C.M.BALAKRISHNAN Vs. G.NARAYAN

JUDGEMENT

(1.) Plaintiff in OS. No. 8120/2012 on the file of XXVII Additional City Civil Judge, Bangalore (CCH-9) has come up in this appeal impugning the order dated 15.12.2012 passed on IAs. 2 to 5 in the said suit. The undisputed facts leading to this appeal are that plaintiff in original suit is owner of property bearing No. 21, Grover Road, Frazer Town, Bangalore. The first defendant in the said suit is owner of property bearing No. 22 situated in the same road adjacent to the property of plaintiff in the same locality, which is more fully referred to as suit schedule property. The original suit in OS. No. 8120/2012 is filed by plaintiff who is appellant herein seeking to restrain first defendant from constructing the building on his property without leaving setbacks contrary to sanctioned plan. Also for mandatory injunction to remove unauthorized construction put up in the set back area of said building. The suit was filed on 16.11.2012 along with an application under Order 39 Rules 1 and 2. An application was also filed in the said suit seeking dispensation of mandatory notice to second defendant-BBMP as required under Section 482 of Karnataka Municipal Corporation Act. The said notice was allowed, thereafter, I.A. for temporary injunction was taken up for consideration and an order of status-quo regarding construction was granted on 16.11.2012 itself.

(2.) In the meanwhile, based on the complaint lodged by plaintiff, officers of second defendant-BBMP, issued provisional notice dated 8.11.2012 to first defendant. The first defendant immediately filed reply to said notice, thereafter filed writ petition in W.P. No. 47916/2012 seeking stay of provisional notice issued under Section 321(1) and (2) of Karnataka Municipal Corporation Act. This Court in its writ jurisdiction passed an interim order staying the operation of provisional notice dated 8.11.2012 by order dated 5.12.2012. Later first defendant received final order dated 20.11.2012 in the said proceedings, which was served on him on 6.12.2012. Hence, he filed an appeal against the said final order passed under Section 321(3) of the Karnataka Municipal Corporation Act before the Karnataka Appellate Tribunal in Appeal No. 1373/2012, on 28.12.2012. Subsequently, on 4.1.2013 an interim order was granted by the Appellate Tribunal in the said appeal. Subsequently, on 5.12.2012 the writ petition which was filed by first defendant in WP. No. 47916/2012 came to be disposed of reserving liberty to petitioner therein to pursue his relief in the appeal which he had already filed and pending before the Appellate Tribunal.

(3.) Simultaneously, first defendant filed an application in original suit in IA. 3 seeking vacation of the interim order of status quo regarding construction passed on 16.11.2012. In the meanwhile, two more applications also came up for consideration, i.e., one filed under Order 6 Rule 7, CPC seeking amendment of plaint in IA-4 and another application under Order 26 Rule 9 CPC to appoint Commissioner for local inspection in IA-5. The court below took aforesaid three applications along with IA. 2 filed under Order 39 Rules 1 and 2 CPC by plaintiff seeking grant of temporary injunction against first defendant questioning unauthorized construction in his property. Thereafter, disposed of all the four applications by its common order dated 15.12.2012, wherein IA. 2 filed by plaintiff under Order 39 Rules 1 and 2 was dismissed, IA. 3 filed by first defendant under Order 39 Rule 4 r/w 151 CPC was allowed and status-quo order granted earlier was vacated, IA. 4 filed by plaintiff seeking amendment to plaint was allowed and IA. 5 filed by plaintiff seeking appointment of Court Commissioner was kept in abeyance. Plaintiff being aggrieved by the aforesaid common order so far as it pertains to IAs. 2 and 3 has come up in this appeal impugning the same on the ground that it is irregular and illegal.