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S. Hardayal Singh Mehta and anr. Vs. Nirmala Devi and ors. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 89 of 1983
Reported inAIR1984Delhi350; 28(1985)DLT255; 1984RLR502
ActsDelhi Municipal Corporation Act, 1957 - Sections 337 and 347; Evidence Act - Sections 114; Delhi Police Act; Slum Areas (Improvement and Clearance) Act, 1956
AppellantS. Hardayal Singh Mehta and anr.
RespondentNirmala Devi and ors.
Advocates: D.D. Thakur,; B.S.C. Singh,; U.C. Sukla,;
Cases ReferredThompson Schwab v. Costaki
the case focused on the application filed under order 39 rules 1 and 2 of the civil procedure code, 1908, for grant of interim injunction, to restrain from running a guest house in a residential locality - it was observed the existence of common staircase and two flats were situated in close proximity - there were other disturbances that were created by the customers of the guest house - in view of the fact, it was ruled that it was a fit case, where the discretionary relief, already granted to the plaintiff, could be discharged - accordingly, the appeal was dismissed with costs - - (3) nirmala devi has complained that the mehtas made unauthorised constructions in october-november 1980 without any sanction under section 337 of the delhi municipal corporation act and that the change of.....d.p. wadhwa, j. (1) this is an appeal against an order of the learned single judge restraining the appellants from running a guest house in premises no. 1373, kashmere gate, delhi, till the disposal of the suit. the question in the present case assumes importance with the mushroom growth of guest houses/lodging house in delhi. (2) the plaintiff-respondent smt. nirmala devi claims to be owner of property bearing nos. 1371 and 1372 in kashmere gate, delhi. she is residing there with her family on the first floor since 1959. her family consists of her four sons, three daughters-in-law and their children. her married daughter also visits her occasionally. the adjoining flat no. 1373 is owned by defendants nos. 1 to 5. there is a common staircase to both these flats. both these flat owners lay.....

D.P. Wadhwa, J.

(1) This is an appeal against an order of the learned single judge restraining the appellants from running a guest house in premises No. 1373, Kashmere Gate, Delhi, till the disposal of the suit. The question in the present case assumes importance with the mushroom growth of guest houses/lodging house in Delhi.

(2) The plaintiff-respondent Smt. Nirmala Devi claims to be owner of property bearing Nos. 1371 and 1372 in Kashmere Gate, Delhi. She is residing there with her family on the first floor since 1959. Her family consists of her four sons, three daughters-in-law and their children. Her married daughter also visits her occasionally. The adjoining flat No. 1373 is owned by defendants Nos. 1 to 5. There is a common staircase to both these flats. Both these flat owners lay their claim to the ownership of the staircase but admit the right of user of each other. I, thereforee, take it that the staircase is common. When one climbs up the stairs the flat of Nirmala Devi is on the left and that of defendants Nos. I to 5 on the right. Defendants Nos. I to 5 let out their flat to Shri Hardayal Singh Mehta and Smt. Surinder Kaur Mehta, wife of Shri Hardayal Singh Mehta, defendants Nos. 6 and 7 respectively (for short described as the Mehtas) in 1978. The Municipal Corporation of Delhi is defendant No. 8, and the Commissioner of Police, Delhi, has been imp leaded as defendant No. 9 in the suit, which is primarily directed against the Mehtas who are running a guest house in the name of Paul Guest House in the flat. Nirmala Devi has filed the suit for injunction restraining the Mehtas from running the guest house and also for recovery of damages for damage caused to her premises on account of unauthorised constructions carried out in the flat under the tenancy of the Mehtas. Since admittedly the guest house is being run without any license either from the Municipal Corporation or the Commissioner of Police, Nirmala Devi has also sought directions requiring both these authorities to prohibit and stop the running of the guest house.

(3) Nirmala Devi has complained that the Mehtas made unauthorised constructions in October-November 1980 without any sanction under section 337 of the Delhi Municipal Corporation Act and that the change of user of the flat from residential to commercial was also without permission under section 347 of the said Act. She estimated the actual damage to her flat on account of these unauthorised constructions at Rs. l,05,555.00 and further estimated that the value of her flat had diminished by about Rs. 5 lacs. In the suit she had claimed Rs. l,51,000.00 in all. This is something which does not concern us in the present appeal. Nirmala Devi has also claimed various other reliefs but again we are not concerned with the same in this appeal.

(4) The main grievance of Nirmala Devi is that the running of the guest house is causing her nuisance. There are about 25 rooms in the guest house. We have been informed that the width of the common staircase is about 3'. In the written statement filed by the Municipal Corporation it has been stated that as per property tax records on the basis of the inspection report dated 1st September, 1972 the flat in question was being used for residential purposes and the construction consisted of one hall 20' x 20' with wooden partition, tinned roof, one verandah 9' x 20', two stores 6' x 8', one temporary tin roof, one store 8' X 5' and bath and latrine, but at present the construction consisted of 16 rooms and open court-yard. I am mentioning these facts not to show the amount of unauthorised construction as alleged but to take note of the size of the guest house. Nirmala Devi alleges that the running of the guest house cause her a great deal of nuisance and it is interfering with her peaceful living and that of her family in the flat. It is averred that many people of different classes and types and some even drunk come to the guest house at odd hours during day and night and use the stairs Thus use filthy and vulgar language. Sometimes, they try to enter the plaintiff's house because the entry doors to the house of the plaintiff and the guest house are facing each other. Further, the lodgers make noise during day time and also till late in the night. Sometimes, these lodgers ring the call-bell of the plaintiff and disturb her peace and tranquility. Lodgers of different kinds and character use the staircase when the members of the plaintiff's family are using the same. It is further alleged that radio transistors and tape recorders at full volume are used during major part of the day and for about 5-6 hours during night. The plaintiff also complains that huge signboards of the guest house have been placed by the Mehtas. With the suit, Nirmala Devi filed an application for interim relief. She prayed that the Mehtas be directed to 'stop the nuisance as detailed in the plaint by not allowing the guests to visit the guest house between 10 p.m. and 6 a.m.', this is I.A. No, 4324 of 1982. Nirmala Devi filed another application being LA. No. 833 of 1983 wherein she prayed that the Mehtas be directed to forthwith stop the running of the guest house and be further restrained from making any constructions in the flat in question. She also filed affidavits in support of her pleas. It was also averred that running of the guest house is hazardous from the fire point. The flat in question her all along been used for residential purpose till the Mehtas started running the guest house.

(5) In the replies and affidavits filed by the Mehtas it has been stated that no nuisance has been caused and that the user of the premises as guest house is in fact a residential use of the premises. The area where the guest house is located is predominantly commercial. It is also alleged that Nirmala Devi is herself using part of her flat for commercial purposes as her son is running his office as a Chartered Accountant. No unauthorised construction has been made. That the license have been applied for both from the Municipal Corporation as well as the Delhi Police, and that these licenses would be granted shortly. It has been complained that the action of Nirmala Devi in instituting the suit is mala fide. It has been alleged that she wanted to become a partner in the guest house and on the refusal of the Mehtas she made false complaints to the authorities.

(6) The learned single judge allowed the applications of Nirmala Devi and granted stay, as stated in the opening paragraph of the judgment. This appeal is by the Mehtas.

(7) In the judgment under appeal the learned single judge has referred to the relevant files of the Municipal Corporation and the Delhi Police regarding the grant of licenses for running the guest house and has noted the fact that no licenses have been granted to the Mehtes. But, the Mehtas have a grievance that these files did not constitute any evidence and no reliance could be placed on the same. I have examined the record of the suit and I find that full opportunity was granted to the parties to inspect these files and in fact after Inspection of the files an affidavit was filed by Hardayal Singh Mehta, one of the appellants. The appellants have attacked the finding of the learned single judge that 'the approach to her residence is from the same staircase. The guest house being more or less a public place the staircase must be used at all odd hours. The use of the premises as guest house by people who are addicted to liquor also cannot be ruled out.' It is stated that there is no evidence to support this finding. A further attack is that the learned single judge could not take into account the fact that there were no licenses to run the guest house inasmuch as the suit was based on the tort of private nuisance. On merits also it is contended that that was no ground to grant the interim relief.

(8) I do not think there is anything wrong in the observations of the learned single judge. A judge is supposed to know the facts and realities of life. Under section 114 of the Evidence Act, the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustrations mentioned in this section are not exhaustive end other presumptions of a similar kind can be made. A judge will know the attendant circumstances of running a guest house.

(9) The question that arises for consideration is : Is it reasonable that the plaintiff should have put up with the interference alleged in the suit The learned single judge summarised the various types of nuisance complained of in paragraph 6 of his judgment. I will not give any credence to the plea of the Mehtas that Nirmala Devi has brought this suit mala fide only after her request to become a partner in the guest house was refused by them.

(10) Clerk and Lindsell on torts have defined nuisance as under :

'THE essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. In common parlance, stenches and smoke and a variety of different things may amount to a nuisance in fact but whether they are actionable as the tort of nuisance will depend upon a variety of considerations and a balancing of conflicting interests. An actionable nuisance is incapable of exact definition, ... Nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of, (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land, when it is a private nuisance.'

This commentary, while dealing with the question of private nuisance, says that a private nuisance may be and usually is caused by a person doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbour by unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land. Nuisance of this kind are varied but to be actionable, however, the nuisance must be such as to be a real interference with the comfort or convenience of living according to the standards of an average man. The character of the neighborhood will also have to be seen. Thus, to constitute the tort of private nuisance the defendant's act must interfere with the plaintiff's use and enjoyment of his land, the interference being unreasonable. The interference may be caused by a variety of different types of invasions by vibrations, flooding, electricity, fire smell, noise, dust and sewage; (see Baker on tort). What is an unreasonable interference is often a vexed question to decide. In Jhomoson-Schwah v. Costaki (1956)1 All Er 625, even an offensive sight was held to be an actionable nuisance. In this case, taking the facts from the bead-note, the plaintiff was residing together with his family in a residential street in London and the adjoining house was used by the defendants for purposes of prostitution, their practice being to police men in nearby streets and to bring them to the house. The plaintiff brought an action to restrain the defendants from using the house for the purpose of prostitution and successfully obtained an interlocutory injunction. It was held that the plaintiff had shown a sufficient case for an interlocutory injunction, in that, the activities of the defendants constituted a sensible interference with the comfortable and convenient enjoyment of the plaintiff's residence, having regard to the usage of civilized society and to the character of the neighborhood. Lord Evershed, M.R., in the course of the judgment observed that :

' The case made for the plaintiffs shows to my mind at least a sufficient prima facie case to this effect, that the activities being conducted at No. 12, Chesterfield Street are not only open, but they are notorious and such as force themselves on the sense of sight at least of the residence in No. 13. The perambulations of the prostitutes and of their customers is something which is obvious, which is blatant, and which as I think the first plaintiff has shown prima facie to constitute not a mere hurt of his sensibilities as a fastidious man, but so as to constitute a sensible interference with the comfortable and convenient enjoyment of his residence where live with him his wife, his son and his servants. It appears to me, thereforee, that for the purposes with which we are concerned, viz., the protection of the plaintiff's rights pending a trial, there was ample justification for the judge, using his discretion, to grant an injunction. The exact extent and character of the alleged nuisance will be judged when oral evidence is given, and it will then no doubt be possible to form a closer view of the interference and inconvenience then appears from the written word in an affidavit.'

Romer, L.J., agreeing with the observations of Lord Evershed, M.R., said :

'AS Lord Evershed, M.R., said, one of them at all events-indeed I think both of them -have young sons living there and their wives, and one of them has three young servants. One can well imagine the effect of what is going on in the house almost next door in one case and exactly next door in the other is likely to have on the minds of those young people. One can imagine also the feelings of visitors who come to the houses, or are invited to the houses, and all sorts of other considerations inevitably arise from the user to which the defendants have openly been putting the house to which they have restored.'

(11) In another case. Laws and others v. Floringlaro Ltd. and another (1981)1 All Er 659, an injunction was sought against opening a sex shop The locality was an area which included residential accommodation in some streets and restaurants, snack bars, food stores and so forth in others. There were a major railway terminal and a bus garage in the vicinity. The plaintiff sought an injunction and damages against the defendants and also moved an application for an interlocutory injunction pending trial. It was held that it was the established law that cases of nuisance were not confined to cases where there was some physical emanation of a damaging kind from the defendant's premises which had occurred or was reasonably feared but extended to cases where the use made by the defendant of his property was such that, while not necessarily involving a breach of the criminal law, it was such an affront to the reasonable susceptibilities of ordinary men and women that the fact of its being carried on in such a way that its nature was apparent to neighbours and visitors constituted an interference with the reasonable domestic enjoyment of their property. The possibility of the sex shop attracting undesirable and potentially dangerous customers and it becoming a plague spot which would be a source of infection in the neighborhood could not be ruled out. It was said that the fact that however discreetly conducted, the business would in fact be the sale of hard pornography and would be a business deeply repugnant to the reasonable sensibilities of most ordinary men and women could not be disregarded. The court examined the question of balance of convenience, and granted injunction as prayed.

ADMITTEDLY, the activity of running of a guest house in the premises is unlawful inasmuch as no license either under the Delhi Municipal Corporation Act or the Delhi Police Act has been obtained in the absence of which it is an offence to run a guest house. It is thereforee not necessary to refer to the relevant provisions of the Delhi Municipal Corporation Act or the Delhi Police Act or the Regulations framed there under with regard to the running of a guest/lodging house. When asked as to how the guest house could be run by the Mehtas in the absence of a license, it was submilted, particularly with reference to the Delhi Municipal Corporation Act, that the Act merely envisages a daily fine if there is no license, and that a writ petition had been filed for grant of a license under the Delhi Police Act. This is really a bold submission. During the course of the hearing of the appeal, it was noticed that a Civil Writ Petition No. 2128 of 1983 (Paul Guest House v. Commissioner of Police, Delhi and others) had been filed by the Mehtas and was fixed before us. The hearing in the appeal concluded on 12th December 1983, and the Writ Petition was listed for 13th December. 1983 when it was adjourned but it was noted therein that an order had been passed under the Delhi Police Act rejecting the application of the Paul Guest House for a license to run a guest/lodging house in the premises in question.

(13) The appellants argue that the learned single judge has heavily relied upon the fact that they do not have any license to run a guest house, and this is the sole basis for the learned single judge to pass the order of injunction. It is contended that existence or non-existence of a license is not a relevant consideration to determine whether there is an actionable nusiance. Such a nuisance may exist even if there is a license to run the guest house. I do not think that the learned single judge solely considered the factum of absence of a license. He analysed various acts of nuisance complained of by Nirmala Devi in his judgment. To my mind, absence of a statutory license which entails prosecution may certainly be a relevant consideration for grant of injunction or otherwise when the question of balance of convenience is considered. The question whether in a suit the plaintiff can ask the authorities to do their statutory duty is not before us in this appeal though in the suit one of the prayers of Nirmala Devi is that the Municipal Corporation of Delhi and the Delhi Police be directed to prohibit and stop the running of the unauthorised guest house in premises No. 1373, Kashmere Gate, Delhi, and for issuance of a mandatory injunction compelling them to perform their duties. It is also not material if the running of a guest house is a residential user in law if its running causes a nuisance to the plaintiff in the enjoyment of her property. It was also argued by the appellants that by passing the order of injunction, the learned single judge has appropriated to himself the jurisdiction vested in the authorities, i.e., the Commissioner of Police and the Commissioner, Delhi Municipal Corporation. I do not think that it is so. The learned judge has found a prima facie case in favor of Nirmala Devi and also took into consideration the circumstance that the running of the guest house was unlawful. The finding would be the same even if the fact of absence of license is not taken into account.

(14) Nirmala Devi contends that the area is predominantly residential though there are commercial activities as well. The Mehtas contend otherwise. This question will have to be gone into in detail during the bourse of the trial. Suffice to say that the Mehtas or the owners of flat No, 1373 have not been able to controvert the allegation of the plaintiff that this flat was earlier being used for residential purpose only, though for some time it remained locked as well. As noticed above, the Municipal Corporation in its written statement supports the stand of Nirmala Devi.

(15) The plaintiff also relied upon the provisions of the Slum Areas (Improvement and Clearance) Act, 1956, in support of her contention against the running of a guest house in the premises and in the area on the ground of the applicability of the Act. Counsel for Nirmala Devi relied upon a decision of the Supreme Court in K.R. Shenoy v. Udipi Municipality : [1975]1SCR680 . This judgment deals with the powers of a statutory authority and the right of an individual to enforce its obligations and it may not thereto e be quite relevant at this stage. Moreover, the High Court was exercising jurisdiction under Article 226 of the Constitution against which order the appeal was filed in the Supreme Court after obtaining special leave to appeal. Dealing with a contention that if there was any breach of a statutory duty an individual would not be entitled to any relief without an injury, the court held that the breach of a statutory duty created for the benefit of an individual or a class was a tortious act. Anyone who suffered special damage thereforem was entitled to recover damages.

(16) The acts which Nirmala Devi complains of are not fanciful. They can be attendant to the activities of a guest house. It is not a small guest house. There are about 25 rooms in it with a capacity of 40 persons. This she has said on affidavit and there is no denial of the same. A bold assertion of the Mehtas that no nuisance has been caused is not enough. The guest house runs 24 hours and all types of people visit it at all hours. It is located near the Inter State Bus Terminus. Nirmala Devi has complained that some time visitors are drunk and use filthy and vulgar language. Drinking and singing goes on in the great house. She also complains of noise. She is using her flat for residence. The staircase is common which is used by her and her family members and so also by lodgers and visitors of the guest house, who are strangers. No ordinary and reasonable man living with his family can put up with such activities and cannot certainly have a quiet and peaceful living in his house. Merely because a small room is used by her son who is a Chartered Accountant will not entitle the Mebtas to run a guest house in the adjoining flat. I am not saying that every commercial user would be a nuisance. It depends upon the activity being carried on. After giving careful thought to the whole matter, I think, the learned single judge was right in his view. The injunction has to be absolute and unqualified. The right of Nirmala Devi to enjoy her property cannot be put in jeopardy during the pendency of the suit. She has made out a prima facie case.

(17) It would have been more appropriate for the Mehtas to make a submission to the court that they would not run the guest house till they were granted license by the authorities and to defer consideration of the applications filed by Nirmala Devi till such time as a license was granted. Their attitude, however, appears to be one of defiance of law which the court cannot countenance.

(18) In the result, the judgment of the learned single judge is affirmed and the appeal is dismissed with costs.

D.K. Kapur, J.

(19) I agree that the appeal should be dismissed, but I would like to dispel the appellant's main contention by a different line of reasoning. The appellants are running a guest house which is merely a misnomer for a lodging house. If it was a mere guest house, i.e., a place where the appellants keep guests, it might be a different situation. Admittedly, the appellants are running a lodging house which is like a small hotel.

(20) At the same time, it must be kept in view that a lodging house can be run lawfully after getting the necessary license and it can also be run despite the prohibition for running the same without a license as required by the Delhi Municipal Corporation Act, 1957 or the Delhi Police Act. We are dealing with a case where the lodging house complained of is being run without any license.

(21) The main contention of the appellants that a lodging house which is prohibited by law cannot be stopped at the instance of the neighbour by recourse to the law of nuisance. In other words, the contention is that it is a matter for the authorities under the Delhi Municipal Corporation Act or the Delhi Police Act.

(22) I think that different considerations arise for the application of the law of nuisance when a lodging house is run under a license and when it is not. If an injunction is sought to restrain a lawful activity a strong prima facie case is to be established at the interlocutory stage. Also, grant of an interim injunction without a trial is a serious matter. It seems almost to decree the suit without a trial and, thereforee, such an injunction can only be granted especially in a case where the effect is to stop the business on a strong case.

(23) In my view, if the lodging house was being run under a license it would be very difficult to grant an interlocutory injunction. Of course, if the nuisance was established after a trial, the Court could grant the relief of injunction. But, it seems difficult to visualise the grant of an injunction at the interlocutory stage in such a case as applied to a running business. This is the circumstance that has impelled me to append a second judgment in this case.

(24) As stated in the principal judgment, on the basis of the two English cases cited, i.e. Thompson Schwab v. Costaki case (supra) and Laws and other v. Flaring Place Ltd. case (supra) an interlocutory injunction has been granted in respect of a house being used for prostitution and a sex-shop. But this activity can be treated asperse of a type leading to a nuisance to a neighbour especially if a respectable locality is involved. The running of a lodging house is not an unusual occupation is most places.

(25) In this context, it is necessary first to refer to section 417 of the Delhi Municipal Corporation Act, 1957. The relevant portion reads as follows:

'417. Premises not to be used for certain purposes without license. (1) No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf, namely : (a) any of the purposes specified in part I of the Eleventh Schedule: (b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance.'

The 15th Entry in Part I of the Eleventh Schedule reads :

'LODG INGhouse. Keeping of a'. Thus, the keeping of a lodging house is prohibited if no license has been obtained. There are provisions in the Act by which the Commissioner can stop an illegal user, but they need not be referred to here.'

(26) If there is a person who is aggrieved by the unauthorised activity of his neighbour, he has a much stronger case than if he is aggrieved by the lawful activity of his neighbour. If the activity is lawful, then he has to show a much stronger case as to why relief should be given. But, if the activity is unlawful, then an injunction would be readily granted.

(27) Suppose there is a small factory or manufacturing activity in the neighborhood : the running of a lathe or a floor mill or the repair of manufacture of vehicles, etc. all these can be under a license or they may be without one. These activities create sound, vibration and other types of disturbances which may well be classified as nuisance. If the activity is permitted by a license, then the Court may insist that in spite of their nuisance value, these activities cannot be stopped and may regularise them in some other way. But, it is difficult to imagine the business being entirely stopped at the instance of the neighbour. No one can deny that in the very large area that Delhi covers, there are many activities lawfully carried on by the citizens that can be classified as having nuisance value to a neighbour. However, the Court will not readily grant an injunction to restrain the carry ing on of such activities, at the interlocutory stage of a suit.

(28) If the activity is without a license, it is per se unlawful and, thereforee, any disturbance which can be described as intolerable is likely to lead to the grant of an interim injunction to restrain the carrying on of such activity.

(29) There is, thereforee, no doubt that a trade carried on with a license is to be viewed quite differently from a trade carried on without a license. Seen in this light, the complaint of the plaintiffs regarding disturbance due to the existence of a common staircase and the noisy nature of the persons staying at the 'Guest House' as well as other disturbance created as a consequence of customers of the 'Guest House' arriving at odd times or being drunk or disorderly it can be said that there is a prima facie case for injuncting the continuance of the 'Guset House.' This is especially necessary in case, by the existence of the common staircase and possibly the fact that the two flats are situated it is a prohibitory close proximity to each other. So, it is a case in which injunction had to be granted at the interlocutory stage. In as much as the learned single judge has thought fit to grant the injunction, I do not think this is a fit case where the discretionary relief already granted to the plaintiffs should be discharged. The appeal is accordingly dismissed with costs.

(30) As there may be some guests in the guest house who have to be displaced as a result of the decision in the appeal, we would grant one week's time for them to vacate.

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