Karnataka High Court
Smt. Vijayalaxmi W/O Basavaraj ... vs Girimallagouda S/O Basangouda Goudar on 13 November, 2024
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NC: 2024:KHC-D:16567
RSA No. 100130 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100130 OF 2018 (INJ)
BETWEEN:
SMT. VIJAYALAXMI W/O. BASAVARAJ HOONALLI,
AGE: 41 YEARS, OCC. H/W,
R/O. BASARIGIDA PETH (HOSPETH),
AT POST. KERUR,
DIST. BAGALKOT-587 206.
... APPELLANT
Digitally (BY SRI. GOURISHANKAR S MOT, ADVOCATE)
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.20
AND:
12:14:23
+0530
GIRIMALLAGOUDA S/O. BASANGOUDA GOUDAR,
AGE: 52 YEARS, OCC. POWER LOOMS,
R/O. BASARIGIDA PETH (HOSPETH),
AT POST. KERUR, DIST. BAGALKOTE-587 206.
... RESPONDENT
(BY SRI. R. K. KULKARNI, ADVOCATE)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DATED 04.09.2017 PASSED IN
R.A.NO.27/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, BADAMI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
05.10.2016, PASSED IN O.S. NO.235/2012 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE, BADAMI, DISMISSING THE SUIT FILED FOR
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-D:16567
RSA No. 100130 of 2018
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
1. The plaintiff is before this Court in this regular
second appeal assailing the concurrent findings of facts
recorded by the Courts below, wherein, the suit seeking
for permanent injunction came to be rejected.
2. Parties herein are referred to as per the rank
before the trial Court for sake of convenience.
3. The case of the plaintiff is that the house of the
plaintiff and the defendant are situated in residential area
where many families are residing, the defendant without
obtaining permission and license and though there is
prohibition to carry business of power looms in the
residential area, the defendant is running power loom in
his house, causing nuisance. On the complaint to the
concerned authorities, Chief Officer of TMC Kerur issued a
notice to the defendant to follow certain conditions and the
timing was issued to the power looms to be run between
certain periods. Though there was a warning given by the
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concerned authorities to the defendant, the terms and
conditions issued by the authorities are violated by the
defendant, hence, the plaintiff's suit in the present nature.
4. The defendant appeared and filed his written
statement inter alia contending that there are more than
500 other power looms running surrounding the premises
of the suit properties. The plaintiff being a Member of
Pattan Panchayat Kerur started ascertaining her power
over the neighbors and this is one of the instances of the
plaintiff filing the present suit restraining the defendant
from running the power loom which he has been running
after having obtained the requisite license from the
authorities and there is no violation of the terms and
conditions as stated by the plaintiff.
5. The trial Court based on the pleadings, framed
the following issues:
1. Whether plaintiff proves that, the defendant
illegally started power loom in his domestic
house without no objections from the plaintiff
and locality persons?
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2. Whether plaintiff proves that defendant has
violated all the terms and conditions imposed
by the chief office Pattan Panchayat Kerur to
start power looms?
3. Whether plaintiff proves that defendant has
caused nuisance to him by the power loom?
4. Whether plaintiff is entitle for the relief of
permanent injunction as prayed for?
5. What order or decree?
6. In order to substantiate their claim, the plaintiff
examined himself as PW1 and marked documents at
Exs.P1 to P15. On the other hand, the defendant examined
himself as DW1 and also examined one witness as DW2
and marked the documents at Exs.D1 to D8.
7. The trial Court based on the pleadings, oral and
documentary evidence dismissed the suit of the plaintiff by
observing that the plaintiff has failed to establish the
nuisance said to be caused by the defendant.
8. The plaintiff preferred appeal before the First
Appellate Court. The First Appellate Court, while re-
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appreciating and re-considering the entire oral and
documentary evidence independently, confirmed the
judgment and decree of the trial Court. Feeling aggrieved,
the plaintiff is before this Court in this Regular Second
Appeal.
9. Heard the learned counsel appearing for the
appellant; the learned counsel appearing for the
respondent and perused the materials available on record.
10. Suit of the plaintiff is for permanent injunction
to restrain the defendant from running the power looms,
which according to the plaintiff causes nuisance. Perusal of
the material on record indicates that the authority has
granted permission to the defendant to run the power
loom in the premises of the defendant, as per the terms
and conditions stipulated in the permission. There is
cogent or corroborative evidence produced by the plaintiff
to substantiate the violation of the terms and condition of
grant of permission. In the absence of the plaintiff
establishing any violation and the nuisance caused by the
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defendant, the courts below were justified in dismissing
the suit. The manner in which the Courts below have
assessed the entire oral and documentary evidence, this
Court is of the considered view that the same does not
warrant any interference under Section 100 CPC and this
Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
AT,VNP / CT:PA
