- 1 - HC-KAR NC: 2025:KHC:30981 WP No. 4375 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL WRIT PETITION NO. 4375 OF 2025 (GM-CPC) BETWEEN: 1. M NAGARAJU SON OF C. MARIYAPPA AGED ABOUT 63 YEARS 2. A.B. USHA WIFE OF M. NAGARAJU AGED ABOUT 55 YEARS BOTH ARE RESIDING AT NO. 401, SITE NO'S 16 AND 17, ASSESSMENT NO. 2/1, ULLALU VILLAGE, YESHWANTHPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU -560056 …PETITIONERS (BY SRI. VIVEKANANDA S, ADVOCATE) AND: 1. K G ESHWARANAIK S/O GOMA NAIK AGED ABOUT 51 YEARS R/AT A-5, 1ST CROSS, 5TH BLOCK, VISVESHWARAIAH LAYOUT, POST-OFFICE ROAD, ULLALU, WARD NO.130, BENGALURU 560 056 ALSO AT: No.24, 3RD CROSS, 3RD MAIN ROADJNANA GANGA NAGAR, BENGALURU – 560 056 Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30981 WP No. 4375 of 2025 2. THE COMMISSIONER, CORPORATION OF THE CITY OF BENGALURU (BCC) BBMP, N R SQUARE BENGALURU -560002 …RESPONDENTS (BY SRI. AKASH V.T., ADVOCATE FOR R1 SRI. K.S. MALLIKARJUNA REDDY, ADVOCATE FOR R2) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD. 16.01.2025 IN O.S.NO. 1184/2022 PASSED BY THE HON’BLE SECOND ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRCIT, BENGALURU AT ANNX-A. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL ORDER 1. This petition is filed by the defendants in O.S.No.1184/2022 being aggrieved by the order dated 16.01.2025, passed on I.A.No.9 by which the trial Court allowing the application filed under Order 26 Rule 9 read with 151 of CPC has appointed Assistant Executive Engineer, Technical Expert in BBMP Town Planning Department, Rajarajeshwari - 3 - HC-KAR NC: 2025:KHC:30981 WP No. 4375 of 2025 Zone, Ward No.130, Ullalu Ward, BBMP, Yeshwanthpura Hobli, Bengaluru North Taluk, to inspect ‘B’ schedule property and to report deviation and illegality if any in the constructed structure on ‘B’ schedule property in accordance with BBMP bye laws. 2. The facts of the case are that, the petitioners herein allegedly violated the building bye laws and sanction plan while putting up construction over ‘B’ schedule property. Proceedings under the provisions of Section 248 of the Bruhat Bengaluru Mahanagara Palike (BBMP) Act, 2020 (hereinafter referred to as ‘BBMP Act’ for brevity) have already been initiated. That upon the challenge made by the petitioners being aggrieved by the said proceedings, the Tribunal had allowed the appeal, remanding the matter to the Commissioner to reconsider the matter afresh in accordance with law. Subsequent to the said order, the Commissioner of BBMP has held that there is a violation by the petitioners herein in putting up the - 4 - HC-KAR NC: 2025:KHC:30981 WP No. 4375 of 2025 construction of the building on the ‘B’ schedule property, as against which the petitioners have initiated proceedings in W.P.No.21527/2021, which is pending consideration before this Court. 3. In the meanwhile, the respondent No.1/plaintiff has initiated the suit in O.S.No.1184/2022 for the following reliefs. a. by an order of declaration to declare that the defendants 1 and 2 are constructing an illegal and unauthorised building upon the schedule B property and b. by an order of mandatory injunction, directing the defendants 1 and 2 to demolish the illegal and unauthorized construction put up on the schedule B property and c. by an order of mandatory injunction, directing the 3rd defendant to initiate action against the defendants 1 and 2 as per Sec.321(1)(2) and (3) of KMC Act, 1976 with regard to the illegal and unauthorized construction put up by the defendants 1 and 2 upon the schedule B property, and d. grant an order of permanent injunction, restraining the defendants 1 and 2, their - 5 - HC-KAR NC: 2025:KHC:30981 WP No. 4375 of 2025 agents, men or anybody under or through them from proceedings further with the illegal and unauthorized construction over the schedule B property, and e. grant such other relief/s as this Honourable Court deems fit to the circumstances of the case, including the costs of proceedings, in the ends of justice. 4. In the said suit the plaintiff has filed the above application I.A.No.9 under Order 26 Rule 9 of CPC seeking appointment of the Commissioner which is allowed by the trial Court by the impugned order as noted herein above. Hence, the present petition. 5. Learned counsel for the petitioners submits that the suit filed by the respondent No.1/plaintiff is not maintainable inasmuch as no substantial relief is sought for. He submits that the trial Court has no jurisdiction to entertain the suit in the light of the proceedings already initiated under the provisions of the BBMP Act, which expressly excludes the jurisdiction of the Civil case in the matter. Hence, he - 6 - HC-KAR NC: 2025:KHC:30981 WP No. 4375 of 2025 submits that in the suit of that nature, the order appointing a commissioner to verify and report violation of the construction, if any, is one without jurisdiction. Hence, he submits that there is an irregular and illegal exercise of jurisdiction by the trial Court, warranting interference at the hands of this Court. 6. On the other hand, learned counsel for the respondent submits that though the suit is one for Mandatory Injunction, the plaintiff has elaborately pleaded at paragraph No.4 of the plaint with regard to the rights of the plaintiff being affected in view of the illegal construction put up by the petitioners on the ‘B’ schedule property. He submits that though the plaintiff has not sought for specific/substantial relief pertaining to his easementary rights, the suit nonetheless is maintainable since the illegal construction being carried on by the petitioner/defendant is directly affecting the rights of - 7 - HC-KAR NC: 2025:KHC:30981 WP No. 4375 of 2025 the plaintiff. He further submits, alternatively the respondent/plaintiff may be reserved with liberty to seek substantial relief in furtherance of the pleadings already made in the suit. He also submits that the petitioners would also take steps to implead himself in the proceedings, which is pending consideration in W.P.No.21527/2021, seeking appropriate remedy. 7. Heard and perused the records. 8. Admittedly, the suit is filed for the relief of injunction. No substantial relief regarding violation of easementary right is sought. Violation of the building plan, if any, is already the subject matter of the proceedings in W.P.No.21527/2021, which in turn arise out of order passed by jurisdictional Tribunal under Section 248 of BBMP Act. The issue pertaining to the violation of the building plan is governed under the provisions of Section 248 of the BBMP Act. The Civil Court would get the jurisdiction to determine the - 8 - HC-KAR NC: 2025:KHC:30981 WP No. 4375 of 2025 rights of the parties, when there is any claim with regard to violation of any civil rights, namely, easementary rights, if any, as claimed by the petitioners in the instant suit. 9. The application filed for appointment of Commissioner in the absence of any specific averment of violation of any easementary rights or any relief sought thereof would be of no consequence. 10. However, in the light of the submissions made by the learned counsel for the respondent/plaintiff of he intending to seek amendment of the prayer in the suit and seeking to implead himself in the writ petition, reserving such liberty to the respondent/plaintiff, the present petition is allowed. 11. Order dated 16.01.2025 in O.S.No.1184/2022 passed by the learned II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, is set aside. - 9 - HC-KAR NC: 2025:KHC:30981 WP No. 4375 of 2025 12. In view of the disposal of the petition, pending applications if any, shall stand disposed of. Sd/- (M.G.S. KAMAL) JUDGE SKS List No.: 1 Sl No.: 27