Allowed

Smt. Harshitha v. Sri S.Annadorai

Karnataka HC21 Jul 2022MFA/3689/2022

Case brief

AI extract

What is this about?

Two adjacent property owners contested over setback boundaries and municipal sanction. The High Court dismissed non-lying appeals against injunctions restraining construction without sanctioned plans. It permitted the appellant to complete plastering of an external wall to prevent seepage loss, subject to suit outcomes and municipal decisions, with strict safeguards against damaging the respondent

What did the court decide?

Permission granted to the appellant to complete external plastering of their western wall within eight weeks, subject to suit decisions and KMC Act provisions, ensuring no damage to the respondent's p

Smt. Harshitha Vs Sri S.Annadorai — Landlord and Tenant | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JULY, 2022 BEFORE

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

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MISCELLANEOUS FIRST APPEAL NO.6047/2021 c/w

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MISCELLANEOUS FIRST APPEAL NO.3689/2022 (CPC)

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IN MFA NO. 6047/2021

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BETWEEN:

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SRI. S. ANNADORAI S/O LATE P SADANANDAM AGED 54 YEARS R/O NO. 616. (317) 5^TH CROSS, WARD NO.56 A NARAYANAPURA DOORAVANINAGARA BENGALURU - 16.

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... APPELLANT

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(BY SRI. BALARAJ A C., ADVOCATE)

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AND:

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SMT HARSHITHA W/O SRI SANTHOSH KUMAR AGED 35 YEARS,

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MASTER KUSHI KUMAR S/O SRI S SANTHOSH KUMAR AGED 13 YEARS,

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RESPONDENT NO.2 SINCE MINOR HE IS REPRESENTED BY HIS

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MOTHER AND NATURAL GUARDIAN SMT. HARSHITHA

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BOTH ARE R/AT SITE NO.3, NO.43/A 5^TH CROSS ROAD, ANDHRA COLONY, OPP TO HANUMAAN JUNCTION PARK A NARAYANAPURA, BENGALURU - 560 016.

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... RESPONDENTS (BY SRI.V. LAKSHMAIAH, ADVOCATE FOR R1; R2 MINOR REP BY R1)

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THIS MFA IS FILED U/O.43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 05.10.2021 PASSED ON IA NO.1 IN O.S.NO.2277/2021 ON THE FILE OF THE XLII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-43), ALLOWING IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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IN MFA NO. 3689/2022

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BETWEEN

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SMT HARSHITHA W/O SRI SANTHOSH KUMAR AGED 35 YEARS, NO.3, NO.43/A,5^TH CROSS ROAD, ANDHRA COLONY, OPP TO HANUMAAN JUNCTION PARK A NARAYANAPURA, BENGALURU - 560 016.

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SMT. BHARATHI W/O KESHAVA MURTHY @KESHAVA APPELLANT NO. (2) SINCE MINOR R/O NO. BETWEEN 6^TH & 7^TH CROSS WARD NO. 56, A. NARAYANAPURA BENGALURU - 560 016.

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... APPELLANTS (BY SRI.V. LAKSHMAIAH, ADVOCATE)

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AND

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SRI. S, ANNADORAI S/O LATE P SADANANDAM AGED 54 YEARS R/O NO. 616. (317) 5^TH CROSS, WARD NO.56 A NARAYANAPURA DOORAVANINAGARA BENGALURU - 16.

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... RESPONDENT (BY SRI. BALARAJ A C., ADVOCATE)

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THIS MFA IS FILED U/O.43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 08.02.2022 PASSED IN O.S.NO. 796/2020 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY ALLOWING I.A. FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AND DISMISSING THE I.A. NO.7 FILED UNDER ORDER 39 RULE 4 OF CPC.

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THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are by the owners of two adjacent properties, and these adjacent owners have commenced their cross suits in O.S.No.796/2020 and O.S.No.2277/2021. The suit in O.S.No.796/2020 is pending on the file of the XXVII Additional City Civil Judge, Bengaluru, and the other suit in O.S..No.2277/2021 is pending on the file of the XLII Additional City Civil and Sessions Judge, Bengaluru

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(CCH-43). These suits are for permanent injunction and further, each of the owners of the adjacent property have described their own property in schedule 'A' of the plaint and the property of the other in schedule 'B' of the plaint.

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The concerned civil Courts have allowed the applications filed by these adjacent owners in their corresponding suits for temporary injunctions restraining the other from interfering with the possession of such other's property. The impugned order in O.S.No.2277/2021 is dated 5.10.2021 and this is called in question in MFA No.6047/2021. The impugned order in O.S.No.796/2020 is dated 8.2.2022 and this is called in question in MFA No.3689/2022. The parties for convenience are referred to as they are arrayed in MFA No.3689/2022.

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The appellants are the owners of the eastern property measuring 42 feet east to west and 30 feet

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north to south and the respondent is the owner of the western property measuring 84 feet east to west and 30 feet north to south. The dispute between the appellants and the respondent is because the appellants contend that open area of 3 feet east to west and 30 feet north to south between these two properties is the setback for their property and the respondent contends that this area is a setback for his property.

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The appellants have commenced

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construction and completed the construction, even according to the respondents, except for plastering of the external wall on the western side of his property, and with the civil Courts injuncting the appellants from proceeding with the construction in the respondent's suit in OS.No.796/2020, they are not able to complete this plastering.

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The respondent asserts that because the

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appellants have started construction without a sanction

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plan and without even leaving set back as required under the BBMP Bye-laws, he has informed the concerned with the BBMP and notices have been issued under the provisions of the Karnataka Municipal Corporations Act, 1976 (for short, 'KMC Act' ).

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The civil Court in O.S.No.796/2020 has restrained the appellants from putting up construction in their property on the ground that they have not produced sanctioned plan and referring to this Court's order¹ [in the dispute between third parties] where this Court has deprecated the general practice of constructing without set back and contrary to the Byelaws and the authorities' apathy.

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However, the civil Court's reasoning must be necessarily examined in the light of the settled law that if any construction is commenced either without sanction plan or contrary to the sanction plan, the

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1 W.P.No.20333/2021 disposed of on 20.12.2021

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appropriate remedy under the provisions of the KMC Act must be availed and the civil Court must not interdict unless easementary rights are violated and appropriate relief is sought for. Additionally, the civil Courts' reasoning must also be considered in the context of the crucial dispute between the appellants and the respondent. This Court must intervene with the civil Courts’ orders because of these two propositions.

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The appellants contend that the open area between the constructions in the adjacent properties is part of the appellants' property and therefore a set back, while the respondent contends otherwise asserting that such open area is set back for the respondent. The question whether this open area between the two properties is set back for the appellants' property or the respondent's property is a matter for trial.

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The learned counsel for the appellants was called upon to place on record the photographs to

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explain the status of the construction and the open space between the two buildings. He has placed three photographs. One of the photographs depicts thus:

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These photographs demonstrate that appellants' building is incomplete, and the respondent’s building is complete. The open space between these properties is narrow. The civil Court must decide on the question whether the open area in the ground floor between the two properties could be part of the appellant's property

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or the respondent's property. The concerned authority under the provisions of the KMC Act will have to take appropriate action, in accordance with the provision of such enactment, if there is any deviation in the construction put up by the appellants from the sanction plan, or if no sanction plan is obtained for undertaking construction without such sanction plan .

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But with the appellants’ external wall exposed without plastering, there could seepage and resultant loss to the appellants, a circumstance that will have to be considered in deciding the respective case for injunction. In the light of the controversy between the appellants and the respondent, and to minimize the possible injury in the interregnum, the appellants, subject to the decision in the suits and the decision under KMC Act, should be permitted to complete the plastering of external work without in any manner damaging the construction or the conduit pipes within the respondent's property.

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The appellants must complete such construction within a certain time but without claiming equities and subject to the final decision in the two suits and the decision by the competent authorities under the KMC Act. Further, the appellants must ensure that the respondent's property is not damaged, and if there is any collateral or accidental damage, the appellants must undertake every such measure, as would be necessary, for repairing and restoring the damage. Hence, the following:

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ORDER

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(a) The appeals are disposed of permitting the appellants to complete the external plastering of the western wall of their building within a period of eight [8] weeks from today without claiming any equities, and subject to the final decision in the two suits and the decision of the

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competent authorities under the provisions of the KMC Act.

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(b) The appellants must ensure that they do not in any manner damage the standing structure in the respondent's property, but if there is any accidental or collateral damage, at their own cost repair and reinstate the same. In the event there is any failure by the appellants, the respondent must be at liberty to file appropriate application for reimbursement of the costs that he may have to incur for repairs and he shall have the liberty to file such application in his suit in O.S.No.796/2022.

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JUDGE

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SA Ct:sr

Smt. Harshitha v. Sri S.Annadorai

Case brief

What is this about?

What did the court decide?

Smt. Harshitha v. Sri S.Annadorai

Case brief

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