Karnataka High Court
Sri S Rajkumar Pai vs Dr E Virupakshappa on 30 March, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO. 11045/2017 (GM-CPC)
BETWEEN:
Sri S.Rajkumar Pai, 50 years,
S/o.Srinivas Pai, R/o. #28/A1,
100 Ft Road, Indiranagar,
Bengaluru - 560 038. ... Petitioner
(By Sri Vishwajith Shetty S. Adv.)
AND:
1. Dr.E.Virupakshappa, 51 years,
S/o. C.Eshwarappa,
R/at #37/1, 2nd Main,
9th Cross, P.J.Extension,
Davanagere - 577 002.
2. Smt. Anupama, 41 years,
W/o. Dr.E.Virupakshappa,
R/at # 37/1, 2nd Main,
9th Cross, P.J.Extension,
Davanagere - 577 002. ... Respondents
This writ petition is filed under article 227 of the
constitution of India, praying to quash order Annexure-
A dated 28.02.2017 made in M.A.No,.54/2016 by the
Court of Principal Senior Civil Judge, Davanagere.
This petition coming on for 'Preliminary Hearing'
this day, the court made the following:
2
ORDER
This is a defendant's writ petition questioning the correctness and legality of the order dated 28.02.2017 passed in M.A.No.54/2016 by the Principal Senior Civil Judge, Davangere, whereunder the order passed by the Additional Civil Judge, Davangere on I.A.1 in O.S.No.181/2016 dated 26.10.2016 rejecting the prayer for temporary injunction sought by the plaintiff came to be set aside and the appeal filed by the defendant came to be allowed.
2. Respondents- plaintiffs have instituted a suit in O.S.181/2016 against the appellant-defendant for the relief of permanent injunction, restraining the defendant from interfering with their possession and enjoyment of "A, B & C" schedule properties, contending interalia that the defendant who is abutting and adjacent owner of the property on the northern side, has attempted to put up construction without leaving set back and contrary to the building licence and plan approved by the Municipal Corporation, Davangere. An application 3 U/o. 39 Rule 1 and 2 of CPC also came to be filed, seeking grant of temporary injunction.
3. The Trial Court after considering the rival contentions held that it had no jurisdiction to adjudicate the claim of the plaintiffs on account of plaintiffs having not approached the appropriate authority for violating the building bye-laws and description of the property belonging to the defendant has not been indicated in the plaint schedule property and there is no prima-facie case in favour of plaintiffs. As such, the trial court rejected the application.
4. Being aggrieved by the same, an appeal was preferred by the unsuccessful plaintiffs. The lower appellate court after re-appreciating the pleadings of the parties, has considered the development which took place during the pendency of the suit whereunder, a memo of undertaking was filed by the defendant on 07.04.2016 agreeing thereunder that he would not proceed with the construction in his property till completion of construction of the compound wall of the 4 plaintiff on the northern side of the plaintiffs' property and had also agreed to pay cost of construction of compound wall, cost of damaged compound wall and cost of repair of car belonging to the plaintiffs as ground to grant temporary injunction since the averments made in the memo would indicate that defendant himself has admitted about his illegal acts and also establishes that on account of the defendant not taking precautionary measures while carrying out excavation of earth work in his property while putting up construction which had resulted in damage being caused to plaintiff's property is a ground to allow the appeal and to grant an order of grant of temporary injunction in favour of the plaintiff.
5. Learned counsel-Sri.S.Vishwajith Shetty appearing for the writ petitioner, by supporting the order passed by trial court, would contend that principal grievance of plaintiffs before the trial court was cost of damaged compound wall and petitioner/defendant had already paid Rs.9,66,298/- to the plaintiff and to the said effect, a memo had also 5 been filed on 07.04.2016 and the contents of the memo swayed in the mind of the appellate court to arrive at an erroneous conclusion that defendant had committed illegal act and he would also submit that finding of the appellate court there is no set back left by the defendant is erroneous finding, without considering the relevant facts. Hence, he prays for allowing the appeal and seeks for order of trial court being restored.
6. Per contra, Sri. M.V.Hiremath-learned counsel appearing for respondents/plaintiffs would defend the order of the first appellate court and contends that very fact that defendant had undertaken excavation of earth in his property without taking due care and caution is admitted by defendant and this had resulted in collapse of compound wall of plaintiff's building on the northern side of property and on account of this precise reason, defendant had filed a memo on 07.04.2016 undertaking to construct the compound wall or in the alternate to pay the plaintiff's cost of such construction and defendant had also undertaken that till such payment is 6 made, he will not proceed with the construction and yet had made attempts to proceed with the construction which resulted in lower appellate court taking into consideration these facts and to hold that plaintiffs have prima-facie case for grant of temporary injunction. He would also draw the attention of the Court to the memo dated 07.06.2014 whereunder defendant had undertaken not to put up construction except in accordance with approved building plan by leaving set backs as per the licence granted and this had not been followed by the defendant and as such, first appellate court has rightly granted an order of temporary injunction in favour of plaintiff and it does not call for interference. Hence, he prays for dismissal of the appeal.
7. Having heard the learned Advocates appearing for both parties and on perusal of the order passed by the first appellate court whereunder order of temporary injunction came to be granted, it would clearly disclose that sole factor which swayed in the mind of the first 7 appellate court to arrive at conclusion that construction being put up by defendant is illegal construction, was on the basis of the memo dated 07.04.2016 filed by defendant. Copy of said memo is annexed to the statement of objections filed by the plaintiff in this appeal as per Annexure-R1. Perusal of same would clearly disclose that defendant has undertaken thereunder that he would not proceed with the construction in his property till completion of the construction of compound wall on the northern side of the property (plaintiffs' property) which belonged to plaintiff. Defendant had also undertaken to pay the cost of construction of compound wall to the plaintiff which was the main dispute between the parties before the trial court. On the basis of undertaking so given by the defendant, first appellate court has formed an opinion that on account of defendant having agreed to pay cost of construction of compound wall would be a fact indicating the act of defendant being illegal. 8
8. The photographs produced by both the parties are available in the record. On perusal of same it would clearly disclose that construction of building on the northern side of A, B and C suit schedule property is the dispute. Defendant has undertaken construction in his property. The building licence issued by the jurisdictional municipal authority dated 30.01.2015 in favour of defendant would disclose that plan is approved for construction of cellar, ground floor, first floor and second floor, as could be seen from the photographs. The excavation work has been undertaken by defendant in order to put up concrete bedding on the northern side of plaintiff's property. Question would be whether that itself would be a ground for the plaintiffs for alleging violation of building bye-law by defendant. As to whether structures put up by defendant is in violation of bye-laws or relevant set back has not been left by defendant would have to be examined by the jurisdictional municipal authority and if it is found to be correct they would initiate appropriate proceedings against defendant for violation of building licence 9 conditions. In fact, photographs of the existing building of defendant's property is also made available by learned counsel for petitioner. Perusal of same would clearly indicate that compound wall of plaintiffs' property has been completed and building existing in defendant's property as reflected in the photographs, would also prima-facie indicate the set back on southern side of defendants property or the northern side of the plaintiffs property has been left.
9. It is the three ingredients which are required to be considered while granting or rejecting temporary injunction namely, prima facie case, balance of convenience and irreparable loss and injury. The claim of plaintiffs during the course of proceedings which also came to be accepted by the defendant, resulted in payment by defendant to plaintiff the cost of damaged compound wall. It is not in dispute that during the course of proceedings, defendant had paid Rs.9,66,298/- to plaintiff. In fact plaintiffs themselves admit receipt of the amount. However, grievance of the 10 plaintiffs is that additional and supplementary bills have been submitted by them to defendant and same has not been paid by the defendant and as such defendant should be restrained from proceeding with further construction in his property. As to what was the height of the compound wall which was existing at the time it was fell down during the excavation of earth work carried out by the defendant and other details thereof cannot be gone into in the present suit in the present form. In other words, if there is any claim for damages by plaintiffs they will have to work out their rights in the manner known to law. However, under the guise of recovering alleged amounts said to have been spent by them for putting up of the compound wall, they cannot be heard to contend that defendant should not be allowed to continue construction of his building in the property belonging to him. Trial Court had taken note of the "fact" namely, there being no dispute with regard to the title of the defendant and the building plan had been approved by the local municipal administration and licence granted in favour of the 11 defendant for which he had made all arrangements for putting up of construction as prime factors to deny grant of equitable relief to plaintiffs. Trial court had also taken note that balance of convenience is in favour of the defendant and by granting temporary injunction, the defendant would be put to irreparable loss and injury and as such if refused to grant an order of temporary injunction in favour of plaintiff.
10. However, the first appellate court on the basis of inference drawn namely, that the compound wall of the plaintiff was damaged due to the illegal act of the defendant and on account of set back having not been left by the defendant, that is 3 feet set back on the northern side at the time of carrying out excavation of earth work as already observed herein above as a ground to grant order of temporary injunction in favour of plaintiff which is contrary to existing facts. It cannot be gain said by the plaintiff that in set back area defendant could not have carried out excavation work in his property. In other words, for the purpose of leaving 12 set back and reinforcement of building if defendant has excavated the earth and has embedded the earth below ground level with concrete and thereafter at ground level he has left 3 feet set back, it may be in compliance with building licence and probably because of this precise reason Municipal Authorities have found there is no violation of building licence conditions. In that view of the matter, the finding recorded by the trial court could not have been reviewed by the appellate court. Hence, I proceed to pass the following ORDER
(i) Writ petition is allowed.
(ii) Order passed by the Principal
Senior Civil Judge, Davangere
dated 28.02.2017 in
M.A.No.54/2016 is hereby set
aside and order passed in
O.S.181/16 by the Additional
Civil Judge, Davangere dated
26.10.2016 is restored.
(iii) It is also made clear that trial
court shall not be influenced by
the observation made by this
order while disposing of the suit
on merits and plaintiffs would be
at liberty to proceed against the
defendant for recovery of any
13
amount/s due to them in the
manner known to law.
(iv) No order as to costs.
SD/-
JUDGE
PN/JS