Karnataka High Court
Sri Suresh B V vs Sri N Venkatesh on 14 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:6252
MFA No. 739 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 739 OF 2023 (CPC)
BETWEEN:
1. SRI SURESH B.V.
S/O LATE VEERABHADARAIAH
AGED ABOUT 45 YEARS
R/AT NO.28/6, 20TH MAIN ROAD,
1ST MAIN, MARENAHALLI MAIN ROAD
VIJAYANAGAR
BENGALURU -560040
...APPELLANT
(BY SRI. SANJAY G., ADVOCATE)
AND:
1. SRI N. VENKATESH
S/O LATE U.NARAYANA SHET
AGED ABOUT 52 YEARS
R/AT NO.28/5, 20TH MAIN ROAD
Digitally signed
by SHARANYA T 1ST MAIN MARENAHALLI MAIN ROAD
Location: HIGH BENGALURU -560040
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. ABHINAV R., ADVOCATE FOR C/R)
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT.19.01.2023 PASSED ON I.A. NO.1 IN
O.S.NO.8165/2022 ON THE FILE OF THE X ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-26),
ALLOWING I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1
AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:6252
MFA No. 739 of 2023
JUDGMENT
Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.
2. This court earlier heard the learned counsel for the appellant and also the learned counsel for the respondent when the grounds are urged that no violation of plan and construction is continued in terms of the order passed by this court dated 09.02.2023. This court suggested to appoint a court commissioner. Hence, at the instance of both the learned counsel for the appellant and the learned counsel for the respondent, an Advocate Commissioner was appointed with consent of both the parties. Now the Commissioner has filed the report.
3. The Commissioner in presence of both the parties conducted the mahazar at the spot and also made the inspection and filed the report and has also drawn a rough sketch i.e., a setback sketch of ground floor, eastern portion of the property belonging to the appellant viz., Sri.Suresh B.V and also setback in respect of First floor, second and third floor and has given the report stating that the measurement of the -3- NC: 2024:KHC:6252 MFA No. 739 of 2023 setback between Eastern Portion of the property belonging to the respondent viz., Sri.N.Venkatesh and Western portion of the property belonging to the appellant viz., Sri.Suresh B.V. as per the approved building plan is 39.37 inches (3.2 feet) (1 meter) at the Southern End of the property belonging to the appellant and 47.24 inches i.e., (3.9 feet) (1.2 meters) at the Northern End. As per the measurements available at the location are provided by giving the details i.e., Point No.A to A1, Point No.B to B1, Point No.C to C1, Point No.D to D1, Point No.E to E1, Point No.F to F1, Point No.G to G1, Point No.H to H1, Point No.I to I1 and Point No.J to J1.
4. Having considered this report, the construction is not in accordance with the plan sanction in favour of the appellant. At no point, either A to A1 to J to J1, the setback is maintained in terms of the plan. This court had also earlier given permission to go ahead with the construction in terms of the plan. The Commissioner's report and also the setback area in respect of first floor it is noticed that an enclosed projection area on the first floor measuring about 37 inches (3.08 feet) East to West and 121 inches (10.08 feet) (3.07 meters) is put up abutting private property on the North Eastern portion of -4- NC: 2024:KHC:6252 MFA No. 739 of 2023 the appellant's building. The learned counsel submits that in respect of first and second floor, the setback is luck and having considered the report available at page 19 of the order and 19 of the report also very clear that particularly in para 5 that on first, second and third floor, towards the western portion of the property belonging to the appellant Sri.B.V.Suresh, setback area of 2 feet is uniformly left which is same as in the ground floor in this portion. There are chajjas for the windows in this setback area.
5. In respect of eastern portion and the first floor towards eastern portion belonging to the appellant Sri.B.V.Suresh, the setback area is the same as in the setback in the ground floor. It is noticed that an enclosed projection area in the first floor measuring about 37 inches (3.08 feet) East to West 121 inches (10.08 feet) (3.07 meters) is put up abutting the private property on the North Eastern Portion of the appellant's building which is in the setback area.
6. In para No.2 of the report indicates that towards the eastern side of the property belonging to the appellant Sri.B.V.Suresh and western side of the property belonging to -5- NC: 2024:KHC:6252 MFA No. 739 of 2023 respondent Sri.N.Venkatesh, the approved building plan File No.BBMP/Accused.Com/WST/0263/22-23 dated 07.07.2022 issued by the Bruhat Bangalore Mahanagara Palike, which has been handed over to the Commissioner shows that the setback area of 1 meter (3.2 feet) (39.37 inches) on the South Eastern side of the property belonging to the appellant Sri.B.V.Suresh i.e., the portion towards the road abutting the property of the respondent Sri.N.Venkatesh and 1.2 meters (3.9 feet) (47.24 inches) towards the North Eastern portion of the property belonging to the appellant that is abutting private property. Measurements of the above setback area towards eastern portion of the property belonging to the appellant is taken at the location (rough sketch with mahazar signed by all the parties) are as provided in the measurement sheet at page No.14-15. The setback area towards the eastern portion of the property belonging to the appellant that is abutting the property belonging to the respondent at the western side is different from that of the approved building plan.
7. Having considered the report, the construction is not in consonance with the approved building plan issued by the BBMP. When such being the case, the very contention of -6- NC: 2024:KHC:6252 MFA No. 739 of 2023 the learned counsel for the appellant that he left the set back in terms of the building plan cannot be accepted. Hence, I do not find any ground to interfere with the impugned order and the Trial Court in Para No.19 of the impugned order has observed that it is no doubt true that one of the serious allegations made by the applicant/plaintiff against defendant No.1 in this case is that defendant No.1 while putting up offending construction has violated the building bye-laws and has also constructed the building contrary to the sanctioned plan without leaving any required set back and prima-facie these allegations are touching the provisions of the Act, but at the same time it is equally relevant to note that the plaintiff has also sought for a comprehensive relief of declaration of his easementary rights to 'A' schedule property from 'B' schedule property and the said disputed issue will have to be necessarily dealt with and adjudicated only by the Civil Court and it cannot be dealt with by the competent authority. In other words, the jurisdiction of this Court in the facts and circumstances of the case cannot be said to be expressly ousted to entertain the present suit. Therefore, the exhaustive argument advanced on behalf of defendant No.1 that the issue regarding the violation of -7- NC: 2024:KHC:6252 MFA No. 739 of 2023 building bye-laws will have to be necessarily adjudicated by the competent authority and therefore the suit in the present form is untenable before this Court, cannot be sustained.
8. The Trial Court, having taken note of the very contentions of the respondent and also the appellant herein, taken note of the photographs and comes to the conclusion that one cannot conclusively hold that there is absolutely no space in between the properties, but from these prima-facie materials one could easily infer that the construction put up by defendant No.1 on his 'B' schedule property is just adjacent and abutting to 'A' schedule property. Whether there is no required set back being left by defendant No.1 as per the building bye- laws etc., is once again a matter of evidence which cannot be gone into at this pre-trial stage. Therefore, when these prima- facie materials are not specifically disputed or denied by defendant No.1, it has to be held that even the balance of convenience in this case certainly lies in favour of the applicant/plaintiff rather than the defendant No.1.
9. The finding given by the Trial Court in Para Nos.19 and 21 of the order with regard to considering the prima-facie -8- NC: 2024:KHC:6252 MFA No. 739 of 2023 case against the appellant and apart from that, when this Court has appointed the Court Commissioner, the report of the Court Commissioner is clear that construction is not in consonance with the approved plan. I have already pointed out that this Court had given permission to go ahead with the construction in terms of the plan, but the construction put up is not in terms of the plan. When such being the case, it is appropriate to confirm the order of the Trial Court granting an order of injunction against the appellant herein and the construction which has been made is in violation of the sanctioned plan. Hence, I do not find any ground to set aside the order of the Trial Court and arrive at an other conclusion.
10. In view of the discussion made above, I pass the following:
ORDER The appeal is dismissed.
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JUDGE SS,ST List No.: 1 Sl No.: 15