- 1 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 24444 OF 2025 (GM-CPC) BETWEEN: 1. SRI C. ARUN S/O CHANNAKRISHNAIAH T.C., AGED ABOUT 52 YEARS, CURRENTLY RESIDING AT: 7568, BRYCE CANYON, DR FRISCO, TEXAS, TX 75035 REPRESENTED BY HIS POA HOLDER SRI CHANNAKRISHNAIAH T.C., ADDRESS IN THE PLAINT IS INCORRECTLY MENTIONED AS NO.166, 5TH 'C' MAIN ROAD, 7TH CROSS, HAMPINAGAR, VIJAYNAGAR, II STAGE, BENGALURU – 560 040. 2. SRI CHANNAKRISHNAIAH T.C., S/O CHANNAPPA AGED ABOUT 79 YEARS NO.166, 5TH 'C' MAIN ROAD, 7TH CROSS, HAMPINAGAR, VIJAYNAGAR, II STAGE, BENGALURU – 560 040. …PETITIONERS (BY SRI S.SREEVATSA, SR.COUNSEL FOR Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 SRI T.N.VISWANATHA, ADVOCATE) AND: 1. SRI S. PRABHAKAR S/O D.SREERAMULU AGED ABOUT 61 YEARS. 2. SMT.D.CHANDRAKALA W/O S.PRABHAKAR AGED ABOUT 54 YEARS BOTH RESIDING AT: NO.298, 1ST 'A' MAIN ROAD, 6TH CROSS, VHBCS, II STAGE, 9TH BLOCK, NAGARABHAVI, BENGALURU – 560 072. …RESPONDENTS (BY SRI C.M.NAGABUSHAN, ADVOCATE FOR C/RESPONDENT) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE /QUASH THE ORDER DATED 05.08.2025 A PASSED BY THE LEARNED TRIAL JUDGE IN O.S.NO. 5599/2025 ON THE FILE OF THE XV ADDL CITY CIVIL JUDGE AT BENGALURU (CH-3) AT ANX-A, C. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER Petitioners – defendant Nos.1 and 2 are at the doors of this Court calling in question an order dated 05.08.2025 passed by the XV Additional City Civil Judge, Bengaluru, whereby, an application filed by the plaintiffs under Section XXXIX Rule 3(a) of CPC, seeking temporary injunction, in O.S.No.5599/2025, is allowed. 2. Heard Sri S.Sreevatsa, learned senior counsel for Sri T.N.Viswanatha, learned counsel for petitioners and Sri C.M.Nagabushan, learned counsel for respondents. 3. The impugned order dated 05.08.2025, passed by the concerned Court granting temporary injunction reads as follows: “Issue accused-interim ex-parte injunction against the defendants as sought by he plaintiffs in I.A.No.1 till next date of hearing. The plaintiffs shall comply the provisions of Order 39 Rule 3(a) of CPC. Issue suit summons and notice on I.A.1 to the defendants returnable by 18.08.2025.” It is this order that has driven the defendants to this Court in the subject petition. - 4 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 4. Learned senior counsel appearing for the petitioners – defendants, would vehemently contend that the suit itself was not entertainable before the concerned Court as the issue would clearly fall within the jurisdiction of the Zonal Commissioner under Section 248 of the Bruhat Bengaluru Mahanagara Palike Act, 2020 (for short ‘the BBMP Act’). It is not that the respondents - plaintiffs have not exhausted that remedy. The plaintiffs have registered complaints before the Bruhat Bengaluru Mahanagara Palike (for short ‘the BBMP’) and the BBMP has inspected the property of the respondents - plaintiffs and notwithstanding the same, the suit is filed seeking mandatory injunction. Learned senior counsel would seek to place reliance upon two judgments rendered by the learned single Judges of this Court to buttress his submission. They are in the cases of DR. K. PANDURANGA NAYAK VS. JAYASHREE reported in ILR 1989 KAR 3104 and S. SUNDAR RAJ VS. VIJAYENDRA KUMAR AND OTHERS reported in 2001 SC OnLine Kar 39. He would further submit that it is only the Municipal Authorities or now, the BBMP have to act upon the said complaint and should not approach the civil Court seeking mandatory injunction. - 5 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 5. Sri C.M. Nagabushan, learned counsel for caveators - respondents would contend that a reasoned order is passed, while granting temporary injunction by the concerned Court and the petitioners have to exhaust the remedy under Order XXXIX Rule 4 of the CPC by filing an application seeking vacation of the interim order and not approach this Court directly by filing a writ petition under Article 227 of the Constitution of India. He would submit that this Court cannot entertain the petition straight away as the proceedings is not barred under the Code of Civil Procedure. He would seek dismissal of the petition. 6. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and have perused the material on record. 7. The afore-narrated facts are not in dispute. The petitioners – defendants and the respondents – plaintiffs are neighbours. The respondents - plaintiffs register complaints dated 24.07.2025 and 26.07.2025, before the BBMP alleging that the petitioners are undertaking unauthorised construction without a sanctioned plan. The BBMP issues a notice to the - 6 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 petitioners and inspects the property on 28.07.2025. The report of the inspection is yet to come out. 8. In the interregnum, notwithstanding the complaints made by the plaintiffs and the inspection so conducted by the BBMP Authorities, the plaintiffs institute the suit on 02.08.2025 seeking the following prayer: “WHEREFORE, the plaintiff prays that this Hon'ble Court may be pleased to pass a judgment and decree in favor of the plaintiffs as against the defendants for the following relief: (a) BY WAY of permanent injunction restraining the defendants, their servants, agents, henchmen or supporters or any other person or persons claiming through or under them individually or collectively from putting up illegal construction over the Schedule 'B' Property and directing the Defendants to undertake construction on the Schedule 'B' Property strictly in accordance with the sanctioned plan and building license; (b) BY WAY of mandatory injunction to direct the Defendants to demolish the illegal construction in the B-schedule at the cost of the Defendants and to leave setback in between the Schedule 'A' and 'B' properties for free flow of air and light in terms of the sanctioned plan and building license issued by the BBMP and on their failure to do so, direct the concerned authorities to demolish the illegal construction put up by the defendants on the Schedule 'B' property; and (c) TO GRANT such other or other relief's that this Hon'ble Court may deem fit and proper in the facts and circumstances of this case, including the cost - 7 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 of the proceedings, in the interest of justice and equity.” The prayer of the respondents – plaintiffs squarely falls within the power of the BBMP to stop construction or demolish the already constructed structure as obtaining under Section 248 of the BBMP Act. Section 248 of the BBMP Act reads as follows: “248. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.—(1) If the Zonal Commissioner is satisfied,— (i) that the construction or re-construction of any building or hut or well,— (a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee; or (b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or (c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or (ii) that any alteration required by any notice issued under Section 308, have not been duly made; or (iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of Section 247, he may make a provisional order requiring the owner of the building to demolish the work done, or - 8 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 so much of it as, in the opinion of the Zonal Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Zonal Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut. (2) The Zonal Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed. (3) If the owner or builder fails to show cause to the satisfaction of the Zonal Commissioner, the Zonal Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner. (4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of Section 240 and the Zonal Commissioner is of the opinion that immediate action should be taken, then, notwithstanding anything contained in this Act, a notice to be given under sub-section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein. 73[(5) It shall be lawful for the Zonal Commissioner, at any time, before or after making an order of demolition or of the stoppage of the construction or erection of any building or execution of any work, to make an order directing the sealing of such construction or erection or work or of the premises in which such erection or work is being carried on or has been completed, for the purpose of carrying out the provisions - 9 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 of this Act, for preventing from using such construction or erection.] 74[(6) Where any erection or work or any premises in which any erection or work is being carried on, has or have been sealed, the Zonal Commissioner may, for the purpose of demolishing such erection or work in accordance with the provision of this Act, order directing the sealing of such construction or erection of any work to be removed; (i) No person shall remove such seal except under an order made by the Zonal Commissioner; and (ii) Notwithstanding anything contained in this Chapter, no appeal shall lie against such an order of sealing.]” In the light of Section 248 of the BBMP Act, it is only the Zonal Commissioner, to act upon the complaint and pass necessary orders and take necessary action i.e., either demolishing or stopping construction, as the case would be, leaving open to the owner of the property to avail all remedies available in law. 9. 9. The jurisdiction of the Civil Court is undoubtedly unavailable to the respondents - plaintiffs to knock at its door, unless the plea of easementary rights being taken in the plaint. That is not the plea that is taken, nor the prayer that is sought by the plaintiffs. Prayer in the plaint quoted hereinabove squarely falls within the jurisdiction of the Zonal Commissioner, - 10 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 a Zonal Commissioner in terms of Section 248 of the BBMP Act, which remedy the plaintiffs have already availed by registering complaints. The law in this regard is no longer res integra, as the two learned single Judges of this Court in the aforesaid cases have held as follows: In the case of DR. K. PANDURANGA NAYAK VS. JAYASHREE reported in ILR 1989 KAR 3104: “9. An earlier decision of this Court in the case of Mathew Phillips v. P.O. Koshy [AIR 1966 Mysore 74.] considered more precisely the point involved in this suit. His Lordship G.K. Govinda Bhat J. (as he then was) referring to the Byelaw framed by the Municipality requiring a clear space of 4 feet between two adjoining premises held that it does not create a right in a neighbouring owner to institute a suit for injunction. It is for the appropriate Authority under the Municipal Act to determine, whether the terms and conditions of the licence have been contravened by the licensee of the building. With this observation the temporary injunction sought for was refused in that case. At para-3 of the Report it was pointed out that under the Byelaws of the Corporation of the City of Bangalore, framed under the City of Bangalore Municipal Corporation Act, 1949, a licence had to be obtained for construction of any building within the Corporation area and a plan of the building had also to be approved and the building had to be constructed in accordance with the approved plan. If the licensee does not conform to the terms and conditions of the licence, the remedy was provided by Section 264 of the Act of 1949, which vested the powers. In the Commissioner to take action in the manner provided therein. As in the present case in that case as well the plaintiff had made a complaint to the Corporation and the Corporation issued a show cause notice to the defendants and that show cause - 11 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 notice was withdrawn subsequently on the appropriate authority being satisfied that there had been no contravention of the licence granted by the Corporation to the defendants. This Byelaw is analogous to the Byelaw now under consideration and also Section 321 of the Act of 1976. I am in respectful agreement with the observations of His Lordship that when there is an infringement of the Byelaw the proper course would be for the Corporation Commissioner to take action either suo motu or on a complaint made to him in this behalf. Section 321 of the Act provides for elaborate procedure to be followed by the Commissioner in such an event and under Section 444 appeal lies to the Standing Committee against any notice or action taken by the Commissioner under Section 321 of the Act. Thus the Act itself has provided for a machinery to inquire into such grievance and if the Commissioner does not decide to compound then he may take such action as he deems fit and proper. In the case of K.R. Shenoy (supra) [(1974) 2 SCC 506 : AIR 1974 SC 2177.] decided by the Supreme Court and referred to above, there was no question of deviation in the matter of construction but the cinema building was constructed in violation of the scheme prepared by the Municipal Authorities. The injunction sought for in the instant suit is that the Corporation Commissioner should be restrained from regularising these deviations. Such a relief is wholly unthinkable as rightly observed by the trial Court. Certain amount of discretion vests in the Commissioner and it is for him to take appropriate action as he deems fit. If the plaintiff does not sustain injury by such deviation then the Civil Court cannot grant injunction either prohibitory or mandatory as there is provision for approaching the Commissioner complaining of such a deviation. In my view therefore the Court below was justified in dismissing the suit and I do not find any reasons to interfere with the Judgment and Decree of the Court below. The appeal therefore fails and is dismissed with costs of the respondents. (Emphasis supplied) - 12 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 and in the case of S. SUNDAR RAJ VS. VIJAYENDRA KUMAR AND OTHERS reported in 2001 SC OnLine Kar 39: “7. This Court ruled that a temporary injunction cannot be granted in the absence of a creation of right in the neighbouring owner to institute a suit for injunction for violation of clear space of four feet between the two adjoining premises in terms of municipal licence. The said judgment was subsequently followed in Dr. K. Panduranga Nayak v. Smt. Jayashree [1989 (3) Kar. L.J. 497 : AIR 1990 Kant. 236 : ILR 1989 KAR 3104.] . The Single Judge after noticing the earlier judgment of this Court in Mathew Phillip's case, supra, ruled in paras 6 and 9 reading as under: “As far as natural right to the flow of light and air is concerned every owner or occupier of a land has a natural right to receive and enjoy so much light and air as come vertically thereto and to open doors and windows in his own wall which adjoins another's land, unless he is under a legal obligation not to do so. Every man is free, in the lawful enjoyment of his own property, to take and use so much light and air as come thereto. And his neighbour's right is the same as his own, but these rights of enjoyment are naturally qualified, for neither can prevent the other from making such lawful use of his land as he pleases. A man who is deprived of light and air by an act of his neighbours, as by the erection of a building, has still the right to so much light and air as come to him and he cannot complain of the obstruction however serious, in unless he can establish his title to an easement of light and air. When there is an infringement of the bye- law, the proper course would be for the Corporation Commissioner to take action either suo motu or on a complaint made to him in this behalf. Section 321 of the Act provides for elaborate procedure to be followed by the Commissioner in such an event and under Section 444 appeal lies to the Standing Committee against any notice or action taken by the Commissioner - 13 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 under Section 321 of the Act. Thus the Act itself has provided for a machinery to inquire into such grievance and if the Commissioner does not decide to compound then he may take action as he deems fit and proper. The injunction sought for in the instant suit is that the Corporation Commissioner should be restrained from regularising these deviations. Such a relief is wholly unthinkable. Certain amount of discretion vests in the Commissioner and it is for him to take appropriate action as he deems fit. If the plaintiff does not sustain injury by such deviation then the Civil Court cannot grant injunction either prohibitory or mandatory as there is provision for approaching the Commissioner complaining of such a deviation”. 8. In the light of these 2 rulings it is clear to me that no injunction can be granted at the instance of a neighrouring owner unless the violation/deviation of license results in injury or a right as held by this Court in these two judgments. Admittedly in the case on hand the plaintiff/owner has failed to prove prima facie an injury or violation of a right in his favour and this aspect has not been considered by the Appellate Court. Therefore in my view the Trial Judge committed a serious error. I make it clear that not in all circumstances a neighbouring owner cannot approach the Civil Court for injunction. A neighbouring owner can seek an injunction against his neighbour for violation of a building plan or a licence or loss subject to the condition that such violation resulted in violation of his right or causing an injury to him on account of such deviation/violation. (emphasis supplied) 9. The learned Counsel appearing for the respondent has relied on a judgment of this Court in Fakirappa v. Basalingappa [2000 (4) Kar. L.J. Sh. N. 29 : ILR 1999 KAR 3506.] , to contend that an injunction can be granted at the instance of the neighbour. That was a case clearly distinguishable on facts. In that case the Court found on evidence that there was factually violation - 14 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 by the party in the matter of construction. It further found that the permission granted by the Corporation was quashed by the High Court. It was in those set of facts the Court ruled that an injunction can be granted. That was not a case like the present one. Therefore, the said judgment cannot be relied upon by the defendant to seek an injunction. In the circumstances, I am of the view that no temporary injunction can be granted at the instance of the neighbour on the sole ground of violation of the sanctioned plan or the Building Bye- laws. As rightly held by this Court in Dr. K. Panduranga Nayak's case, supra, that when there is a violation of bye-law the appropriate Court can direct the Commissioner to take action or on complaint to him in this behalf. The Act itself has provided a machinery to enquire into such grievances. At the same time I clarify that in the event of any inaction on a complaint by the neighbour of violation on the part of the Municipal Commissioner the party is at liberty to seek a remedy to take action against an erring party. Merely on a complaint to the Commissioner or merely on the ground of violation of bye-laws as rightly held by this Court in Dr. K. Panduranga Nayak's case, supra, no injunction can be granted since a comprehensive machinery is available under the Municipal laws for an action against an erring party. The judgment of the Supreme Court in Rajatha Enterprises v. S.K. Sharma [ILR 1989 Kar. 1839 (SC).] , relied on by the respondents of no use since that was a case dealing with the breach of statutory duty. Similarly, on the other hand the Supreme Court has itself noticed in that judgment that if any such duty is cast on the Municipality to take action against the erring party. Similarly, decision in Onkar Nath v. Ram Nath Gupta [AIR 1985 Del. 293.] , is also not available to the respondents since that was a case where an unauthorised construction was put up without obtaining sanction from the authority. A construction without sanctioned plan and a construction in contravention of sanctioned plan stands on two different footings and therefore Onkar Nath's case, supra, is not available to the respondents. No doubt judgment of Calcutta High Court in Krishna Kali Mallik v. Babulal Shaw [AIR 1965 Cal. 148.] , provide for an injunction in the event of construction in violation of statutory rules but - 15 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 that relief has to be given as I mentioned earlier in the earlier paragraph only in the event of violation of a plan or a licence resulting in an injury or a violation of right in favour of neighbouring owner. Therefore, the Counsel for the appellant is right in his submission with regard to a right of the party in the matter of injunction in the light of these two judgments of this Court. Moreover in the case on hand, the Trial Judge in my opinion has committed a patent error in granting an injunction even on merits. It is the case of the plaintiff that the free air and light is affected on account of the said construction. The learned Judge himself in para 10 notices that no construction is put up in the sites owned by the plaintiff. There is no record to show that flow of air and light is prevented. Having come to this conclusion the Trial Court ought not to have granted an injunction. An interim order is granted to arrest an imminent danger or injury to the contesting party. Any interim order has to be an aid to the main relief but when there is no imminent danger or injury, no temporary injunction can be granted by the Court. Therefore the Court even on merits has committed a legal error which require my interference in this order.” (Emphasis supplied) 10. The submission of the learned counsel for the respondents - plaintiffs that an application under Order XXXIX Rule 4 of the CPC should be preferred by the defendants seeking vacation of the temporary injunction, is noted only to be rejected, as it is the question of jurisdiction. The concerned Court has no jurisdiction to entertain the application in the light of the law being laid down by this Court in the afore-quoted two judgments of this Court. In terms of the mandate under - 16 - HC-KAR NC: 2025:KHC:31263 WP No. 24444 of 2025 Section 248 of the BBMP Act itself, there was no question of granting temporary injunction against the petitioners. 11. In that light, the impugned order dated 05.08.2025, which suffers from want of jurisdiction is a nullity in law. Therefore, the writ petition deserves to succeed. Therefore, the following: ORDER a. The writ petition is allowed. b. The order 05.08.2025, passed by the XV Additional City Civil Judge, Bengaluru (CH – 3), stands quashed. Sd/- (M.NAGAPRASANNA) JUDGE NVJ List No.: 1 Sl No.: 39