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CaseIQ

K.L Narayan Murthy And Others v. Smt. Rajini And Others

Karnataka High Court

Jan 9, 2001

Judgment

Subsequent
References

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Structured Summary of the Legal Opinion

Factual and Procedural Background

The plaintiff/respondent filed O.S. No. 203/2000 seeking an injunction against the defendants/appellants, alleging that the defendants were putting up construction on the first floor of the suit schedule property in violation of the Karnataka Municipal Corporation Act and building bye-laws. The plaintiff claimed that representations had been made to the (Municipal) Corporation about the deviation and that the defendants' construction abutted the plaintiff's property, causing obstruction of free passage of air and light.

The plaintiff also filed I.A. No. I under Order 39, Rules 1 and 2 seeking an ad interim order directing the defendants to maintain status quo regarding further construction of the first floor. The defendants opposed the application, contending (inter alia) that the property was allotted by BDA and had an existing residential house, that the ground floor occupant (Sri Vijay Mohan) had not objected, and that the plaintiff had not shown how their rights were affected; they also noted that construction was already in progress.

The Additional City Civil Judge, Bangalore heard the interlocutory application and allowed I.A. No. I by order dated 9-2-2000. The operative directions restrained the defendants from proceeding with further construction of the first floor towards the western side (towards the plaintiff's property) until further orders and directed the concerned Executive Engineer of the Corporation to inspect the building and take action if the construction was not in accordance with building bye-laws.

The defendants appealed from that I.A. order. The appellate court issued a show cause notice to the Commissioner for non-compliance; after receiving an explanation and hearing the parties, the appellate court refused to vacate the interim order initially, posted the matter for final hearing, and thereafter heard the appeal on merits, following a filing of an affidavit by the Corporation and further submissions by the parties.

Legal Issues Presented

Whether the trial court erred in granting an ad interim restraint (status quo) against the defendants' construction of the first floor in the absence of pleaded facts and material establishing a prima facie case, irreparable injury and balance of convenience.
Whether an interlocutory injunction restraining construction could be granted on the basis of photographs and presumptions without specific pleadings or identification of the particular bye-law contravened.
Whether the trial court's simultaneous directions (stopping construction and ordering inspection by the Executive Engineer) amounted to an inconsistent or unlawful exercise of discretion in the circumstances of this case.

Arguments of the Parties

Appellants / Defendants

The suit schedule property was allotted by the Bangalore Development Authority (BDA) and a residential house existed long ago.
The construction in question was already in progress when the interlocutory application was filed.
The plaintiff had not adequately pleaded how his rights were affected and had not made out material to warrant an injunction.
The ground floor occupant (Sri Vijay Mohan) had not objected to the construction.

Plaintiff / Respondent

Asserted that the defendants' first-floor construction violated the Karnataka Municipal Corporation Act and building bye-laws and that representations had been made to the Corporation about the deviation.
Alleged that the defendants’ construction abutted the plaintiff's property and would obstruct free passage of air and light.
Relied on a judgment reported as ILR 1999 Kant 506 to support the contention that injunction should be granted where construction violated municipal provisions (the respondent argued against allowing construction to proceed to avoid parties taking law into their own hands).

Corporation / 3rd Defendant (as represented in appeal)

The Corporation filed an affidavit and, through its counsel, stated before the appellate court that there was no violation on the western side of the first floor.
The Corporation issued a notice under Section 321 (date referenced: 12-5-2000), subsequent to the impugned interim order, indicating action taken after the complaint.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
ILR 1999 Kant 506	Illustrates that a court may grant an injunction where, on evidence and on merits, it is found that construction violated municipal law and a permission was quashed by the High Court.	The appellate court distinguished this precedent: ILR 1999 Kant 506 was a merits decision after evidence and is not an interim order. Because in the present case there was no factual material on record and the matter had not been decided on merits, the precedent was held inapplicable to justify the interim injunction.

Court's Reasoning and Analysis

The appellate court proceeded through a step-by-step analysis grounded on established principles for granting interim injunctions and the concrete pleadings and materials on record:

Admitted facts were recorded: the plaintiff is a neighbour occupying property adjacent to the suit schedule property and the defendants were constructing the first floor towards the western side (the side abutting the plaintiff).
The trial Judge's decision was examined: the trial Judge framed issues and, relying primarily on photographs, concluded that the construction appeared not to conform with building bye-laws, observed that a wall had been put up on the western side abutting the plaintiff's water tank, and therefore ordered status quo and directed inspection by the Executive Engineer.
The appellate court reiterated the well-settled legal test for interim injunctions: the necessity of a prima facie case, irreparable injury, and balance of convenience supported by proper pleadings and material on record.
On reading the plaint, the appellate court found no factual foundation: the plaint largely quoted statutory provisions and asserted compliance issues, the Corporation had not filed a counter (initially), and the reliefs pleaded were for declarations and for action against the defendants rather than an injunction. The plea did not include a discrete prayer for injunction.
Given the absence of positive pleadings and material, the appellate court concluded that no prima facie case was established to warrant restraint of construction. Granting an injunction on presumptions or photographs, without identification of the specific bye-law contravened or supporting pleadings, was improper.
The appellate court also noted a specific deficiency: the trial Judge asserted that a staircase was being constructed in violation of bye-laws but did not specify which bye-law was breached and there was no pleading to that effect in the plaint.
The court identified an internal inconsistency in the trial Judge's directions: ordering stoppage of construction yet simultaneously directing inspection by the Executive Engineer suggested that the matter was in doubt and that inspection, rather than immediate restraint, was the appropriate course. The appellate court expressed doubt that a stop-work direction could appropriately be issued in such circumstances.
The court observed broader consequences of an unwarranted stoppage (monetary loss and avoidable difficulties to the neighbour) and found that the trial Judge had not properly balanced convenience and irreparable injury.
The appellate court took into account the Corporation's later filings and the statement of its counsel that there was no violation on the western side; it regarded that statement and the subsequent notice under Section 321 (dated 12-5-2000) as undermining the basis for the interim restraint ordered by the trial court.
Finally, the court distinguished the case cited by the respondent (ILR 1999 Kant 506) because that was a decision on evidence and merits, whereas the present matter concerned an interlocutory application lacking substantive material on record. The court held that a remedy remained available to the plaintiff before the appropriate authority or on trial if a violation existed, but an interlocutory stoppage could not be granted on mere assumption and presumption.

Holding and Implications

Holding:

The appeal is allowed and the interim injunction/status quo order granted by the trial court is set aside.

Implications:

The operative interim order dated 9-2-2000 (I.A. No. I in O.S. No. 203/2000), which restrained the defendants from proceeding with further construction of the first floor towards the plaintiff's property, has been quashed by the appellate court.
The appellate court made plain that its observations in setting aside the interim order are not to be construed as any determination on the merits; the parties remain free to litigate the substantive issues at trial and to seek amendment of pleadings if appropriate.
The appellate court noted that remedies remain available to the plaintiff (including proceedings before the Corporation / statutory authorities) if there is inaction or a violation; the presence of subsequent action by the Corporation (notice under Section 321) reduced the urgency of an interlocutory stoppage.
No costs were awarded: the appeal was allowed without any order as to costs.
There is no pronouncement of a novel legal principle or binding new precedent in this order; it is an appellate application of settled interlocutory principles to the specific facts and pleadings of the case.

Appeal allowed.

This summary is strictly confined to the matters and statements contained in the provided opinion. No information has been added beyond the text of the opinion.

Show all summary ...

1. This appeal by the defendants-appellants is filed aggrieved by the order dt. 9-2-2000 passed on I.A.I, in O.S No. 203/2000 by the Additional City Civil Judge, Bangalore.

2. Plaintiff/respondent filed a suit in O.S No. 203/2000 seeking for an injunction against the appellant on the ground that the appellants/defendants are putting up construction over the first floor of the building in violation of Karnataka Municipal Corporation Act. Representations have been made by the plaintiff/respondent to the Corporation about the deviation committed by appellant/defendants in putting up construction in the suit schedule property. The defendants/appellants are putting up their construction abutting property of plaintiff/respondents. The deviation in construction would cause obstruction for free passage of air and light to the plaintiffs property. Under these circumstances a suit came to be filed. I.A No. I was filed under Order 39, Rules 1 and 2 by plaintiff/respondent seeking ad interim order directing the appellant to maintain status quo in respect of further construction of the first floor of the suit schedule property in the light of the facts narrated above. Appellant/defendants opposed the application contending that the suit schedule property was allotted by BDA and a residential house was put up long ago. The plaintiff/respondent is in occupation of the first floor of the property on the western side of the property. The ground floor is in occupation and enjoyment of one Sri Vijay Mohan. He has not objected for the construction. Plaintiff/respondent has not stated as to how their rights are affected in the present case. It is further contended that the construction is already in progress and when it is in half way through this IA is filed seeking for an order against the appellant. Matter was contested. Learned Judge heard the matter. After hearing he passed the order allowing IA. The operative portion of the order is as under:

“I.A No. I is allowed. Defendants 1 and 2 are directed not to proceed with the further constructions of the 1st floor of the suit schedule building towards western side, that is, towards plaintiffs property till further orders.

The concerned Executive Engineer of the 3rd defendant-authority is directed to inspect the suit schedule building and to take proper action if the construction being put up by the 1st and 2nd defendants in respect of 1st floor of the building is not in accordance with the building bye-laws of the Corporation, without being influenced by the observations made in this order.”

3. This order is challengd as I mentioned in this appeal.

4. Matter was heard at great length.

5. This Court on 16-10-2000 issued a show cause notice to the Commissioner asking him to show cause as to why the orders of the Court were not complied with. An explanation was sought for from the Commissioner. The Commissioner in response to the same filed an explanation. This Court on 25-10-2000 after considering the explanation and after hearing the parties refused to vacate the interim order already granted at the instance of the appellants/defendants. Matter was ordered to be posted for final hearing and matter was heard on merits.

6. Both the counsel elaborately argued with regard to their stand in the matter. After hearing this order is passed by me as under:

7. It is an admitted fact that the plaintiff/respondent is a neighbour and he is residing in a property adjacent to the suit schedule property. It is equally admitted fact that the defendant is putting up the construction in the first floor of the building which is situated towards western side of the suit schedule property. The trial Judge framed two points for his consideration in para 6. While considering point 1 the trial Judge only based on the photographs ruled that the construction of the first floor of the building appears to be not in accordance with building bye-laws. The trial Judge also ruled that defendant/appellants have put up one of the wall on the western side which is abutting water tank of the plaintiff. According to him the construction put up towards western side appears to be not in accordance with building bye-laws. The trial Judge relying on a judgment of this Court has ruled in para 11 that according to him the construction of the first floor of the building carried on by defendants 1 and 2 appears to be not in accordance with building bye-laws framed by 3rd respondent. It is under these circumstances he ordered status quo. In addition he also ordered the Exec. Engineer to inspect the suit schedule property and to take proper action if the construction is put up by the respondent is not in accordance with the building bye-laws.

8. It is well settled that an injunction is a serious matter and it affects the rights of the either of the parties. Any interim injunction has to be based on sound principles of law including a prima facie case, irreparable injury, balance of convenience as held by catena of decisions. There should be proper pleadings forthcoming for grant of injunction by a court of law. In the case on hand a reading of the plaint would show of no factual foundation whatsoever in the pleadings. The plaintiff/respondent has only quoted various provisions of law and referred to their compliance in the pleadings. The Corporation has not filed any counter whatsoever. Even the prayer made by the plaintiff/respondent would show that what is sought for is only a declaration to the effect that the first floor construction in progress is not in accordance with the relevant provisions of the Corporation bye-laws. The second prayer is with respect to the inaction on the part of the Corporation in not exercising its power and a judgment is sought against 3rd defendant to initiate action against the appellants/defendants. In the light of the facts and the prayer I am at a loss to understand as to how the plaintiff can obtain a status quo of no further construction in the absence of any material foundations in the plaint/prayer before the Court. In fact there is no prayer for injunction also in the plaint. All that plaintiff wanted is for a declaration against the defendants and that declaration is also for an action being taken against the appellant.

9. In these circumstances and in the light of the plaint averments no case much less a prima facie case is made out warranting any restraint order not to proceed with the construction as has been done in the case on hand. The trial Judge in my opinion has committed a patent error in failing to notice this aspect of the matter in granting a interim order. It is well settled that the appellate Court can interfere with an order of the trial Court if the same is not based on legal principles and if it is capricious and arbitrary. In the case on hand in the light of plaint averments present order is, nothing but an arbitrary order and require my interference.

10. The learned Judge holds in para 8 that the stair case which is being put up towards western side is not in accordance with the building bye-laws of the Corporation. Which is that bye-law which comes in the way of construction of stair case is not forthcoming in the order. There is also no pleading to that effect in the plaint. In these circumstances the learned Judge in my opinion is not right in granting an injunction against the appellant.

11. Even otherwise the impugned order suffer from a patent illegality. The learned Judge himself thought fit that an inspection may be necessary in the matter of construction. Having come to such a conclusion the grant of stoppage of construction runs counter to a second direction by learned Judge. I am highly doubtful as to whether such a direction can be issued on the facts of this case. A restraint injunction could be granted only when a prima facie case is made out on pleadings and not in doubtful cases. There must be positive pleadings and positive material available on record warranting an injunction. It is not on the basis of some presumption and assumption that the Court can restrain a neighbour from putting up further construction and on the basis of the photos. Any stoppage of construction would result in monetary loss in addition to avoidable difficulties to the neighbour. The balance of convenience and irreparable injury has also not been properly appreciated by the Judge on the facts of this case.

12. In the case on hand at the instance of this Court an affidavit has been filed by the Corporation. The counsel for the Corporation stated before me that there is no violation on the western side of the first floor. In fact material on record and the impugned order only refer to the western side of the suit schedule property. A statutory authority represented by a counsel mentioned to me that there is no violation on the western side. In my view the order requires the interference in the light of the statement made before me.

13. The counsel for the respondent relies on a judgment reported in ILR 1999 Kant 506 (sic). That was a case decided on merits after evidence. It is not an order with regard to an interim application. Moreover a reading of the facts of that case would show that the Court on evidence found that the defendant has put up construction in violation of the provisions of the Karnataka Municipalities Act. It is also found that the permission granted by the Corporation was quashed by the High Court. In that case High Court also granted an injunction against the defendant from proceeding with the construction pursuant to above permission. It is in those circumstances the Court ruled that an injunction has to be granted. In the present case as I mentioned earlier there is no factual material available on record. Secondly matter is yet to be decided on merits. Therefore the said judgment cannot be made applicable to the present case. Counsel however vehemently argued that if such constructions are allowed to come up it will be a sad day that parties would take law into their hands by putting up construction. This apprehension has no basis. In the case on hand as I mentioned earlier the Corporation has taken certain actions in the light of the complaint filed by the petitioner as I see from the notice issued under Sec. 321 dt. 12-5-2000. This notice is subsequent to the impugned order. Therefore the apprehension of the plaintiff cannot be accepted in the light of the subsequent action taken by the Corporation. Even otherwise if there is any inaction on the part of the Corporation or if there is any violation, then a remedy is certainly available to the plaintiff in the appropriate proceedings. On a mere assumption and presumption construction cannot be stopped. In these circumstances taking into consideration an overall view of the matter the interim injunction granted by the trial Court is set aside. I make it clear any of my observation made by me in the course of this order shall not be construed to be any order or finding on merits and I further make it clear that it is open to the parties to seek amendment of pleadings if they so desire before the trial Court.

14. With these observations this appeal is allowed but without any order as to costs.