M.U. MAHESHWARAPPA Vs. V.G. LINGARAJU

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.