Ujagar Singh vs Karnail Singh

N.K. Kapoor, J.—This revision-petition is against the order of the Additional District Judge, Ludhiana, dated 15.2.1992 whereby the order of the trial Court was modified thereby permitting the Respondent to run his workshop between 7 a.m. to 7 p.m. as an interim measure till the disposal of the suit.

Ujagar Singh Plaintiff-petition filed a suit for permanent injunction directing the Respondent to remove the machines installed in the adjoining place as well as running the same as the operation of these machines is a source of great nuisance. By way of interim relief, the Plaintiff-petition sought mandatory injunction restraining the Respondent from running the machinery till the decision of the suit. As per averments in the plaint, it was the case of the Plaintiff that the Respondent has installed machinery in his residential home which is adjacent to the house of the Plaintiff. It is further case of the Petitioner that this machinery consists of adda cutting machines, iron bars cutting machines, diesel engine etc. The vibrations cased due to the running of these machines has caused cracks in the adjoining walls of the Petitioner and the constant noise prevents the Petitioner who is an old person of 70 years of age and otherwise suffering from heart ailment and blood pressure, from peacefully spending his days at home. Not only this, on account of this noise, the Petitioner''s grand children are unable to study.

Respondent put in appearance, controverted the various averments made in the plaint and further averred that the alleged workshop is in existence for almost 13 years and so the present suit is barred by delay, laches and acquiesence on the part of the Plaintiff-petitions. In addition. it was stated that similar other workshops, i.e. floor mills and saw-mills of Mohinder Singh and a workshop of Nauhria Singh in the vicinity of the house of Petitioner are in existence.

By way of reply to the interin injunction, Respondent denied all the material allegations of the Petitioner, and thus prayed that the application is without any merit and marits dismissal.

The trial court granted the injunction order as sought but the same was modified in appeal as stated above.

The relief of interlocutory mandatory injunction is granted generally to preserve or restore the status-quo of the last non- contested status which proceeded the pending controversy until the final hearing when full relief may be granted or to compel the undoings of those acts that have been illegally done or the restoration of that which was wrongly taken from the party complaning it. The court has to balance the respective claim of both the parties before granting such an injunction by way of interim relief so as to avoid a position which may not be retrievable. Granting of interlocutory mandatory injunction in a case which ultimately fails would occasion an irreparable loss to the party against whom such an injunction was issued. Similarly, non-granting of interlocutory mandator injunction in a case which ultimately succeeds would deprive the party of the Degitimate relief till the decision of the suit. Loss or injury in each case can be said to be irreparable. The apex Court in the judgement reporter as Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. Judgement Today 1990 (1) SC 199 has approved the following guidelines for evaluating contentions of the parties in a given case.

1) The Plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

3) The balance of convenience is in favour of one seeking such relief. Thus, as per this judicial pronouncement, the court has to come to a of the case except for the fact that machinery is installed in the adjoining house of the Plaintiff. Parties differ with regard to the nature of this installation, the time since when the same are in operation, noise which is being emitted by operating all these machines etc. According to the Plaintiff, the Defendant was previously operating his small machines only but now has installed heavy machinery about three months back. Installation of the machinery in an area pre- dominantly residential per se can betaken to be a source of nuisance and appropriately the other party can be restrained from operating machines which create unbearable noise.

However, the case of the Defendant is that the workshop is being run in the premises in question for the last 13 years without any interruption or interference. According to the Defendant, lathe machine was installed in year 1982. The other machines were installed in the years between 1979 to 1983. The Defendant further contested the claim of the Plaintiff that the workshop has been set up in a residential locality by making reference to the existence of flour and saw-mill of Mohinder Singh and of Nauhria Singh adjoining to the other side of the house of the Plaintiff for which the Plaintiff has not even raised a protest till today. There is no denying the fact that operation or such like activities in the neighbourhood especially in a residential area would be a source of nuisance and so actionable. For obvious reasons, however before granting injunction as sought by the Petitioner the court has to view the other attendant circumstances of the case as appear of the pleadings of the parties also. The case being at the primary stage, it would be highly pre-mature to pre-judge the respective contentions of the parties on the basis of mere, assertions only. The Defendant''s emphatical assertion that this workshop is in existence for the last 13 years is supported by affidavit, cannot be said to be wholly deviod of merit. May be, the Respondent was running the workshop with few machines than now installed which consequently impelled the Plaintiff to seek a restrain order. The Defendant''s version has some element of truth as even according to the Plaintiff, the Defendant had been running his workshop in the adjoining room of the Plaintiff''s house as stated in par No. 1 of the plaint. Whether in fact new machines have been added and if so when, is yet to be adjudicated by the trial court. Faced with this dilemma, some balance has to be struck in view of the divergent stand of both the parties.

Learned Counsel for the Petitioner relied upon a number of judgments. Some of these are referred below, i.e. 1983 Current Law Journal 231 S. Hardayal Singh Mehta and Another Vs. Nirmala Devi and Others, , Ram Lal Vs. Mustafabad Oil and Cotton Ginning Factory and Others, . Each of these judgments are decisions on the facts of its own case, and has no bearing upon the point in controversy. Atma Singh''s case though relates to the grant of permanent injunction against the Defendants. Yet the relief in that case was only granted at the final hearing of the case. Similarly. In Ram Lal''s case, the court considered as to when nuisance caused is actionable. In this case also, the relief was granted at the time of final decision of the case. In Hardial Singh Mehta''s case, relief was granted at the interim injunction for the reason that it was found as a fact that Respondent was running a guest house in the neighbourhood without licence and was using a common staircase. The Plaintiff''s main grievance in this case was that running of guest house causes her a great deal of nuisance and it interferes with her peaceful living and that of her family in the flat. The Plaintiff further 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 case. Not only this, they use filthy and vulgar language and sometime try to enter the Plaintiff''s house since the doors of the Plaintiff and the guest house are facing each other. Keeping in view these facts especially that Respondent had no statutory licence to run such a lodging house restrained him from operating the same. Reference to the report at the local commission appointed by the trial court after the admission of the present revision-petition also does not advance the case of the Petitioner in any manner. Local commission who went at the spot, found that the machines and engine were not in a funning condition at that time. Besides this, he has mainly recorded the readings of the electric motor installed in the property in dispute. In any case, this evidence is yet to be evaluated by the trial court.

Keeping in view the guidelines as given in Dorab Cawasji Warden''s case, I take a middle course and so partly accept this revision-petition, modify the order of the Additional District Judge to the extent that now the Respondent would run the machines only between 10 a.m. to 5p.m. on any working day and would operate the same in a manner so as to cause least noise/nuisance to his neighbours/petitioners. In the meantime, the court would try to dispose of the suit most expeditiously preferably within four months. If need be, the proceedings be conducted on day to day basis, unless the parties desire otherwise. The parties are directed to appear before the trial court on 29.9.1992 No costs.