Karnataka High Court
Sri.Veerabhadrappa vs Sri.A.Nagaraju S/O Annaihappa on 5 November, 2012
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.NO.5414/2009
BETWEEN:
SRI.VEERABHADRAPPA
S/O LATE KRISHNAPPA
AGED ABOUT 60 YEARS
R/AT NO.76, 6TH CROSS
SAPTHAGIRI LAYOUT
THINDLU VILLAGE
VIDYARANYAPURA
BANGALORE - 97
... APPELLANT
(BY M/S.D R P BABU & ASSOCIATES, ADVS.)
AND:
1. SRI.A.NAGARAJU
S/O ANNAIHAPPA
AGED ABOUT 54 YEARS
RESIDING AT NO.136
TINDLU VILLAGE
VIDYARANYAPURA POST
YELAHANKA HOBLI
BANGALORE NORTH TALUK
2. SRI D.KRISHNA REDDY
S/O SRI DORESWAMY REDDY
AGED ABOUT 56 YEARS
R/AT NO.82/1, 4TH CROSS
SBM COLONY, BRUNDAVAN NAGAR
MATHIKERE, BANGALORE 54
... RESPONDENTS
(BY SRI A SOMARAJU, ADV. FOR R-1
SRI S.V.BHAT, ADV. FOR R-2)
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MFA FILED U/O.43 RULE 1(r) R/W SEC. 104 OF CPC
AGAINST THE ORDER DT. 23.6.2009 PASSED ON
APPLICATION PASSED IN O.S.NO.5663/2008 ON THE FILE
OF THE XXVII ADDL. CITY CIVIL JUDGE, BANGALORE,
DISMISSING THE APPLICATION FILED U/O.39 RULES 1
AND 2 R/W SEC.151 OF CPC FOR T.I.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned Counsel for parties. The learned trial Judge has dismissed the application filed by plaintiff for grant of temporary injunction to restrain defendants to put up construction in the suit schedule property inter alia holding that defendants have put up construction in violation of building bye-laws and approved plan. The construction put up by defendants is causing obstruction to free flow of air and light to plaintiff's house. The defendants have not maintained set backs. The violation of building bye-laws and sanctioned plan by defendants amounts to actionable nuisance. Therefore, plaintiff has sought for relief of permanent injunction and also for mandatory injunction.
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2. Defendants 1 and 2 have contended that they are putting up construction in accordance with sanctioned plan. The plaintiff had filed the suit after two years of construction of building was commenced. If plaintiff succeeds, he would be entitled to decree of mandatory injunction for demolition of such portion of building which is constructed in violation of bye-laws and sanctioned plan. B.B.M.P (licensing authority) has been arrayed as third defendant before the trial Court. For the reasons best known to plaintiff-appellant, B.B.M.P has not been made a party to this appeal.
3. It is seen from the impugned order that the learned trial Judge has held that plaintiff has approached the Court, two years after defendants' commenced construction. The construction put up by defendants has reached 4th floor. The plaintiff has slept over his rights and woke up only when construction reached 4th floor. In the circumstances, the trial Court has held that plaintiff has not made out a prima facie case.
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4. As already stated, plaintiff sought for relief of mandatory injunction. If plaintiff succeeds in the suit, plaintiff would be entitled to decree of mandatory injunction for demolition of the portion of building as prayed for in the suit. Therefore, the learned trial Judge was justified in refusing to grant an order of temporary injunction. I do not find any reasons to interfere with the impugned order. The petition is accordingly dismissed.
Sd/-
JUDGE nas.