Skip to content


Mathew Philips Vs. P.O. Koshy - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 826 of 1963
Judge
Reported inAIR1966Kant74; AIR1966Mys74
ActsCity of Bangalore Municipal Corporation Act, 1949 - Sections 264; Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 39, Rule 2
AppellantMathew Philips
RespondentP.O. Koshy
Excerpt:
.....authorities excursing quasi judicial powers, passing adverse order without evidence or basis is not sustainable and is liable to be set aside. judicial review:held, judicial review is an integral part of the constitutional system. an authority is bound to pass reasonable order. if not, interference by high court and supreme court is permissible. - 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a show cause notice to the defendants and that show cause notice to the defendants and that show cause notice was withdrawn subsequently on the appropriate authority being satisfied that there has been no contravention to the licence granted by the corporation to the defendant. the party who seeks the aid of the court for an injunction,..........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notice to defendant 2 and that after inspection of the spot by the corporation engineer, the show cause notice had been withdrawn as per.....
Judgment:
ORDER

(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 infringed 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.

(4) Before the issue of a temporary injunction the Court must satisfy itself that the plaintiff has a prima facie case. A Probability of right is sufficient to sustain an application for temporary injunction. But, if the legal right, to have been infringed, is so doubtful, the mere existence of the doubt is Subordinate Judge to refuse an application for temporary injunction. The party who seeks the aid of the Court for an injunction, must show that the act complained of is in violation of his right or is at least an act which if carried into effect, will necessarily result in a violation of the right.

Sri Jayaram. Learned counsel for the plaintiff--respondent has not shown any provision of the City of Bangalore Municipal Corporation Act, 1949, or any other law, which creates a right in a neighbouring owner to bring a suit for injunction of the nature in the instant case. The argument of Sri Jayaram was that the provision in the bye-law that a clear space of 4 feet should be left is for the benefit of the adjacent owner. He has not been able to show any provision of the Act or bye-law or any other law such a provision is for the benefit of the neighbouring owner.

The City of Bangalore Municipal Corporation Act, 1949, is a self-contained Code, which provides a remedy for any contravention of its provisions or the bye-laws made thereunder. It is for the appropriate authority constituted under the Act to determine, whether or not a licensee of a building has contravened the terms and conditions of his licence. Prima facie, I am not satisfied that any legal right of the plaintiff has been infringed or that he has any locus standi to maintain the suit. I do not wish to prejudice the final result of his suit by expressing any final opinion in the matter. The existence of a doubt as to the right of the plaintiff is sufficient to refuse the application for a temporary injunction.

The Courts below have not considered this aspect of the matter, whether the plaintiff has a prima facie case and whether any of his legal rights has been infringed, or that he has suffered any legal injury. In the exercise of the discretionary power of granting a temporary injunction, the non-consideration of the material point, viz., whether the plaintiff has made out a prima facie case of legal injury, vitiates the exercise of jurisdiction vested under Rule 2 of Order 39 of the Code of Civil Procedure and therefore, the order under revision cannot be allowed to remain uncorrected under S. 115 of the Code of Civil Procedure.

(5) For the above reasons, this civil revision petition is allowed with costs and the interim order of injunction made by the Court below is vacated.

(6) Revision allowed


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //