Sri R.Bharath Raju K L vs Sri M Bhakthavatchalam
2022 Latest Caselaw 7971 Kant

                            -1-



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 02ND DAY OF JUNE, 2022

                          BEFORE

        THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

        MISCELLANEOUS FIRST APPEAL NO.3547/2022

BETWEEN:

SRI R.BHARATH RAJU K L
AGED ABOUT 46 YEARS
S/O SRI KLK RAJU
NEW NO 4/3 1ST CROSS
KASTURIBAINAGAR
PALACE GUTTAHALLI
BENGALURU - 560 003.                  ... APPELLANT

(BY SMT. ASHWINI PATIL, ADVOCATE FOR
    SRI. AJAY J N, ADVOCATE)

AND:

SRI M. BHAKTHAVATCHALAM
AGED ABOUT 65 YEARS
S/O LATE SRI MUNISWAMY
NEW NO 8, 1ST CROSS
KASTURIBAINAGAR
PALACE GUTTAHALLI
BENGALURU - 560 003.                  ... RESPONDENT

(BY SRI.RAMESH CHANDRA, ADVOCATE FOR R1)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/O.43 RULE 1(r) R/W SEC.104 OF THE CPC, AGAINST
THE ORDER DATED 31.08.2021 PASSED ON IA NO.1 IN
O.S.NO.4112/2021 ON THE FILE OF THE XIV ADDITIONAL
CITY CIVIL JUDGE, BENGALURU (CCH NO.28), ALLOWING
                             -2-



IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W SECTION 151
OF CPC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:


                       JUDGMENT

This appeal is by the defendant in

O.S.No.4112/2021 on the file of the XIV Additional City

Civil Judge, Bengaluru (for short 'the civil Court'). The

appellant has impugned the civil Court's order dated

31.08.2021. The civil Court by this order has allowed

the respondent-plaintiff's application (IA.1) under Order

XXXIX Rules 1 and 2 read with Section 151 of the Code

of Civil Procedure, 1908 restraining the defendant from

interfering with the plaintiff's possession of the suit

schedule property.

2. The respondent has filed this suit in

O.S.No.4112/2021 for permanent injunction essentially

contending that he is the absolute owner of the

residential property measuring east to west 45 feet and

north to south 30 feet (the subject property) and the

appellant is the owner of the property on the northern

side. He has maintained an open space measuring 3' x

24' as setback along the northern side of the subject

property. The appellant in the first week of July 2021

started demolishing the standing structure in his

property and levelled the site. The respondent could

apprehend that the appellant would encroach upon this

open space. Therefore, he has filed application for

temporary injunction restraining the appellant from

encroaching this open area pending adjudication in the

suit.

3. On the other hand, the appellant has denied

the allegations of encroachment. The appellant has

taken the specific stand that he has obtained the

sanctioned plan from the BBMP for construction in his

property and he is putting up construction in his

property in accordance with the sanctioned plan. The

appellant's case is also that BBMP has not initiated any

action for deviation from the sanctioned plan.

4. The civil Court, considering the rival cases,

has allowed the respondent's application opining that

the photographs relied upon by the parties indicate that

the appellant has dug a trench to the very edge of the

respondent's compound wall. This would demonstrate

that the appellant has no intention of maintaining any

set back/open space between the constructions in the

two properties and the suit schedule property must be

kept open lest the respondent's rights are affected. The

civil Court has also considered the balance of

convenience and irreparable injury in this context.

5. But at this stage, this Court must record

that it is undisputed that the appellant after the

impugned order has proceeded with the construction in

his property and has completed the construction except

for plastering of the external wall immediately abutting

the respondent's construction. In fact, the learned

Counsel has placed on record the affidavit detailing the

work that the appellant would undertake. This affidavit

also demonstrates that the construction in the

appellant's property is complete except for plastering as

aforesaid and to complete the plastering, the appellant

can have access only through the respondent's property.

6. The learned counsel for the appellant on

merits, submits that the respondent asserts that the

appellant intends encroaching the open space

measuring 3' x 24' in his property, but there is a

serious dispute of title over this open space and as

such, the appellant should have sought for declaration.

The appellant, without the necessary relief of

declaration, would not be entitled to any injunction. The

civil Court has overlooked this material circumstance. She

also submits that the civil Court has premised its order in

the reasoning that the appellant has commenced

construction in violation of the sanctioned plan without

claiming the set back. It is trite that in such

circumstances, a suit would not be the appropriate

remedy as the provisions of the Karnataka Municipal

Corporations Act,1976 provide adequate remedy. The

impugned order cannot be sustained even on this

ground.

7. The learned Counsel further submits that

the operative portion of the impugned order indicates

that the appellant must not interfere with the

respondent's property. However, the construction even

if it is without set back would be within the appellant's

own property. As such, the interim order is not violated

and therefore, this Court should consider granting

permission to the appellant to access the external walls

for plastering through the respondent's construction.

8. Sri Ramesh Chandra, the learned counsel for

the respondent, relying upon a set of photographs,

submits that the appellant has continued with the

construction encroaching the open space which is part

of the subject property despite the injunction order.

This demonstrates that the appellant has no regard for

law, and if a person is shown to have no regard for law,

there cannot be any indulgence. Insofar as the grounds

urged by the learned counsel for the appellant, the

learned counsel for the respondent submits that the

respondent's case is based on the apprehension that the

appellant would encroach the open space in putting up

construction in his property, and this apprehension has

turned out to be true in view of the appellant's

subsequent conduct. The appellant may have to seek

further relief but that would not in any manner affect

the merits of the order.

9. The civil Court has, in the impugned order,

referred to the disputed area as 'set back' but given the

rival submissions, this must be construed as a

reference to the open space - the disputed property.

According to the respondent, this open space is part of

the larger property measuring 30' x 45' and the

appellant is encroaching this space. When the civil

Court's reference to the set back is considered

accordingly, this Court is of the considered view that it

would be reasonable to opine that the civil Court has

proceeded on the footing that the appellant proposes to

commence construction in this open space and

therefore there cannot be an order of injunction.

10. The true import of the civil Court's finding,

as this Court would opine for the limited purpose of this

appeal, would be that the plaintiff has been able to

demonstrate prima facie existence of the open space

within the boundaries of his property and the

defendant's intent to encroach the same. This Court

must also refer to the settled law that the appellate

Court will not substitute its discretion with the

discretion exercised by the trial Court and the appellate

Court would interfere only when it is shown that the

exercise of the discretion is perverse or contrary to law.

In view of the settled law, this Court is of the view that

the impugned order does not call for any interference.

11. As regards the appellant's request for leave

to access the respondent's property to complete

plastering, this Court is of the considered view that

such request must be considered by the civil Court in

the light of the different material that the parties could

place on the progress of the construction during the suit

and after the impugned order. It would be needless to

observe that if an application is filed by the appellant in

this regard, the same would have to be considered by

the civil Court in the light of the pleadings on record

- 10 -

and the material that would be additionally placed.

Further, this Court must observe that the final

adjudication must be independent of any observation by

the civil Court in the impugned order.

The appeal stands disposed of with liberty to the

appellant as aforesaid.

Sd/-

JUDGE

nv