IN THE men COURT 0:? KARNATAKA AT BAi§i_EExALD§§ " '
DATED THIS THE 20TH DAYEJF 'MAR£}'H
BEFORE A
THE HON'BLE MR.Ji;$g'i*;;:E1§'; Az§'AN};2A':~-- ""
wars' PE'I'I'}'IOl\§ 'No.39?-1:'.§2OO7A(Gh.d'-CEPC) ii
BETWEEN :
Mr. Noel Peres
S/0. Jol:111Percs
Aged 54-years,F.*B=.N'_<'.:».21=-_9§ " -
Yjubai, U.A.E.',_V .. " _ 1;; ,
Rep. by his C+cncra1'PG#ver"¢i7Att0mc}i
Mr.Melwyn Pexrasg S19. John"I'e're_§
Aged 52 yaam, A1£;?cx~os~.-a--.
MaI1galo;;'e~»2. _ Petitioner
(By srsgmfhg A.Kcs!;£§\«;§:i E§j$a§: "fir."l{.SIilaishna, Advocates)
smn
11!] 0. '-Latci..A§?ad'mAappa Poojary
Majt:-I, F1uQr,"3'Suva,sini'
Mang a_inré+$'ZS T Respondent
(By S~g:iVSarat Bijai, Advocate)
‘rh§a peiizion is filed under Articles 226 85 227 of the
“.C6z1st§£u£ior; of India, praying to set aside the impugned ordar
A giated’ L1″Z.O2.2007, passed on LA No.10 in O.S.No.7i29/I997, on the
fifc-, ‘sf fihc Prl. Civil Judge {Jr.Dn.), Mangalorc, I).K., vidc
g ._}§nn–exure~A and aonsequentiy ailow 1A No.10 filed before the
‘C0313; below 83 etc.
This petition earning on for preliminary hearing ’13’ gnup
A ‘ this day, the Court made the foilowing:
” dcfci1d.a§nt was putting up construction in violation of
bye-laws and cncmaching part of suit schcduic
..€..?…lS_9l’-‘r_…..;….I.*..» _ > . . L.
The trial Court has mjcctcd ap%;:1i¢at;oi:%mcd f
Order 5 Rule 17 cpc by p1aim;m’/peufiaxm. an M V’
filed for permanent injunction thefi
putting up construction” ix; th;c:V”é.ti;iV§ — in
. – ‘V’C’.U-03*’? K’
violation of building bycdawsv’ and} ‘c1;t:§oachi13g upon
piainfiffs pmpc_1_1y.««_Rcga:f:di1;g _:i;”ioI,ai’i€if;a. uqf building bye-laws,
the parties No.21 118] 1998. In
the said this C¢§i1I;thas viicld:~
I _ “by the petitioner that the
co1xs*£:gju”ctjoi1~..of in question by -the
rcspontihnts-3’ ‘go 5 i锑in vialation of the Building
_ _ Rcgtflations” “an;i___Athc conditions of the licence
‘it; is open to him to seek appropriate
already
A As of plaint, suit was instituted when
I
3. The defendant filed written statcmmtigx tile” _
1998, contending that she started :c6ii.$trI1fictioz;’ tigevv
1994 and it was compkctcd in
defendant cannot be directed
4, The trial Court V _cx.a1n§t1tation-in-
chief of plainfiflis filed in gge At this stage,
plaintifi’ had madegén a:§JpI;icz§1tidi2::ittidcr..:{)1dcr 5 Rule 17
CFC, to amctétt V
%%%% t§ie;'”;51§inu:fi’ and that of
h1éa,_ b:.Uthcéf,r are abutting the
of the VcEfifc;n”ci–sz_:I”It.’o;a the northern side of
thgir 13’fi’7i”.}Vr1’§c:§’–aA1idVA’i)”c>th the pmpcrfics have a
,..cirpm:non with the dcfitndant. In the
t i * . gfimamh 1995, the defendant had startcd
V ~i.”:p_ building without leaving any set
“bac1§’a§ii:;1VAét1cmachjng mm the pmpmy of the
“‘pia12;itit’.f. and his brother. The brether of the
plaigfifi had and a suit, numbered o.s.s~4»o/95
‘ on the file: of the 1 Addifional Civii Judge
“(‘Jr.E)n.), Mangalam, praying that the Court
‘direct the defendant to remove the
N .,-~V\l1_,~–C£’\___/_’
cncmachment and put the
possession ofthe Schedule B H ” ” ‘
2. Add the following 2:
6*” line aflrtr the words ‘gifziaxg a g¢5-~hjrr’;’V
‘the defendant is £316
consizuction and it is thqaig’i1fL_:a33vj5IppfiatéVVib
this suit to protect me ;:_~.ak plaintifi’
hcnzin also’. V _ ‘
3.4_VI§1.’:V1 words ‘on ..
.. 1997′ the month of
:45. VIII as 1(a).
“I{_a}. V For” fiiandatoxy injunction to
zjexzzojcrc U of the defendants building
isncnc1t$éi’ching into the piaint A schcduic
pmp¢rty’%%%.§u%_tae land and acrially. This mlief is
._ and as per swcticvn 26(c) of
‘ _r«:cF¢j’& sv Act, 1953. Court fee of 125.251» is
A pmpertsn
paid’ herewith.
5. fused: the foilerwing at the end Schedule
‘Boundaries:
V’ that amefidiiiéiit has been noccssitatcd in oldar to
piaint and to seek mandatoxy injunction
lfiuilding in violation of building bycdaws.
V v:3_,d-aicision qfsupreme Court, reported in (2004) 6 SCC 415 {in
me of Panloaja and another vs. Yellappa (dead) by L123.
Noxth: Remaining portion ofSurvcy . ‘
No. 104,148 and defendant?’ ‘ ~ .: . ‘
South: Sunrcy line ‘368’ _T A ‘T
East : Property ofV»i’»*It§k=stin i5é?Ics
portion of N_o.(104–«5D “anti
104-gag _
West : ‘4ii(IV:’..v:J’:A5,’3:4′;’.’}A,
104/ SA am; 1ic’>4_.{(51–3.’,” ; ._
5. I have, pctitioncr and
learned
6.a_ ‘Fhc for pcfifioncr relying on the
judgrnentggf A:Cof1fi,. r%3:ibfled in AIR 2000 so 614 (in
the oa.se_of Vé. another), would submit
in . of cncmaching suit schedule property and
learned Counsel for pctitiencr has aiso relied on
“Q \ f J\’//’\§V ‘” N
and others), to corntznd that Court has the discrtfizixn _& M V’
amendment of plaint, even whcrc:”tZh’e”:::’l.i(‘:f
added by amcnclmcnt is barred by
3. The kaxned Counsel on the
judgment of Supreme .% ..§R,2oa$V’S¢VV2234 (in
the case ofChander Kmtté Singh Anand),
would submit is necessary for
the party t{3 §stiablish that he could
not havc ‘: éficmisc of due d1’l1gcnoc’
and caufienfi ‘ ‘
9. As be records, the dispute between
‘V V’ of violation of building bye-laws
of pan of the suit schedule property by
cict.’t’:r:3;_’i’ a&nt,v_ ‘lithe issue in an earlier suit. The plaintifi
V1325 GPA hokicr had fiiod”W.P.No.211l8/I998
‘za:jg;a:i1is;t..«Cit3.r Corporation and dctfendant hcmin ctmficnding
_ ofiinstrucfion made by defendant is in vioiation of
jw Vv . ‘Hie plainfifi for the reasons best known to him
‘=N.o.46/1999, ifpaxtics were to seek relief at a later stage,
building bye:-kaws and there ww K
Plaintiff:
10. It is seen fnom }
W.P.No.21l18/1998, there ” A
This Court has also nofioe-of ‘L’poi1d ¢:n<.:#'4r" of V :}r.r.s*i;ant suit
in£).S.No.729/1997. V " A'
1 1. In w.g?.4:«:9§:21 1 :31 hnldé-
_ that the
const1ft;ofion;"1z1f question by tho
ia vioiatrion ofthc Building
Rcgulatioizs of the iiaocncc
it, is him to seek appropriate
gcliegfin mg; gm aim-ady
'V .A was made on 17.63.1999. Therefore,
opportunity to sack relief as back as on
12. In View of amendment to C.P.C., by Act
N ‘<,,:; J"
they have to satisfy the that dcspitc
they were not able to know the facts: sought
by amendment.
13. In the case on héTn_.j:1’d-., in A’w,;>.N9T;2:1’i..13}V1§93, ” ‘
piaintiff was given to with
Itgaxd to violation of the instant suit.
The plaintifi’ has not and delay.
when the in the year 1993. by Q has commenced
consunefgicgfi ‘1j§§;§_’an¢1 ;,-‘omplctcd construction in
Novcrnbczf any falsity in the writtcn
statement fiiéu ._ b’y. .v’defcnfi;anL the plaintifi should have
V’ for a’ppropi;iAavi*15 rve1icf mam’ odiabcly without brooding
‘pveaf the ‘.- ” ‘_.
“””i!,4.v~..’:I’.l1¢asf’§:fo1t2, I hold the plaintifi’ has failed to satisfy
H zt;’qui1″m¢ncnts of pmvisions of Order 6 Rule 17 CFC. As
amendment of plaint schedule, the plainfifi has act
description of suit schedule pmpcrty and no rmsons
assigned by the plaintifli It is not sta _ in the
fi\:’ 4:’ «\,57″v’*'””9[/*~ as