MATHEW PHILIPS Vs. P O KOSHY

JUDGEMENT

(1.) This is a civil revision petition preferred by defendant 2 in a suit brought by the plaintiff for a permanent injunction restraint the defendants from making any construction on the northern portion shown as 'X' and 'Y' in the plan annexed to the plaint, without leaving 4 feet clear space between the edge of the plaintiff's premises and the northern extremity of the buildings under construction.

(2.) The plaintiff and the defendants are owners of adjacent sites in the City of Bangalore. Pursuant to a building licence issued by the Corporation of Bangalore on 28-2-1962, defendant 2, who had purchased the site from defendant 1, started construction of the building marked 'X' and 'Y' in the plaint plan. The plaintiff made representation to the Corporation of the City of Bangalore, alleging that the defendants have violated the terms and conditions of the licence granted by the Corporation of that they have not left the clear space of 4 feet between the edge of the plaintiff's premises as required by the Bye-laws of the Corporation. On the basis of the said representation, the Corporation appears to have issued to Show cause notice to the defendants and defendant 2 made representations that he had not violated any term of condition of the licence issued. After inspection by the Corporation Engineer, the show can notice was withdrawn as per endorsement of the Corporation Engineer dated 27-9-62. On 1-10-1962 when the construction of the buildings by defendant 2 had progressed for several months, plaintiff filed O. S. No. 61/62 in the Court of the Subordinate Judge, Civil Station, Bangalore for a permanent injunction. On the same date, the plaintiff filed I.A. No. I for a temporary injunction restraining the defendants, their servants and agents from proceeding 4 feet clear space between the edge of the plaintiff's premises and the northern extremity of the said construction. The Subordinate Judge, on the same date, made an interim order of injunction as prayed for. On 15-10-1962, defendant 2 filed I.A. No. II to vacate the interim order of injunction, and in the affidavit filed in support of that application, the facts above mentioned, viz., that on the complaint of the plaintiff, the Corporation had issued a Show Cause Notice to defendant 2 and that after inspection of the spot by the Corporation Engineer, the show cause notice had been withdrawn as per endorsement dated 24-9-62 and further that the construction has been going on for several months and that plaintiff had stood by and filed a suit just before the Court closed for Dasara vacation, were affirmed on oath. It was also stated in that affidavit that no legal rights of the plaintiff had been infrigned by any of the defendants. In the counter--affidavit filed by the plaintiff to I.A. No. II, the fact that the Corporation had withdrawn the Show-Cause notice was not disputed. After hearing the parties, the Subordinate Judge made the interim order of injunction absolute on 19-11-1962. Against that order, the defendants preferred Miscellaneous Appeal No. 3/62 in the Court of the District Judge, Civil Station, Bangalore, and that appeal was dismissed. It is against that decision, the above Civil Revision Petition has been preferred by the 2nd defendant.

(3.) The order under revision granting a temporary injunction was made on an application filed by the plaintiff under Rule 2 of Order 39 of the Code of Civil Procedure. In order to entitle a party to obtain an order of temporary injunction, the applicant has to make out a prima facie case that the defendant was committing a breach of contract or other injury of any kind. It is not the case of the plaintiff that the defendant was committing any breach of contract; it is also not the case of the plaintiff that the defendant had encroached on the plaintiff's lands or infringed any of his legal rights to the property. The case of the plaintiff, as stated in his affidavit in support of I.A. No. 1, was that the defendants were building on their own site and while so building, they have not conformed to a particular Bye-law of the Corporation. Under the bye-laws of the Corporation of the City of Bangalore, framed under the City of Bangalore Municipal Corporation Act, 1949, a licence has to be obtained for construction of any building within the Corporation area and a plan of the building has to be constructed n accordance with the approved plan. If the licencee does not conform to the terms and conditions of the licence, the remedy is provided by S. 264 of the City of Bangalore Municipal Corporation Act, 1949, which section vests the power in Commissioner to take action in the manner provided therein. The plaintiff, as stated already, made a complaint to the Corporation and the Corporation issued a show cause notice to the defendants and that show cause notice to the defendants and that show cause notice was withdrawn subsequently on the appropriate authority being satisfied that there has been no contravention to the licence granted by the Corporation to the defendant.