IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL NO.858/2019 (CPC) BETWEEN:
SAVITHRAMMA W/O MAHADEV AGED 56 YEARS RESIDING AT NO.8, 4TH MAIN ROAD 4TH CROSS, MICO LAYOUT J.C.NAGAR BANGALORE – 560 086 … APPELLANT (BY SRI B.S.RAGHU PRASAD, ADVOCATE) AND:
1. N.RAGHUPATHI S/O K.NARASIMHAN AGED 62 YEARS 2. SMT. K. INDRANI W/O N.RAGHUPATHI AGED 51 YEARS BOTH ARE RESIDING AT NO.117/A 4TH MAIN, 4TH CROSS MICO LAYOUT, J.C. NAGAR MAHALAKSHMIPURAM, KURUBARAHALLI BANGALORE - 560 086 3. THE COMMISSIONER BRUHATH BANGALORE MAHANAGARA PALIKE HUDSON CIRCLE BANGALORE – 02 4. THE ASST. EXECUTIVE ENGINEER BRUHATH BANGALORE MAHANAGARA PALIKE WARD NO.68, MAHALAKSHMIPURAM KURUBARAHALLI BANGALORE – 560 086 5. THE TASK FORCE BRUHATH BANGALORE MAHANAGARA PALIKE HUDSON CIRCLE BANGALORE – 02 6. THE ASST. REVENUE OFFICER BRUHATH BANGALORE MAHANAGARA PALIKE WARD NO.68, MAHALAKSHMIPURAM KURUBARAHALLI BANGALORE – 560 086 …RESPONDENTS (BY SRI SYED KASHIF ALI, ADVOCATE FOR R1 & R2; SRI AMIT DESHPANDE, ADVOCATE FOR R3, R4 & R6 R5 IS SERVED) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 04.12.2018 PASSED ON I.A.NO.2 IN O.S.NO.7384/2018 ON THE FILE OF III ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY (CCH-25), PARTLY ALLOWING I.A.NO.2 FILED UNDER ORDER 39 RULES 1 & 2 CPC.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Defendant No.1 in O.S.No.7384/2018 on the file of III Additional City Civil and Sessions Judge, Bengaluru, has preferred this appeal being aggrieved by the order dated 04.12.2018 on I.A.No.2/2018.
2. Heard Sri B.S.Raghu Prasad, learned counsel for the appellant, Sri Syed Kashif Ali, learned counsel for respondent nos.1 and 2 and Sri Amit Deshpande, learned counsel for respondent nos.3, 4 and 6.
3. Plaintiffs’ suit is for permanent injunction to restrain defendant No.1 from interfering with their peaceful possession and enjoyment of plaint schedule property and putting up any further construction in the encroached portion of site Nos.7 and 8 situated in 4th Main Road, 4th Cross, Mico Layout, J.C.Nagar, Mahalakshmipuram, Kurubarahalli, Bengaluru – 560 086. They have also claimed for mandatory injunction to remove illegal columns and structures put up by defendant No.1 in the plaint schedule.
4. According to the plaintiffs, first defendant’s property is situated on the western side of their property. She started construction by encroaching upon their property and violating the sanctioned plan issued by the Corporation. Defendant No.1 disputes encroachment and violation of the sanctioned plan. She has also taken a contention that whatever the construction she has undertaken is strictly in accordance with the sanctioned plan.
5. The trial court, on considering the case of the plaintiffs and defendant no.1, has held that the plaintiffs have not made out a prima facie case to show that there existed a compound between the two properties. However, it has come to conclusion that the construction undertaken by defendant No.1 is not in accordance with the sanctioned plan. It has taken note of the fact that the Corporation has initiated action against defendant No.1 under Section 321 of the Karnataka Municipal Corporations Act, 1976. Having observed like this, the trial court further holds that merely because defendant No.1 has undertaken construction by violating building plan towards eastern side of her property the entire construction cannot be stopped and there cannot be blanket ban on the whole construction. When the plaintiffs’ grievance is only restricted to protect their possession towards western side of their property, the ends of justice would be met if defendant No.1 is restrained from putting up construction only towards eastern side of her property and western side of item nos.1 & 2 of the plaint schedule. Giving these reasons, the trial court has restrained defendant No.1 from putting up construction towards eastern side of her property and western side of suit item nos.1 & 2 till the disposal of the suit.
6. If the impugned order is examined in the light of the rival contentions, it can be said that the trial court has come to proper conclusion to protect the interest of the plaintiffs and defendant No.1 till the disposal of the suit. The discretion is properly exercised. Under such circumstances, there cannot be any interference with the impugned order. However, counsel for the appellant submits that entire construction is completed and because of the impugned order, defendant No.1 is not in a position to complete the finishing work. He has also produced photographs to show that the construction work is over and what is remaining is to attend to the finishing work. In these circumstances, defendant No.1 is permitted to attend to the finishing work subject to condition that she should not undertake further construction. With these observations, the writ petition is disposed of.
The Corporation is at liberty to take action if the construction is not according to the sanctioned plan.
Appellant’s counsel submits that the appellant does not press I.A.No.3/2019. Therefore, it is dismissed.
Sd/- JUDGE PKS/hkh.