Bombay High Court
Dineshkumar Malharrao Kapadnish vs Shivaji Nathu Patil on 30 August, 2021
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
20 WRIT PETITION NO.9101 OF 2021
DINESHKUMAR MALHARRAO KAPADNISH
VERSUS
SHIVAJI NATHU PATIL
...
Advocate for Petitioner : Bali Harish S.
Adv. Mr. Ujwal Patil for respondent
...
CORAM : MANGESH S. PATIL,J.
DATE : 30/08/2021
PER COURT :
Heard.
2] Issue notice. The learned advocate Mr.Ujwal Patil waives service
for the sole respondent.
3] With the consent of the both the sides, the matter is heard
finally at the stage of admission.
4] The petitioner is the original plaintiff impugning the judgment
and order passed by the learned District Judge, Amalner whereby the
learned Judge allowed the appeal preferred by the respondent under
Section 104 of the Code of Civil Procedure and quashed and set aside
the order of temporary injunction passed by the learned Civil Judge
on petitioner's Application (Exh.5).
5] The sum and substance of the averments of the petitioner and
the contentions of the respondent are to the effect that the former is
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the owner of the property bearing Gram Panchayat Nos.343 and 344
whereas the respondent is the owner in possession of the property
bearing Gram Panchayat No.346. Both these properties are stated to
be obliquely situated and there is no common wall. The entry to the
petitioner's suit property is from west whereas the entry to the
property of the respondent is from south. According to the petitioner,
there is a door and a stair case to his property opening towards west.
The respondent is carrying out construction which is likely to obstruct
his entry to the house as also light and air being received by him.
6] The respondent has not disputed ownership and possession of
the petitioner but has contended that he has been carrying out
construction according to the building permission granted by the
Gram Panchayat. He specifically undertook in paragraph no.14 of the
written statement not to create any construction infront of the stair
case and the door of the petitioner's property opening towards west.
7] The learned Civil Judge restrained respondent by way of
temporary injunction from carrying out any construction adjacent to
the stair case and the door of the petitioner's property situated on the
western side. By the impugned judgment and order the learned
District Judge quashed and set aside the order of temporary
injunction and rejected the Application (Exh.6).
8] The learned advocate for the petitioner vehemently submits
that when the Suit was filed no building permission was obtained by
the respondent and still he had started carrying out construction. The
petitioner was entertaining a reasonable apprehension that since the
respondent was digging the pits adjacent to the stair case and the
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door, in all probability he was to obstruct petitioner's way, thereby
causing obstruction to the light and air being received by him. He
would further submit that there is also a window on the western wall
and the proposed construction of the respondent is likely to obstruct
his right to receive light and air through that window. The learned
advocate would also submit that though it is not the case of the
petitioner that the respondent has made any encroachment over his
property, the construction being carried out is likely to obstruct his
use of the property.
9] The learned advocate Mr.Patil for the respondent submits that
admittedly, building permission was obtained by the respondent on
24/2/2021 and he has been carrying out construction over his own
property strictly in accordance with the building permission. He
would further submit that the respondent in his written statement
itself has specifically committed that he will not carry out any
construction in front of the petitioner's stair case and the door. It is in
the light of such state of affairs, there was no prima facie case or
balance of convenience in favour of the petitioner and the learned
Civil Judge had erred in granting temporary injunction. By the
impugned judgment and order the learned District Judge has
corrected the error.
10] I have carefully considered the rival submissions and the papers
including photos produced on record by both the sides. It is to be
borne in mind that relief of temporary injunction is a discretionary
relief and the party claiming it has to establish a prima facie case and
balance of convenience in his favour and has to further prove that he
would suffer some irreparable loss if the temporary injunction is not
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granted.
11] When, admittedly, the petitioner himself has carried out the
construction over his property by demolishing the old construction it
was expected of him to have produced on the record the building
permission under which he did so. He however, has not produced it
on the record.
12] Again there is absolutely no whisper about any obstruction to
the petitioner's light and air being received through any window
fitted in the western wall, in the entire written statement. It is for the
first time that the advocate is coming with such a plea in this
proceeding.
13] So far as the stair case and the door in question is concerned,
the respondent in paragraph no.14 of his written statement (Exh.15)
has specifically mentioned that he would not carry out any
construction infront of these stair case and the door.
14] Admittedly, though belatedly, the respondent no.1 has
succeeded in obtaining some building permission on 24/2/2021.
There was absolutely no material before the lower Court or even
before this Court to demonstrate that the building permission granted
to the respondent is either illegal or has tendency of creating any
obstruction to the petitioner's use of his property.
15] It is in the light of such state of affairs, neither there was any
prima facie case nor was the balance of convenience in favour of the
petitioner and still the learned Civil Judge had granted the temporary
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injunction overlooking the fact that building permission was received
by the respondent to carry out construction over his property and
there were no allegations about any encroachment or illegality in
such permission. The conclusions drawn were clearly arbitrary and
capricious.
16] The learned District Judge in his impugned judgment and order
has taken into consideration all these aspects and has rightly allowed
the Miscellaneous Appeal. There is no error or illegality.
17] The Writ Petition is dismissed in limine. The observations made
hereinabove are confined to the decision of the present Petition.
(MANGESH S. PATIL,J.)
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