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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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
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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
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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
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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
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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
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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
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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.
Sd/-
JUDGE
SS,ST
