M.U. Maheshwarappa vs V.G. Lingaraju

B. Manohar, J.—Petitioner is the plaintiff in O.S. No. 39/2012 being aggrieved by the order dated 28.09.2012 made in M.A. No. 08/2010 passed by the Senior Civil Judge, Holalkere, confirming the order dated 09.04.2012 made in O.S. No. 39/2012 by the Civil Judge and JMFC, Holalkere filed this writ petition.

The case of the petitioner is that the first respondent putting up a construction without leaving any setback and blocking his light and air towards northern side contrary to the sanctioned plan. He filed O.S. No. 39/2012 seeking for order of perpetual/temporary injunction against first defendant restraining him from putting up any construction on the northern side of the suit schedule property without leaving any setback and also damages of Rs. 20,000/-. He filed IA No. 1 under Order 39 Rules 1 and 2 of CPC seeking temporary injunction restraining the defendant from constructing the building towards northern side of the suit schedule property without leaving any space or setback. The defendant filed the objections to the said application contending that he is putting up construction in accordance with the sanctioned plan. In view of the collapse of the house due to heavy rain he has applied for permission from the second defendant for construction of the building. The second respondent after visiting the spot and verifying the previous constructions, wherein in the northern side the wall of the plaintiffs house is attached to the southern side of the wall of the defendants house after conducting mahazar plan has been sanctioned and in accordance with the sanctioned plan building has been constructed and sought for dismissal of the said application. The trial court after considering the matter in detail found that defendant is constructing the building in the collapsed areas and he is only constructing the half portion of the house collapsed as per the permission dated 08.02.2012. The construction has been made in accordance with the permission granted by the Corporation and the balance of inconvenience is in favour of the defendant and dismissed the application filed under Order 39 and Rules 1 and 2 of CPC. Being aggrieved by the order dated 09.04.2012 M.A. No. 8/2012 has been field on the file of Senior civil Judge, Holalkere. The Lower appellate court after considering the matter in detail found that the plaintiff has failed to make out prima facie case balance of convenience. Hence rejected the appeal filed by the petitioner. Being aggrieved by these two orders, the petitioner preferred this writ petition.

The learned advocate appearing for the petitioner contended that the order passed by the trial court rejecting the application under Order 39 Rule 1 and 2 is contrary to law without leaving the setback no building can be constructed the plan sanctioned by the second respondent is contrary to law if the first respondent completed construction, the petitioner will be put to irreparable injury which will block the air and light. This aspect has not been considered by the courts below and sought for allowing the writ petition by setting aside the order passed by the trial court.

The learned advocate appearing for the contesting respondent argued in support of the order passed by the courts below and submitted that both the courts concurrently held that the plaintiff is not entitled for the temporary injunction. The building has been constructed in accordance with the sanctioned plan and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed the learned counsel for the parties and perused the records. Though the writ petition has been filed on 17.10.2012, this court has not granted any interim order. The application filed under Order 39 Rule 1 and 2 has been rejected by the trial court on 09.04.2012. The same order is confirmed by the lower appellate court. There is no interim order for the last two years. The finding recorded by the court below is purely a question of fact and the same is not liable to be interfered with by this court.

The subject matter in this writ petition is with regard to the construction of a residential house which was collapsed due to the heavy rain. The only direction can be issued in this writ petition to the trial court is to dispose of the matter as expeditiously as possible. It is open to the petitioner to produce necessary materials before the court to establish his case. The petitioner has not made out any case to interfere with the order passed by the trial court. Accordingly I pass the following order:-

Petition is dismissed, reserving liberty to the petitioner to move the trial court for expeditious disposal of the suit.

The trial court shall dispose of the matter as expeditiously possible uninfluenced by any of the observations made by the lower appellate court as well as this court in the present writ petition.