No injunction can be granted unless the violation/deviation of license results in injury or a right in favor of the neighboring owner.

1. This appeal is filed challenging the order dated 25-11-2000 passed in I.A. IV in O.S. No. 4736 of 2000 on the following facts.

2. The defendant is the appellant and respondents are the plaintiffs and they would be referred as per their ranking before the Trial Court. The plaintiffs filed a suit for declaration and injunction. According to the plaint averment, the plaintiffs are entitled for free flow of air and light from 'B' Schedule property and any attempt on the part of the defendant in putting up the construction required to be injuncted. The Trial Court granted the injunction on the ground that the proposed construction conies in the way of enjoyment of the property belonging to plaintiff. An application was filed seeking to vacate the said order, The Trial Judge heard the matter and after hearing he rejected the I.A. The said order of rejection is challenged before me.

3. I have heard Sri G.S. Vishweshwara, learned Senior Counsel appearing for the defendant and Sri B.L. Jagadish, learned Counsel appearing for the plaintiff. Sri G.S. Vishweshwara contended that the Trial Court has failed to consider that at the instance of a neighbour no injunction can be granted. It is also contended by him that as a matter of fact even on facts, there exists only a vacant site adjacent to the suit schedule property and therefore the question of obstruction to free flow of air and light to the plaintiff is not made out in the case on hand.

4. Per contra the plaintiffs/respondents contended that the present construction is in violation of the license granted to the defendant.

5. In the light of the rival submissions, I have gone through the impugned order and on a careful consideration of the material placed before me I pass the following order.

6. It is an admitted fact that the suit has been filed by the plaintiff on the ground that there is a violation of setback area in terms of the Building Bye-laws. According to the plaintiff the construction is in violation of the sanctioned plan. Though the Corporation was a party to the proceedings it did not choose to file any objection. The Trial Judge noticed in the various circumstances ruled that a case is made out for grant of an injunction. This finding, is, as mentioned earlier, challenged before me.

7. This Court in the case of Mathew Phillips v P.O. Koshy, has categorically ruled in para 4 reading as under:

"The party, seeking 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.

The provision in the bye-law framed by Municipality requiring a clear space of 4 feet between the two adjoining premises 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. No temporary injunction can be granted in favour of the neighbouring owner in such a case".

8. 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 Vs. Smt. Jayashree and others, AIR 1990 Kant 236. 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 enjoymen