IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.2487 OF 2017(CPC) BETWEEN Dr. Rajendra K.M., Aged about 60 years, S/o. Late M.Krishnamurthy, R/at No.3, 1st Main, CKC Garden, Bengaluru-560027.
(By Sri. Rajadithya Sadasivan, Advocate) AND 1. Bruhat Bengaluru Mahanagara Palike, N.R.Square, Bengaluru-560001 Represented by its Commissioner 2. Sri. K.S.Sudarshan, Aged about 57 years, S/o. Late K.Srinivasulu 3. Kum. K.S.Shruthi, Aged about 25 years, D/o. K.S.Sudarshan, 4. Sri. K.S.Shreyas, Aged about 22 years, S/o. K.S. Sudarshan, …Appellant 5. Sri. K.S.Prasad, Aged about 54 years, S/o. Late K.Srinivasulu 6. Master K.P.Shivashish, Aged about 16 years, S/o. K.S.Prasad, 7. Kum. K.P.Khushi, Aged about 9 years, D/o. K.S.Prasad, Respondents 6 & 7 represented by their father and natural Guardian the 5th respondent 8. Sri. K.M.Srinivas, Aged about 30 years, S/o. Late K.S.Mohan, Respondents 2 to 8 residing at No.1, 3rd Cross, Nehrunagar, Sheshadripuram, Bengaluru-560020.
9. M/s. Legacy Global Projects Pvt Ltd., #333, Thimmaih Road, Bengaluru-560052 Represented by its Director Sri. Kiran Gowda.
(By Sri. T.S.Satish Babu, Advocate, for R1, …Respondents Sri. Sharath S. Gogi, Advocate for R2 to R9) This MFA is filed under Order 43 Rule 1(r) of CPC read with Section 103 of CPC against the order dated 01.02.2017 passed on I.A.No.2 in O.S.No.18/2017 on the file of the XL Additional City Civil & Sessions Judge, Bengaluru (CCH-41), dismissing I.A.No.2 filed under Order 39 Rule 1 & 2 read with Section 151 of CPC.
This MFA coming on for final disposal this day, the Court delivered the following:
JUDGMENT The plaintiff in O.S. No.18/2017 on the file of Addl. City Civil Judge has preferred this appeal challenging the dismissal of application for temporary injunction (IA.II) by order dated 01.02.2017.
2. I have heard the arguments of learned counsel for the appellant/plaintiff and the respondents/defendants 2 to 9.
3. The plaintiff’s case is that the plaint schedule property belongs to defendants 2 to 9. In all the property documents the eastern boundary is shown as government land. They entered into a Joint Development Agreement with defendant no.9 on 24.07.2013. Defendant no.9, while undertaking construction in the plaint schedule property encroached on the Government vacant land. They have excavated the earth upto a depth of 40 ft. During excavation the defendant no. 9 is blasting and drilling the rock causing sound and air pollution. The rock provides a lateral support to properties of the plaintiff and other surrounding properties. As a result of blasting of rock, cracks are developed in the walls of the houses. The construction is without licence and sanction from the concerned authorities. The entire construction is illegal. The first defendant who is supposed to take action, has remained silent. The plaintiff also made an application for temporary injunction to restrain defendants no.2 to 9 from putting up any construction and undertaking excavation in the plaint schedule property.
4. The defendants no.2 to 9 contested the application.
They have stated that the construction is not illegal. They obtained permission/licence from all the concerned authorities. The plaintiff has suppressed the fact about existence of a road between the plaintiff’s house and the plaint schedule property. There is no encroachment on any Government land. The blasting of rock is already over and it has not caused nuisance to anybody. The intention of the plaintiff is to grab money from the defendants. Defendant no.9 has taken precautionary measures by fencing the entire property with sheets. Defendant no.1 is satisfied with the precautionary measures taken by defendant no.9. The plaintiff has no manner of right to interfere with construction. Therefore there is no case for granting temporary injunction.
5. The trial court has declined to grant temporary injunction mainly observing that the construction undertaken by defendants no. 2 to 9 is not illegal, as they have obtained necessary permission and licences from concerned authorities. The plaintiff has not specifically denied the title of defendants no.2 to 8 over the plaint schedule property and he has not produced any document in proof of his case that the proposed construction is harmful to his interest. There is a road in between two properties. Therefore prima facie case is not made out.
6. The learned counsel for appellant has argued on lines with contents of plaint and affidavit filed along with application for temporary injunction. He very specifically referred to boundaries mentioned in the documents relating to plaint schedule property and argued that eastern boundary is clearly mentioned in all those documents and therefore the defendants no. 2 to 9 cannot deny existence of Government land. The construction undertaken there is dangerous not only to the plaintiff’s property but also to the properties of others. The trial court has failed to consider these aspects. Thus seen order of injunction is necessary to be granted. He has placed reliance on a judgment of Supreme Court in Maharwal Khewaji Trust (Regd.), Faridkot vs Baldev Dass (AIR 2005 SC 104), in support of his argument that during pendency of litigation, the courts should protect status quo as on the date of suit.
7. The respondents counsel argued that the entire case of plaintiff is false. He has approached the court with unclean hands and has suppressed the facts. Deliberately he has not stated about existence of Government Road. In some of the documents concerning the plaint schedule, the eastern boundary might have been shown as Government land, but existence of road is not disputed. The road is situated between plaintiff’s property and the plaint schedule property. Therefore there is no chance of encroaching on any Government land. With regard to construction, it is his argument that only after obtaining necessary permission and licence from the first defendant and authorities like Pollution Control Board, Fire Force Department, Air Port Authority of India, BSNL, SCIAA and KSPCB, the construction was commenced. He submitted that the boulder rock was cut and removed by chemical processing to avoid damage to the nearby buildings. Excavation work is already over. The plaintiff is aware of all these matters, yet he approached the court only with a view to making illegal gain from the defendants. Therefore he argued that the trial court has come to right conclusion to deny temporary injunction.
8. Now on perusal of the materials placed before the court, what is forthcoming is that the plaintiff refers to title deeds pertaining to schedule property to assert that there is a government land to the East. It may be true that Eastern boundary is shown like that. At the same time, the defendant 2 to 9 say that Eastern boundary is a government road which has been there for several years and the photographs which they have produced show a road being there. No public document is produced by the plaintiff about existence of a government property, and its area etc. The defendants 2 to 9 have produced documents to show that they have obtained permission, licence and sanctioned plan from various authorities. If there existed any government land apart from the road, the concerned authorities, especially, defendant no.1 would not have permitted the construction. Moreover it is not the case of the plaintiff that a government land exists apart from the road.
9. With regard to excavation, the photographs produced by the defendants, which the plaintiff has not disputed show metallic fence being put up around the construction site. Excavation appears to have been completed. According to defendants no. 2 to 9, the rock deposit was cut and removed by chemical process. If this is true, hardly any damage to the neighbouring buildings can be expected. If the defendants had undertaken removal of the rock deposit by blasting it, certainly there is possibility of damage being caused to nearby buildings and in that event, at least some of the residents of that locality would have complained. If really the plaintiff’s building is damaged due to excavation work, it was not difficult for him to have produced a photograph of his house. Moreover the reliefs that the plaintiff has claimed appear to be like that can be claimed in a representative suit under Order 1 Rule 8 of Civil Procedure Code. But what is seen is individual interest of the plaintiff, which is difficult to be accepted. This being the scenario, I find it difficult to take a different view than expressed by the trial court. Consequently this appeal fails and it is dismissed with costs.
SD/- JUDGE sd