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Judgment
A.V. Chandrashekara, J.—The present appeal is filed challenging the order rejecting temporary injunction passed on 2.12.2014 in O.S. 7125/14 by the XLII Additional City Civil Judge, Bengaluru. The appellants herein are the plaintiffs, and respondents are defendants in the said suit.
Plaintiffs have a the suit for the relief of permanent injunction against the defendants with a request to grant injunction to restrain them from interfering with the educational activities to be carried on by the 1st plaintiff society in the suit schedule property. During the pendency of the suit, an application came to be filed under Order XXIX Rules 1 and 2, C.P.C. supported by the affidavit sworn to by Smt. Louisa Manohari, managing trustee of the 1st plaintiff. The said application came to be contested by the defendants and ultimately the ex parte order of temporary injunction has been vacated under Order XXXIX Rule 4, C.P.C. by order dated 2.12.2014. It is this order which is called in question ion this appeal on various grounds as set out in the appeal memo.
Heard learned counsel for the parties. Perused records.
The suit property is shown as a commercial building bearing No. 29, 9th Cross, Hampinagar, RPC Layout, Bengaluru, comprising of cellar, ground, first and second floors. In support of the application filed under Order XXXIX Rules 1 and 2, C.P.C. the managing trustee has sworn to an affidavit stating that the 1st plaintiff is a trust and plaintiffs 2 and 3 are the absolute owners of the suit schedule property and the khatha stands in their name. It is their case that Bangalore City Corporation has approved the plan to put up a commercial building on the site. When the building was completed, they obtained permission of lease on 19.6.2014 and thereafter were attempting to start a kindergarten in the said building. On 11.9.2014, the defendants started obstructing the staff of the 1st plaintiff and in spite of a complaint being lodged with the police, they have not taken any action and as such, they were forced to file the suit for permanent injunction.
Defendants have filed written statement denying all material averments and they had filed an application under Order XXIX Rule 4, C.P.C. with a request to vacate the order of temporary injunction. According to them, plaintiffs 2 and 3 are not absolute owners of the suit schedule property and that the same is constructed in the residential zone in violation of the zonal regulations, since the entire area is comprised of residential houses, the commercial building put up by the plaintiffs is in violation of the sanctioned plan and the same has been leased to the 1st plaintiff. It is further stated that no objection has not been obtained from the residents to run the school. According to them, plaintiffs 2 and 3 have not obtained any occupancy certificate as required under clause 5.6 of the by-laws and they cannot allow the 1st plaintiff to occupy the building. It is further stated that running of kindergarten in the premises will cause great inconvenience and hardship to the residents of the area. With these averments, they have requested the court to dismiss the suit as also the LA. under Order XXXIX Rules 1 and 2, C.P.C.
Ultimately learned judge has chosen to dismiss the application and has vacated the ex parte order of temporary injunction.
What is argued by the learned counsel for the appellants is that on 31.3.1980, the Director of Public Instructions has given permission to the 1st plaintiff to open a branch of New Cambridge Education Trustbridge School at RPC Layout Extension, Bengaluru, and it was issued after inspecting the spot. It is further argued that obtaining fresh permission is not necessary. It is argued that earlier kindergarten was being run two buildings away from the schedule property and now for better facilities to the children, it is being shifted to the schedule property and therefore, it is in accordance with law.
As could be seen from the rough sketch produced by the defendants, it is evident that New Cambridge Education Trustbridge School is on the other side of 9th Cross, RPC Layout, Bengaluru. What are the required steps to be taken by the school authorities to run the pre school/kindergarten are found in the regulations issued by the Government of Karnataka. As could be seen from the said regulations, children aged 3-5 years could be admitted to nursery, LKG and UKG, and no permission could be accorded to run kindergarten in the vicinity of Anganwadis. Prior permission will have to be obtained before 31st of March of every educational academic year.
After the receipt of such application, the authorities would visit the building to ascertain whether there is scope for sufficient air, light and bathrooms, electricity, furniture, drinking water facility, etc. have been provided. Just because the 1st plaintiff has obtained permission to start kindergarten in the year 1980, it cannot be said that the same is applicable to start the same in another building. The authorities will have to visit well in advance and give a report about the feasibility of using such building for running kindergarten or pre school nursery.
The earlier permission granted on 31.3.1980 by the then Director of Public Instructions is relatable to the building which is on the other side of 9th Cross, RPC Layout, and not to the schedule building in which the 1st plaintiff intends to start kindergarten or pre school nursery. Since the comfort and safety of the children is the main requirement, the Government has to give some useful information to the concerned school authorities to comply with the obligations prior to starting or establishing pre school.
It is true that plaintiffs 2 and 3 are the owners of the schedule building and intend to allow the 1st plaintiff to use it for commercial purpose. Admittedly they have obtained permission to construct a building for residential purpose. Whether the building put up is in accordance with the provisions of the Municipal Corporations Act and by-laws framed thereunder, will have to be looked into. In fact, documents produced by the defendants show that the Corporation has issued confirmation order on 9.10.2014 under Section 321(3) of the K.M.C. Act, directing plaintiffs 2 and 3 to demolish the unauthorized construction and comply with the sanctioned plan within seven days. Defendants are resisting the acts of the plaintiffs in starting the school in a residential area by utilizing the building constructed in violation of the sanctioned plan.
The first appellate court cannot interfere with the order passed by the trial court either refusing to grant or granting temporary injunction, unless the order of grant or refusal to grant suffers from any absurdity or perversity. Even if the appellate court were to come to a different conclusion from that of the one arrived by the trial court, the same cannot be substituted, unless it suffers from any absurdity or perversity.
On going through the records and the impugned order, this court is of the opinion that the trial court is justified in passing the impugned order. No infirmity is found in the impugned order. Hence the appeal is dismissed. Parties to bear their own costs.