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2001 DIGILAW 34 (KAR)

K. L. NARAYAN MURTHY v. RAJINI

2001-01-09

R.GURURAJAN

body2001
R. GURURAJAN, J. ( 1 ) THIS appeal by the defendants-appellants is filed aggrieved by the order dt. 9-2-2000 passed on I. A. I. in O. S. No. 203/2000 by the Additional City Civil Judge, Bangalore. ( 2 ) PLAINTIFF/respondent filed a suit in O. S. No. 203/2000 seeking for an injunction against the appellant on the ground that the appellants/defendants are putting up construction over the first floor of the building in violation of Karnataka Municipal Corporation Act. Representations have been made by the plaintiff/respondent to the Corporation about the deviation committed by appellant/defendants in putting up construction in the suit schedule property. The defendants/appellants are putting up their construction abutting property of plaintiff/respondents. The deviation in construction would cause obstruction for free passage of air and light to the plaintiffs property. Under these circumstances a suit came to be filed. I. A. No. I was filed under Order 39, Rules 1 and 2 by plaintiff/respondent seeking ad interim order directing the appellant to maintain status quo in respect of further construction of the first floor of the suit schedule property in the light of the facts narrated above. Appellant/defendants opposed the application contending that the suit schedule property was allotted by BDA and a residential house was put up long ago. The plaintiff/respondent is in occupation of the first floor of the property on the western side of the property. The ground floor is in occupation and enjoyment of one Sri Vijay Mohan. He has not objected for the construction. Plaintiff/respondent has not stated as to how their rights are affected in the present case. It is further contended that the construction is already in progress and when it is in half way through this IA is filed seeking for an order against the appellant. Matter was contested. Learned Judge heard the matter. After hearing he passed the order allowing IA. The operative portion of the order is as under :"i. A. No. I is allowed. Defendants 1 and 2 are directed not to proceed with the further constructions of the 1st floor of the suit schedule building towards western side, that is, towards plaintiff's property till further orders. After hearing he passed the order allowing IA. The operative portion of the order is as under :"i. A. No. I is allowed. Defendants 1 and 2 are directed not to proceed with the further constructions of the 1st floor of the suit schedule building towards western side, that is, towards plaintiff's property till further orders. The concerned Executive Engineer of the 3rd defendant-authority is directed to inspect the suit schedule building and to take proper action if the construction being put up by the 1st and 2nd defendants in respect of 1st floor of the building is not in accordance with the building bye-laws of the Corporation, without being influenced by the observations made in this order. " ( 3 ) THIS order is challengd as I mentioned in this appeal. ( 4 ) MATTER was heard at great length. ( 5 ) THIS Court on 16-10-2000 issued a show cause notice to the Commissioner asking him to show cause as to why the orders of the Court were not complied with. An explanation was sought for from the Commissioner. The Commissioner in response to the same filed an explanation. This Court on 25-10-2000 after considering the explanation and after hearing the parties refused to vacate the interim order already granted at the instance of the appellants/defendants. Matter was ordered to be posted for final hearing and matter was heard on merits. ( 6 ) BOTH the counsel elaborately argued with regard to their stand in the matter. After hearing this order is passed by me as under : ( 7 ) IT is an admitted fact that the plaintiff/respondent is a neighbour and he is residing in a property adjacent to the suit schedule property. It is equally admitted fact that the defendant is putting up the construction in the first floor of the building which is situated towards western side of the suit schedule property. The trial Judge framed two points for his consideration in para 6. While considering point 1 the trial Judge only based on the photographs ruled that the construction of the first floor of the building appears to be not in accordance with building bye-laws. The trial Judge also ruled that defendant/appellants have put up one of the wall on the western side which is abutting water tank of the plaintiff. While considering point 1 the trial Judge only based on the photographs ruled that the construction of the first floor of the building appears to be not in accordance with building bye-laws. The trial Judge also ruled that defendant/appellants have put up one of the wall on the western side which is abutting water tank of the plaintiff. According to him the construction put up towards western side appears to be not in accordance with building bye-laws. The trial Judge relying on a judgment of this Court has ruled in para 11 that according to him the construction of the first floor of the building carried on by defendants 1 and 2 appears to be not in accordance with building bye-laws framed by 3rd respondent. It is under these circumstances he ordered status quo. In addition he also ordered the Exec. Engineer to inspect the suit schedule property and to take proper action if the construction is put up by the respondent is not in accordance with the building bye-laws. ( 8 ) IT is well settled that an injunction is a serious matter and it affects the rights of the either of the parties. Any interim injunction has to be based on sound principles of law including a prima facie case, irreparable injury, balance of convenience as held by catena of decisions. There should be proper pleadings forthcoming for grant of injunction by a court of law. In the case on hand a reading of the plaint would show of no factual foundation whatsoever in the pleadings. The plaintiff/respondent has only quoted various provisions of law and referred to their compliance in the pleadings. The Corporation has not filed any counter whatsoever. Even the prayer made by the plaintiff/respondent would show that what is sought for is only a declaration to the effect that the first floor construction in progress is not in accordance with the relevant provisions of the Corporation bye-laws. The second prayer is with respect to the inaction on the part of the Corporation in not exercising its power and a judgment is sought against 3rd defendant to initiate action against the appellants/defendants. In the light of the facts and the prayer I am at a loss to understand as to how the plaintiff can obtain a status quo of no further construction in the absence of any material foundations in the plaint/prayer before the Court. In the light of the facts and the prayer I am at a loss to understand as to how the plaintiff can obtain a status quo of no further construction in the absence of any material foundations in the plaint/prayer before the Court. In fact there is no prayer for injunction also in the plaint. All that plaintiff wanted is for a declaration against the defendants and that declaration is also for an action being taken against the appellant. ( 9 ) IN these circumstances and in the light of the plaint averments no case much less a prima facie case is made out warranting any restraint order not to proceed with the construction as has been done in the case on hand. The trial Judge in my opinion has committed a patent error in failing to notice this aspect of the matter in granting a interim order. It is well settled that the appellate Court can interfere with an order of the trial Court if the same is not based on legal principles and if it is capricious and arbitrary. In the case on hand in the light of plaint averments present order is nothing but an arbitrary order and require my interference. ( 10 ) THE learned Judge holds in para 8 that the stair case which is being put up towards western side is not in accordance with the building bye-laws of the Corporation. Which is that bye-law which comes in the way of construction of stair case is not forthcoming in the order. There is also no pleading to that effect in the plaint. In these circumstances the learned Judge in my opinion is not right in granting an injunction against the appellant. ( 11 ) EVEN otherwise the impugned order suffer from a patent illegality. The learned Judge himself thought fit that an inspection may be necessary in the matter of construction. Having come to such a conclusion the grant of stoppage of construction runs counter to a second direction by learned Judge. I am highly doubtful as to whether such a direction can be issued on the facts of this case. A restraint injunction could be granted only when a prima facie case is made out on pleadings and not in doubtful cases. There must be positive pleadings and positive material available on record warranting an injunction. I am highly doubtful as to whether such a direction can be issued on the facts of this case. A restraint injunction could be granted only when a prima facie case is made out on pleadings and not in doubtful cases. There must be positive pleadings and positive material available on record warranting an injunction. It is not on the basis of some presumption and assumption that the Court can restrain a neighbour from putting up further construction and on the basis of the photos. Any stoppage of construction would result in monetary loss in addition to avoidable difficulties to the neighbour. The balance of convenience and irreparable injury has also not been properly appreciated by the Judge on the facts of this case. ( 12 ) IN the case on hand at the instance of this Court an affidavit has been filed by the Corporation. The counsel for the Corporation stated before me that there is no violation on the western side of the first floor. In fact material on record and the impugned order only refer to the western side of the suit schedule property. A statutory authority represented by a counsel mentioned to me that there is no violation on the western side. In my view the order requires the interference in the light of the statement made before me. ( 13 ) THE counsel for the respondent relies on a judgment reported in ILR 1999 Kant 506 (sic ). That was a case decided on merits after evidence. It is not an order with regard to an interim application. Moreover a reading of the facts of that case would show that the Court on evidence found that the defendant has put up construction in violation of the provisions of the Karnataka Municipalities Act. It is also found that the permission granted by the Corporation was quashed by the High Court. In that case High Court also granted an injunction against the defendant from proceeding with the construction pursuant to above permission. It is in those circumstances the Court ruled that an injunction has to be granted. In the present case as I mentioned earlier there is no factual material available on record. Secondly matter is yet to be decided on merits. Therefore the said judgment cannot be made applicable to the present case. It is in those circumstances the Court ruled that an injunction has to be granted. In the present case as I mentioned earlier there is no factual material available on record. Secondly matter is yet to be decided on merits. Therefore the said judgment cannot be made applicable to the present case. Counsel however vehemently argued that if such constructions are allowed to come up it will be a sad day that parties would take law into their hands by putting up construction. This apprehension has no basis. In the case on hand as I mentioned earlier the Corporation has taken certain actions in the light of the complaint filed by the petitioner as I see from the notice issued under Sec. 321 dt. 12-5-2000. This notice is subsequent to the impugned order. Therefore the apprehension of the plaintiff cannot be accepted in the light of the subsequent action taken by the Corporation. Even otherwise if there is any inaction on the part of the Corporation or if there is any violation, then a remedy is certainly available to the plaintiff in the appropriate proceedings. On a mere assumption and presumption construction cannot be stopped. In these circumstances taking into consideration an overall view of the matter the interim injunction granted by the trial Court is set aside. I make it clear any of my observation made by me in the course of this order shall not be construed to be any order or finding on merits and I further make it clear that it is open to the parties to seek amendment of pleadings if they so desire before the trial Court. ( 14 ) WITH these observations this appeal is allowed but without any order as to costs. --- *** --- .