- 1 - NC: 2025:KHC:6918 WP No. 6820 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 6820 OF 2021 (GM-CPC) BETWEEN: SRI. PRASHANTH SUVARNA AGED ABOUT 50 YEARS, S/O. LATE KESHAVA SUVARNA R/AT 'SAISHA APARTMENT' D.NO.3-1-45A (17), ADI-UDUPI MALPE MAIN ROAD, AMBALAPADY, UDUPI -576 103 …PETITIONER (BY SRI. NATARAJA BALLAL, ADVOCATE) AND: THE UDUPI CITY MUNICIPAL COUNCIL, CITY MUNICIPAL OFFICE, K.M. MARG, UDUPI TQ. AND DIST REP. BY ITS COMMISSIONER UDUPI-576103 …RESPONDENT (BY SRI. T.A. ABDULLA, ADVOCATE) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 15.02.2021 IN M.A.NO.36/2018 PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND JMFC AT UDUPI (ANNEXURE- E) CONFIRMING THE ORDER DATED 22.11.2018 PASSED ON IA NO.II IN O.S.NO.717/2017 BY THE III ADDL.CIVIL JUDGE AND JMFC, UDUPI (ANNEXURE-C) AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT KARNATAKA - 2 - NC: 2025:KHC:6918 WP No. 6820 of 2021 CORAM: HON'BLE MR JUSTICE R. NATARAJ ORAL ORDER The plaintiff in O.S.No.717/2017 on the file of the III Additional Senior Civil Judge and JMFC, Udupi (henceforth referred to as 'Trial Court' for short) has filed this petition challenging an order dated 22.11.2018 by which, an application (I.A.No.II) filed by him seeking interim injunction was rejected. He has also challenged an order dated 15.02.2021 passed by the II Additional Senior Civil Judge and JMFC, Udupi (henceforth referred to as 'Appellate Court' for short) in M.A. No.36/2018 by which, it confirmed the order of rejecting the application for interim injunction. 2. (i) The suit in O.S.No.717/2017 was filed for perpetual injunction to restrain the defendant from demolishing the construction of an ATM room in the ground floor and a pent house constructed on the terrace of the 3rd floor of 'Saisha Apartment' bearing municipal door No.3-1-45A (17) situated at Udupi. (ii) The plaintiff claimed that he was the absolute owner of the property described in schedule 'A' to the suit. He also claimed that he constructed a multistoried residential - 3 - NC: 2025:KHC:6918 WP No. 6820 of 2021 apartment comprising of basement, ground floor plus three floors in compliance with the commencement certificate. He also contends that he had sold all the apartments in the building so constructed. He claimed that while finishing the construction, he had constructed a pent house over the apartment building for his personal use and occupation which was allotted door No.3-1-45A(17) and was assessed to tax and a municipal khatha was assigned. He claimed that municipality was collecting the property tax in respect of the pent house. He further contends that he received a show cause notice from the defendant - municipality, wherein it was alleged that the plaintiff had constructed an ATM room in the ground floor by encroaching the set back area and also constructed a pent house on the terrace. He claimed that the notice was issued at the instance of some occupants of the apartment and thus he filed a suit for perpetual injunction to restrain the defendant from demolishing ATM room in the ground floor and pent house in the top floor. (iii) The suit was contested by the defendant which contended that the construction of ATM room in the ground floor and a pent house on the terrace floor were illegal and that - 4 - NC: 2025:KHC:6918 WP No. 6820 of 2021 the office bearers of the apartment owners' association had made several complaints to the defendant about the unauthorised construction. It also claimed that the construction was without proper plan and licence and therefore, the same had to be brought down to ensure compliance of law. (iv) An application was filed by the plaintiff for interim injunction to restrain the defendant from demolishing construction, which also was opposed by the defendant on the same lines. (v) The Trial Court after noticing the contentions of the plaintiffs and defendants, rejected the application in terms of order dated 22.11.2018 following which, an appeal was filed by the plaintiff in M.A.No.36/2018 which was also dismissed in terms of an order dated 15.02.2021. 3. Being aggrieved by the said orders, the plaintiff is before this Court in this writ petition. 4. The learned counsel for the plaintiff contends that the construction put up by the plaintiff was in accordance with the plan sanctioned in so far as the ground floor is concerned. In so far as the pent house is concerned, he submits that the - 5 - NC: 2025:KHC:6918 WP No. 6820 of 2021 property was already assessed to tax and a separate assessment number was assigned to the pent house and therefore, the defendant is estopped from now claiming that the construction was unauthorised and illegal. 5. Per contra, the learned counsel for the defendant submits that a suit before the Civil Court was not maintainable, as the plaintiff could have replied to the show cause notice issued by the defendant. He submits that even if a confirmation order is passed to pull down the construction put up by the plaintiff, the appropriate remedy is to go before the regional commissioner. Therefore, he contends that the impugned orders passed by the Trial Court and upheld by the Appellate Court are just and proper and does not warrant any interference. 6. A perusal of the averments of the plaint shows that the plaintiff was aware that a show cause notice was issued by the defendant calling upon him to show cause as to why action should not be initiated in accordance with the provisions of the Karnataka Municipalities Act, 1964. The plaintiff instead of replying to the show cause notice, has rushed to the Court for an order of injunction to restrain the defendant from - 6 - NC: 2025:KHC:6918 WP No. 6820 of 2021 performing its statutory duties. If the plaintiff was aggrieved by the show cause notice, he had to pursue the remedy available to him under the Karnataka Municipalities Act and not to file a civil suit to restrain the defendant from performing its statutory duties. The Trial Court has therefore considered the application for interim injunction and has rightly rejected the same. 7. The Appellate Court also has recorded a finding that the defendant cannot be restrained from performing its statutory duties. Therefore, there is no error apparent on the face of record warranting interference in a proceeding under Article 227 of the Constitution of India. 8. Hence, writ petition is dismissed. However, it is always open for the plaintiff to file his reply to the show cause notice. If a reply is filed, the defendant shall proceed in accordance with law. Sd/- (R. NATARAJ) JUDGE HJ List No.: 1 Sl No.: 10