Karnataka High Court
Sri Syed Asad Ahmed vs Sri B D Pattabhiraman on 2 August, 2024
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MFA No. 5475 of 2022
C/W. MFA No.5460 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
M.F.A. NO. 5475 OF 2022 C/W.
M.F.A.NO.5460/2022(CPC)
IN M.F.A. NO. 5475 OF 2022:
BETWEEN:
SRI. SYED ASAD AHMED
S/O. SYED AHMED
AGED ABOUT 36 YEARS
R/AT NO.21/1, HALL ROAD
RICHARDSON TOWN
BANGALORE -560005
...APPELLANT
(BY SRI. PADMANABHA V. MAHALE, SENIOR ADVOCATE A/W.
SRI. MOHAMMAD NIWAZ S., ADVOCATE)
Digitally AND:
signed by
YAMUNA K L 1. SRI. B. D. PATTABHIRAMAN
Location: S/O. LATE T. M. D. NAIDU
High Court of
Karnataka AGED ABOUT 81 YEARS,
R/AT NO.001, GROUND FLOOR
EAST HALL APARTMENTS
NO.21, RICHARDS TOWN
BANGALORE -560005.
2. BRUHAT BENGALURU MAHANAGARA PALIKE
NO.1, N. R. SQUARE
BENGALURU -560002.
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MFA No. 5475 of 2022
C/W. MFA No.5460 of 2022
3. ASSISTANT EXECUTIVE ENGINEER
BRUHAT BENGALURU MAHANAGARA PALIKE
K. G. HALLI, SUB DIVISION
ROBERTSON ROAD, FRAZER TOWN
BENGALURU -560005.
4. BANGALORE ELECTRICITY SUPPLY COMPANY
ROBERSTON ROAD, FRAZER TOWN
NEAR SINDHI COLONY SIGNAL
BENGALURU-560005.
BY ITS ASSISTANT EXECUTIVE ENGINEER
(ELECTRICITY).
...RESPONDENTS
(BY SRI. SURESH S. LOKRE, SR. ADV. A/W. SRI. SHRAVAN S.
LOKRE, ADV. FOR R1; SRI. K.S. MALLIKARJUNA REDDY, ADV.
FOR R2 & R3; SRI. M.V.DEVARAJU, ADV. FOR R4)
MFA FILED U/O.41 RULE 1(r) R/W SECTION 151 OF CPC,
AGAINST THE ORDER DT.29.06.2022 PASSED ON IA NO.2 IN
O.S.NO.25632/2022 ON THE FILE OF THE LXXII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU,
(CCH-73), ALLOWING IA NO.2/2022 FILED U/O.39 RULES 1
AND 2 OF CPC.
IN M.F.A.NO.5460/2022:
BETWEEN:
SRI. SYED ASAD AHMED
S/O. SYED AHMED
AGED ABOUT 36 YEARS
R/AT NO.21/1, HALL ROAD
RICHARDSON TOWN
BANGALORE -560005
...APPELLANT
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MFA No. 5475 of 2022
C/W. MFA No.5460 of 2022
(BY SRI. PADMANABHA V. MAHALE, SENIOR ADVOCATE A/W.
SRI. MOHAMMAD NIWAZ S., ADVOCATE)
AND:
1. SRI. B. D. PATTABHIRAMAN
S/O. LATE T. M. D. NAIDU
AGED ABOUT 81 YEARS,
R/AT NO.001, GROUND FLOOR
EAST HALL APARTMENTS
NO.21, RICHARDS TOWN
BANGALORE -560005.
2. BRUHAT BENGALURU MAHANAGARA PALIKE
NO.1, N. R. SQUARE
BENGALURU -560002.
REP. BY ITS COMMISSIONER.
3. ASSISTANT EXECUTIVE ENGINEER
BRUHAT BENGALURU MAHANAGARA PALIKE
K. G. HALLI, SUB DIVISION
ROBERTSON ROAD, FRAZER TOWN
BENGALURU -560005.
4. BANGALORE ELECTRICITY SUPPLY COMPANY
ROBERSTON ROAD, FRAZER TOWN
NEAR SINDHI COLONY SIGNAL
BENGALURU-560005.
BY ITS ASSISTANT EXECUTIVE ENGINEER
(ELECTRICITY).
...RESPONDENTS
(BY SRI. SURESH S. LOKRE, SR. ADV. A/W. SRI. SHRAVAN S.
LOKRE, ADV. FOR R1; SRI. B.V.MURALIDHAR, ADV. FOR R2 &
R3; R4 SERVED & UNREPRESENTED)
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MFA No. 5475 of 2022
C/W. MFA No.5460 of 2022
MFA IS FILED U/O.41 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DT.29.06.2022 PASSED ON IA NO.3
IN O.S.NO.25632/2022 ON THE FILE OF THE LXXII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL,
BENGALURU, (CCH-73), ALLOWING IA NO.3/2022 FILED
U/O.39 RULES 1 AND 2 OF CPC.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Being aggrieved by the order passed in I.A.Nos.2 & 3 of
2022 in O.S.No.25632/2022 dated 29.06.2022, the
appellant/defendant No.1 is before this Court.
2. Respondent No.1 herein had filed a suit seeking
following reliefs:
WHEREFORE, the Plaintiff prays that this Hon'ble
Court may be pleased to pass a judgment and
decree of:
(a) Permanent Injunction restraining the
defendant No.1 his workmen and others from
erecting or Completing the Electrical
Installation in respect of the Suit Schedule,
D.G.Set and use the same in any manner
whatsoever.
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(b) Mandatory Injunction, Directing the
Defendant No.1 and his workmen to Remove
the Suit Schedule Electrical
Installation/D.G.Set from its present place
abutting the Western wall of the Plaintiff's
Property.
(c) Award costs of this Suit and grant such other
reliefs as this Hon'ble Court may deem fit, in
the above case, in the interest of Justice and
Equity.
Plaintiff had filed I.A.No.2/2022 seeking Temporary Injunction
restraining defendant No.1 from completing the electrical
installation, operating and generating electricity from the DG
Set, pending disposal of the suit. It is the case of the plaintiff
that the plaintiff is the absolute owner of the property bearing
No.21, Hall Road, Richards Town, Bangalore - 560 005 and he
has entered into development agreement and an apartment
was constructed. The plaintiff is staying in flat No.001 in the
said apartment. Defendant No.1, who is neighbor on the
Western Side of his apartment has violated the sanctioned plan
and license granted to him and in that regard, proceedings
were initiated, which is pending consideration before the
Karnataka Appellate Tribunal and Writ Petitions are also filed. It
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is the specific case of the plaintiff that the defendant is trying to
encroach upon the plantiff's wall and fixing a DG set and also
complete the electrical wiring and causing noise and air
pollution and the connection has not yet been connected on
account of the orders of the Court. The trial Court had granted
injunction as sought for, by observing that defendant No.1
continued to operate the said electrical installation for electrical
component or DG set or otherwise, it would seriously affect the
right of the plaintiff to enjoy his property peacefully. Hence, the
plaintiff has made out a prima facie case and the balance of the
convenience lies in favour of the plaintiff rather than defendant
No.1 and if the order is not granted, the plaintiff would be put
to irreparable loss and hardship. Accordingly, the Court had
granted injunction and has made the injunction absolute and on
an application filed by the defendant to vacate the said order
i.e., I.A.No.3/2022. Aggrieved thereby, the defendant is before
this Court.
3. When this matter had come up on 18.08.2022, stay
was granted by the co-ordinate bench of this Court on the
injunction granted by the Trial Court. Thereafter, on
13.12.2022, the co-ordinate bench had directed respondent
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No.4 - Assistant Executive Engineer, BESCOM to inspect the
suit schedule property about location of indoor electrical
transformer and file affidavit disclosing (i) whether the unit is
already in use and (ii) whether location was as per the choice of
appellant and also (iii) whether there is any other suitable place
for installation. It is the case of the plaintiff that when the
Officer inspected the premises, no notice was given to the
plaintiff and the Officer files an affidavit before this Court
stating that already the electrical connection is given to the
said unit and they want to file their objection to the said report.
4. Learned Senior counsel Sri. Padmanabha V. Mahale,
appearing for the appellant/Defendant No.1 submits that
already they have installed the unit and electricity connection is
also given and they have been operating it. It is submitted
that, now the case is coming up for evidence of defendant and
a direction may be given to the Court below, to dispose of the
matter in the interest of both the parties.
5. Learned Senior Counsel Sri. Suresh S. Lokre,
appearing for the respondent No.1/plaintiff submits that, after
the stay order was granted by this Court, they have installed
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the unit and also electricity connection is given. It is submitted
that the affidavit filed by the Assistant Executive Engineer
(Ele), BESCOM, indicates suppression and misrepresentation of
facts and they would file their objections to that. It is further
submitted that in clear violation of the injunction order and
taking advantage of an order passed by this Court, they have
proceeded further and it is nothing but floating the orders of
the Court.
6. Having heard the learned Senior Counsels on either
side, perused the material on record. The suit is filed for bare
injunction. The relief sought by the plaintiff is to restrain the
defendants from completing the electrical installation, operating
and generating electricity from the DG set in respect of the suit
schedule property in any manner, whatsoever. While
considering the said application, the Court has to necessarily
look into whether the said unit is to be installed, what is the
right of the plaintiff and whether the defendant has to be
restrained from doing it. Interim injunction is granted in the
year 2022 and till 2024, the appeal arising out of the
Interlocutory Order is pending before this Court and the suit is
now coming up for the defendant's evidence. Co-ordinate bench
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of this Court has directed Assistant Executive Engineer to file
an affidavit and now there is an objection by the plaintiff with
regard to the said affidavit before this Court.
7. In the considered opinion of this Court, it is not
necessary to go in to the Advocate Commissioner's report for
adjudicating the dispute between the parties. The parties have
led their evidence before the Trial Court. The trial Court while
considering the suit, shall not take into consideration the report
or any of the affidavit that was filed by the Assistant Executive
Engineer, BESCOM before this Court and parties have to
substantiate their respective cases by adducing the evidence.
The Interim order is passed by the Court in 2022 and the same
is continuing from thereon. Accordingly, this Court is passing
the following:
ORDER
1. The suit is of the year 2022, the trial Court shall dispose
of the suit as expeditiously as possible but not later than
four months.
2. Parties are at liberty to raise their respective pleas before
trial Court. All contentions are left open.
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3. With the above observation the appeal stands disposed
of.
4. In MFA No.5460/2022 - filed by the defendants, in the
light of the orders passed by this Court in MFA
No.5475/2022, no orders needs to be passed in MFA
No.5460/2022. Accordingly, the appeal is closed.
5. All IA's in this writ petition shall stand closed.
Sd/-
(LALITHA KANNEGANTI)
JUDGE
KA
Ct: SNN
