JUDGMENT
K. Sreedhar Rao, J.
1. The second appeal arises out of the judgment and decree passed by the Civil Judge (Senior Division), Ramanagara in R.A. No. 63 of 1994 arising out of judgment and decree passed by the Munsiff Court, Channapatna in O.S. No. 200 of 1989.
2. The appellant is the plaintiff, filed a suit for permanent injunction against the first respondent not to open a door on the western wall of the first respondent house and the said suit was dismissed. It was the contention of the plaintiff before the Trial Court that the defendants’ house property bearing No. B. 372/1, B.M. Road, Channapatna adjoins the house property of the plaintiff bearing No. B/371. In between the said buildings a passage is situated measuring 5 ft. x 50 ft. The plaintiff claims that the passage exclusively belongs to him and that the defendant has no right to use the passage in any manner. It is said that if the defendant attempted to put up a door on the western wall of the house to have an access to the passage it would interfere with the rights of privacy of the plaintiff. The defendant on the other hand contends that he has obtained licence from the Municipality for opening a door on his western wall. Hence prays for dismissal of the suit.
3. It is pertinent to note that prior to filing of the suit, the dispute between the plaintiff and the defendants came to be resolved under a written agreement in which, the defendants conceded the exclusive right of the plaintiff over the passage and also undertook that he would not put up any door or windows in the western wall. In violation of the said agreement, it is contended that the defendants has obtained licence from the second respondent-Municipality and is attempting to put up a door. The plaintiff challenged the order of the Municipality, in granting the licence to the defendants to put up a door on the western wall, before the Deputy Commissioner. The appeal filed by the plaintiff was dismissed. Immediately thereafter the suit is filed.
4. In this second appeal, the following questions of law are formulated.–
(i) Whether the Courts below were right in rejecting the permanent injunction restraining the defendants from opening the doors on the western side of the plaintiff’s property, in spite of the compromise entered between the plaintiff and the defendant 1 as per the Ex. P. 2? and
(ii) Whether the Court below were right in dismissing the suit without considering the oral evidence of P.Ws. 3 and 4?
5. The appellant has filed I.A. No. I under Order 6, Rule 17, seeking amendment of relief of mandatory injunction. It is contended that the defendant has already opened windows on the western wall and was also attempting to open a door there. Therefore, an amendment of mandatory relief of closure of windows is sought under the application. The respondent has filed objections to the application.
6. On going through the averments in the application and the nature of relief sought by way of amendment, I find that the request is untenable. In the suit no objection is raised for opening of windows in the western wall. In para 10 of the plaint in the relief column, the plaintiff seeks injunction to restrain the Municipality from issuing a licence to defendants for opening a door on the western wall of the defendants. Therefore, seeking relief of closure of windows on the strength of the agreement at this late hour, after the expiry of period of limitation is untenable. Therefore, the application seeking amendment of the relief of mandatory injunction is liable to be rejected.
7. Apart from the oral evidence, the plaintiff relied on the agreement entered into between the parties, marked at Ex. P. 2. The said document is admitted by the defendants. In Ex. P. 2, the plaintiff and the defendant have agreed to certain terms relating to the disputed property in the presence of the President and Councilor of the Municipality, who are the witnesses to the document. Under the said agreement/Ex. P. 2, the defendant conceded that the passage exclusively belongs to the plaintiff and agreed that he would not open any windows or door on the western side. Later on, the Municipality passed a resolution withdrawing its consent to the terms under Ex. P. 2 and granted licence to the defendant to open the door and windows on the western wall.
8. The Trial Court found that the Municipality has lawfully granted licence and that the appeal filed by the plaintiff to the Deputy Commissioner, challenging the licence granted by the Municipality has been dismissed, found that there is no illegality on the part of the defendant to open a door and thus dismissed the suit.
9. The Appellate Court confirmed the judgment of the Trial Court on the similar grounds that the Deputy Commissioner has dismissed the appeal filed by the plaintiff and also finds that the doors and windows have already been opened even prior to the filing of the suit. Thus holds that the relief of permanent injunction cannot be granted.
10. Heard the Counsels for the appellant and respondents and perused the pleadings and evidence on record. There is a thorough misunderstanding on the part of the Municipality that it is a signatory to the document/Ex. P. 2 and the terms bind the Municipality. The President and the Councilor have been the witnesses to the document in their individual capacity. But they cannot represent the Municipality as such in such contracts. However, the Municipality can take note of such lawful contracts between the parties while granting the licence. If the Municipality grants licence, the aggrieved party under the contract can challenge the same in the Civil Court. The action of the second respondent-Municipality in passing a resolution and withdrawing the consent to Ex. P. 2 appears to have no consequence in law. The plaintiff and the defendants admittedly have entered into an agreement under Ex. P. 2. The agreement is a lawful agreement between the parties. The terms of the agreement clearly indicate that the defendant is prohibited from opening a door on the western wall. The defendant also agreed that he will not open any door or windows on the western wall. Insofar as opening of windows is concerned, they have been put up before filing of the suit and no relief is sought in the suit in respect of opening of windows. The plaintiff seeks permanent injunction against the defendant not to put up a door on the western wall. Therefore, whatever the breach of the agreement committed by the defendant in respect of opening of windows, would not be within the scope of scrutiny. The evidence on record clearly indicates that the defendant was attempting to put up a door on the western wall. At that stage the suit is filed. The finding of the Appellate Court that the door was already opened prior to the filing of the suit is untenable. The evidence of the plaintiff and defendants, clearly indicate that the door on the western wail is yet to be put up. Immediately, when the defendant was attempting to put up a door frame, the suit is filed and even at the stage of evidence before the Trial Court it discloses that no door was put up on the western wall.
11. In view of the evidence available on record, I find that the Courts below have grossly erred in appreciating the evidence in proper and legal perspective. Both the Courts were mislead by the fact that the licence is granted by the Municipality and confirmed by the Deputy Commissioner in appeal.. The authority of the Municipality to grant licence is not a pertinent issue in this suit. By mutual agreement the plaintiff and defendants have agreed to certain terms under Ex. P. 2 and defendants undertakes that he would not open a door. The agreement Ex. P. 2 is lawful and a binding agreement between the parties. In breach of the agreement, if defendants were to open a door, the plaintiff is entitled to enforce the agreement to prevent the defendants from opening a door. The grant of licence by the Municipality cannot come to the aid of the defendants to commit breach of the agreement nor the grant of licence could validate the action of the defendants, which is contrary to the terms of the valid contract.
12. In that view of the matter, the Point (i) is answered in affirmative and Point (ii) in negative and the judgment of the Court below in set aside. The suit of the plaintiff is decreed as prayed for.