of 60 days of the notice. It is also to be noted that the plaintiffs have challenged the resolution No.2468 dated 04.10.2000 passed by the HDMC – respondent No.4 herein which requires to be challenged under the provisions contained under the Act only and not under Section 9 of CPC. 14. In that view of the matter, I find force in the submission made by the learned counsel appearing for the appellant and the First Appellate Court has committed an error in interfering with the well reasoned judgment and decree passed by the Trial Court. Hence, the substantial questions of law framed above favours the defendants and accordingly, I pass the following: ORDER i. Appeal is allowed. ii. Judgment and decree dated 01.08.2007 in R.A.No.202/2005 on the file of the II Additional Civil Judge (Sr.Dn.), Hubli is hereby set aside. - 9 - NC: 2025:KHC-D:6487 RSA No. 2465 of 2007 iii. Judgment and decree dated 07.11.2005 in O.S.No.127/2002 on the file of the I Additional Civil Judge (Jr.Dn.), Hubli is hereby confirmed. iv. Suit in O.S.No.127/2002 on the file of the I Additional Civil Judge (Jr.Dn.), Hubli is dismissed. Sd/- (E.S.INDIRESH) JUDGE SH, CT:VP LIST NO.: 1 SL NO.: 27