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Nirmala Devi Vs. Virawali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberSuit No. 1537 of 1982
Judge
Reported in1984(7)DRJ211
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rule 1
AppellantNirmala Devi
RespondentVirawali and ors.
Advocates: S.N. Kumar,; S.N. Benadikar,; B.S.C. Singh and;
Excerpt:
.....requirements do not appear to be satisfied in this case. it is hardly possible to characterize the commercial activities which the defendants are proposing to start as by itself causing nuisance or annoyance. these activities by their very nature are run for a limited number of hours and the least that can be said is that these commercial activities per se are not such as to result in nuisance, annoyance or inconvenience. in such an event the plaintiff has to indicate as to in what manner it is going to cause inconvenience or nuisance to her. in the present case the nuisance or inconvenience apprehended by the plaintiff in any event is not of such a nature as would justify a preventive action by total deprivation of the defendants to make use of their property. i have earlier said that..........requirements do not appear to be satisfied in this case. it is hardly possible to characterize the commercial activities which the defendants are proposing to start as by itself causing nuisance or annoyance. (3) these activities by their very nature are run for a limited number of hours and the least that can be said is that these commercial activities per se are not such as to result in nuisance, annoyance or inconvenience. in such an event the plaintiff has to indicate as to in what manner it is going to cause inconvenience or nuisance to her. in the present case the nuisance or inconvenience apprehended by the plaintiff in any event is not of such a nature as would justify a preventive action by total deprivation of the defendants to make use of their property. i have earlier said.....
Judgment:

Malik Sharief-Ud-din, J.

(1) The suit property i.e.. House No. 1373 belongs to the defendants and under law and Constitution they can put it to any lawful use. Earlier when defendants were restrained from running the Guest House the main consideration on the basis of which that order was passed was that the defendants were running the Guest House in violation of law of the land and what is not permitted by law cannot be regularised by the court. That chapter is closed. In order to entitle the plaintiff to a restraint order of the kind and quality now asked for she has to show a prima facie case and has also to indicate that there is likelihood of an irreparable injury being caused to her and that the balance of convenience is in her favor. It may, however, be pointed out that the mere existence of a prima facie case by itself will not entitle the plaintiff to a restraint order. The aspects of comparative equities, balance of convenience and irreparable injury also have to be satisfied. The plaintiff has to show that the user under challenge is causing inconvenience, annoyance or is capable of becoming a source of nuisance or is likely to interfere in the peaceful enjoyment of-her property. The inconvenience, annoyance and nuisance must as such be real and potent and not imaginary or fanciful. A restraint order depriving a person of lawful enjoyment of his property is a grave and serious matter as it will have the effect of practically disabling and depriving a party from the enjoyment of his property in a lawful manner pending adjudication of the claims of the parties. It is thus too serious a matter to be given a casual or a routine treatment.

(2) As indicated above, the existence of a prima facie case by itself would not entitle the plaintiff to seek an order of restraint as she will have to show that the balance of convenience is in her favor and that if the defendants are not prevented from carrying on the impugned activity it is likely to result in an irreparable loss. The plaintiff besides this will have to show that such activity is likely to become a source of real nuisance and not merely imaginary and fanciful injury. These requirements do not appear to be satisfied in this case. It is hardly possible to characterize the commercial activities which the defendants are proposing to start as by itself causing nuisance or annoyance.

(3) These activities by their very nature are run for a limited number of hours and the least that can be said is that these commercial activities per se are not such as to result in nuisance, annoyance or inconvenience. In such an event the plaintiff has to indicate as to in what manner it is going to cause inconvenience or nuisance to her. In the present case the nuisance or inconvenience apprehended by the plaintiff in any event is not of such a nature as would justify a preventive action by total deprivation of the defendants to make use of their property. I have earlier said that the plaintiff herself has four offices in her part of this premises. How then can she deprive the defendants from using their property in a similar manner. The nature of such activity obviously is such that there is no imminent danger of irreparable injury. The plaintiff has no justification to seek an ad-interim injunction against such lawful activities of-the defendants on the strength of the earlier order that was passed for different considerations and under different circumstances.

(4) The property is situated in Kashmere Gate on the main and congested road and according to the zonal plan the existing land use is very much mixed up with concentration of business in the area. The land use according to the Zonal Plan, and the situation of the property is shown to be commercial. The defendants 6 and 7 ever since they took it on lease have been using it for commercial purposes and in fact the property is let out to them for commercial purposes. The stand of defendants I to 5 is also that even earlier to 1978-79 when the property was let out to defendants 6 and 7 it was being used for commercial purposes. It has been indicated by the defendants supported by the photographs of both the premises that in fact the plaintiff is also using her adjoining flat for commercial purposes as there is a Homoeopathic Clinic of Dr. (Mrs.) Pushpa Gupta, even indicating consulting hours on the board, office of Kamal & Co. Chartered Accountants, Office of Vinod Gupta, Advocate and Office of R.K. Associates and that all this goes to show that these properties are not exclusively used for residential purposes.

(5) Learned counsel for the plaintiff has submitted that these are the name plates of their own family members. But on going through the photographs I find that these are not actually name plates but are boards which are displayed on commercial establishments. The mere fact that even the timing of consultation is mentioned in the board of Dr. Pushpa Gupta goes to show that commercial activities are going on even in the premises belonging to the plaintiff. In these circumstances it cannot defendants is not prima facie correct.

(6) It is an admitted position that these houses are situated in the old city slum area and when these were constructed their user was riot regulated by any law. That goes to account for the report appended to the zonal plan that the existing land use of the area is very much mixed up. It will not, thereforee, be correct for the court to say at this stage particularly in view of the activities the plaintiff is carrying on her own premises and in view of the zonal development plan showing it as a commercial area that the premises cannot be put to commercial use. It is clear from the sale-deed in favor of the plaintiff that at the time, when she purchased the premises it was being also used for commercial purposes and was under the occupation of Walker Chandlok& Co.

(7) The next point pressed into service is that the plaintiff has a right of easement. I have frankly failed to appreciate the argument. The premises regarding which restraint order is sought are exclusively owned by the defendants. It is not in the form of servient heritage. Indeed, there is no relationship of a dominant owner and servient owner between the parties and the only property which is common to both is the stair-case on which both of them are exercising a right of user, and which is not disputed by the defendants.

(8) The third alternative argument advanced is that if the defendants are permitted to indulge in any commercial activity it is likely to create a nuisance for the plaintiff. I may at once state that the premises is exclusively owned by the defendants and they cannot be deprived of putting it to any lawful use. All commercial activities cannot be a source of nuisance. In fact, the commercial activities are going on in the entire area . the ground floor premises of both the parties is admittedly being used for commercial purposes and the plaintiff herself has inducted about four commercial offices in her premises.

(9) If this is not causing any inconvenience, annoyance, nuisance or injury to the plain tiff how then it is possible to say that any commercial activity that the defendants may carry on in their premises is going to cause any injury to the plaintiff, The plaintiff, in fact, has just made a bald statement that any commercial use by the defendants of the premises is going to create a nuisance. It is not specifically stated as to what is the kind and quality of the nuisance that is being apprehended by the plaintiff. There are admittedly a large number of rooms in the defendants premises and if they were to induct a large number of persons for residential purposes the plaintiff cannot deprive them of their right to do so on the plea that it was likely to cause inconvenience and injury to her. The plaintiff cannot be said to have a prima facie case restraining a rightful owner from putting his property to any lawful use.

(10) Brief facts: The plaintiff filed a suit for damages, permanent injunction mandatory injunction, particularly for restraining defendants Nos. 6 & 7 from carrying on Paul Guest House or any other guest house in the property in dispute. Interim order to that effect was passed to remain operative till the disposal of the suit, which was confirmed by a Division Bench and an Special Leave Petition . in this was also dismissed by the Supreme Court. The defendants following the orders of the Court, stopped running the guest house. The other prayer made in the same application was that the impugned property may be directed to be sealed by the police and the Keys deposited in the Court. Since the property belonged to defendants, the Hon'ble Court refrained from passing any such orders.

(11) Plaintiff moved I.A. No. 3086/84 under Order 39 Rules 1 & 2 read with Section 115 Civil Procedure Code praying for issuance of a temporary injunction restraining the use of the impugned property for any Commercial purpose whatsoever. The Hon'ble vacation Judge passed the above prayed temporary injunction. Defendant No. 4 moved I.A. 4010 of 1984 under Order 39 Rule 4 .read with Section 115 Civil Procedure Code requesting for early hearing and for vacation of the restraint.order passed in I.A. No. 3086 of 1984.

(12) The plaintiff had only the right to use the stair-case of the impugned property. The ground floor of both the plaintiff's and defendant's property are being used for commercial purposes and otherwise the . impugned property is situated in Kashmere Gate on the main and congested road and according to the Zonal plan the existing land use is very much mixed up with concentration of business in the area. Plaintiffs application for restraining the defendants from using the impugned premises of any use whatsoever was dismissed.


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