Bombay High Court
Padma Thakore And Anr vs Dilip Sumanlal Shah And Ors on 12 July, 2016
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1240 OF 2013
WITH
CIVIL APPLICATION NO.1473 OF 2013
1] Padma Thakore ] Deleted as per Court Order
Age 94 yrs. ] Dated 12-1-15 in CA-3/15
]
2] Jigeesha Thakore ]
both residing at E/14, Venus ]
Apartments, R G Thadani Marg ]..... Appellants/Applicants.
Worli, Mumbai 400 018 ] (Orig.Defendant Nos.1 & 2)
versus
1] Dilip Sumanlal Shah ]
]
2] Meena Dilip Shah ]
]
Both Indian Inhabitants, residing ]
at E/10, Venus Apartments, ]
R.G.Thadani Marg, Worli ]
Mumbai 400 018 ]
]
3] Venus CHS Ltd. ]
A CHS incorporated under the ]
provisions of the Maharashtra ]
Co-op. Housing Societies Act, 1960 ]
and having registered office at ].... Respondents
R.G. Thadani Marg, Worli ] (Orig.Plaintiffs and
Mumbai - 400 018 ] Defendant No.3)
Mr. V Y Sanglikar a/w Ms. Vaishali A Ugale for the Appellants/Applicants
Mr. Kalpesh Joshi a/w Ms. Nisha Shah for the Respondent Nos.1 and 2.
CORAM : R. M. SAVANT, J.
Reserved on : 29/06/2016
Pronounced on : 12/07/2016
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JUDGMENT :-
1 Admit. Considering the challenge raised, with the consent of the
learned counsel for the parties, heard forthwith.
2 The above Appeal from Order takes exception to the order dated
27/09/2013 passed by the learned Judge of the City Civil Court, Greater
Bombay by which order the Notice of Motion No.2995 of 2011 filed by the
Respondent Nos.1 and 2 herein i.e. the original Plaintiffs came to be allowed
and made absolute in terms of prayer clause (a).
3 The facts giving raise to the filing of the above Appeal from Order
can in brief be stated thus :-
The Appellants herein are the original Defendant Nos.1 and 2 to
the suit in question. The Appellant No.1 has been deleted as she has expired
during the pendency of the above Appeal from Order. The Respondent Nos,.1
and 2 herein are the original Plaintiffs in the suit in question being S.C.Suit
No.2713 of 2011. The Plaintiffs are more than 70 years of age and the father
of the Plaintiff No.1 is about 96 years old. The said suit has been filed
principally for the relief that the Defendant Nos.1 and 2, their family members,
servants, agents be permanently restrained by an order of injunction from
creating nuisance to the Plaintiffs and other occupants of the building by
feeding the birds with water and grains or such eatables from their balcony or
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any part thereof. In the said suit, by way of prayer clause (b) the Plaintiffs
have sought temporary injunction in the same terms as in the main principal
relief.
The foundation for the aforesaid reliefs has been laid in the
averments which find place in the plaint. It is the case of the Plaintiffs that they
are the occupants of the flat bearing No.E/10 in E-Block of the Respondent
No.3 Society i.e. the original Defendant No.3 to the suit. The building wherein
the Plaintiffs' flat is situated is a 20 storeyed building. The Defendant Nos.1
and 2 are in occupation of flat bearing No.E/14 which is a flat above the
Plaintiffs' flat. The dispute has arisen on account of the erection of a platform
and/or a metal tray installed by the Defendant Nos.1 and 2 outside their
balcony window for feeding grains and water to birds. It is the case of the
Plaintiffs that on account of the said feeding from the metal tray, a large
number of birds frequent the said tray causing nuisance to the Plaintiffs on
account of the bird droppings as well as filth created by birds. It is the case of
the Plaintiffs that the grains fall of from the said tray and fall on the channels
of the sliding window of the Plaintiffs balcony which is just below the balcony
where the said tray is kept. It is the case of the Plaintiffs that the said bird
feeding is started by the Defendant Nos.1 and 2 in the morning at 6.30 am and
done several times in the day till evening. The Plaintiffs in the plaint have
referred to the correspondence that they have entered into with the Defendant
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Nos.1 and 2 as also the steps taken by the Plaintiffs to amicably resolve the
issue. It is also the case of the Plaintiffs that the act of the Defendant Nos.1
and 2 in feeding grains and water to the birds is not only causing nuisance to
the Plaintiffs but also other members of the Defendant No.3 Society. The
Plaintiffs have referred to the complaints made by one Mr. Dilip Jobanputra
residing in flat No.E-11 which is also below the flat of the Defendants. The
Plaintiffs have also referred to the correspondence entered into by the
Defendant Nos.1 and 2 with the Defendant No.3 Society, wherein the
Defendant Nos.1 and 2 admitted to the nuisance caused on account of the said
bird feeding but refused to stop the same and called upon the residents for
neighbourly tolerance and co-operation. The Plaintiffs have also referred to
the letter addressed by the Defendant No.3 Society dated 02/01/2010 to the
Defendant No.1 and 2 requesting them to stop feeding the birds from their
balcony and instead use the public places designated for bird feeding. It is also
the case of the Plaintiffs that the Plaintiff No.2 is suffering from asthama and
skin disease and that on account of the insects which are generated by feeding
of the food grains, the birds droppings on the chajja, the problem of the
Plaintiff No.2 is further aggravated causing rash and itching to the Plaintiff
No.2. The Plaintiffs have thereafter averred that though they tried to amicably
resolve the issue with the Defendant Nos.1 and 2 on account of the obstinate
stand taken by the Defendant Nos.1 and 2, the Plaintiffs had to approach the
police authorities. The Plaintiffs have also referred to the resolution passed by
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the Defendant No.3 Society in its meeting dated 10/04/2010 wherein it was
unanimously resolved that no member shall be allowed to feed birds from their
balconies or windows. The Plaintiffs have averred that though called upon to
do so, the Defendant Nos.1 and 2 have refused to stop the bird feeding. The
Plaintiffs have further averred that they have in order to avoid the nuisance
caused by the Defendants, removed their original chhajja and made new
chhajja with more length and width at the costs of Rs.12,000/-, however in
spite of the same, nuisance on account of the bird feeding continues to the
Plaintiffs. The Plaintiffs have therefore in the suit sought the reliefs which
have been adverted to herein above. The Plaintiffs to the plaint have annexed
the photographs being Exhibit A1, A2 and A3 showing the birds and the
manner in which the nuisance is being caused to the Plaintiffs. The Plaintiffs
have also to the plaint annexed the correspondence between the Plaintiffs and
the Defendant Nos.1 and 2 as also the letter addressed by the Defendant No.3
Society to the Defendant Nos.1 and 2.
4 In the suit in question the Plaintiffs have filed the instant Notice of
Motion and the relief claimed therein is for an injunction restraining the
Defendant Nos.1 and 2 from creating nuisance to the Plaintiffs and other
occupants of the building by feeding the birds with water and grains or such
eatables from their balcony or any part thereof, and for removal of the metal
tray attached to their balcony. In the affidavit in support of the said Notice of
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Motion the Plaintiffs have reiterated their case as set out in the plaint.
5 The Defendant Nos.1 and 2 have filed their affidavit in reply to the
said Notice of Motion. It was the case of the Defendant Nos.1 and 2 that the
Defendant No.2 is an animal welfare activist and the Honorary Secretary of the
All India Animal Welfare Association (AIAWA) since 1998 and runs a
shelter/sterilization centre at Briihanmumbai Mahapalika's Dog Pound situated
at Mahalaxmi Dhobi Ghat and she is also the Managing Trustee of another
Charitable Trust "Vatsalya". It is the case of the Defendant Nos.1 and 2 that the
Plaintiff No.2 has been a regular supplier of medical and surgical equipments
to the said NGO. It is the case of the Defendant Nos.1 and 2 that since the
Plaintiffs are seeking to raise the dispute against the Defendant Nos.1 and 2
and since both the parties are the members of the Defendant No.3 Society, the
jurisdiction of the Civil Court is ousted and the Plaintiffs are required to invoke
the jurisdiction of the Co-operative Court under Section 91 of the Maharashtra
Co-operative Societies Act, 1960. It is the case of the Defendant Nos.1 and 2
that though the Defendant Nos.1 and 2 have been feeding grains and water to
the birds since more than 10 years, there have been no complaints from the
Plaintiffs or any member of the Defendant No.3 Society. It is their case that it
is only in the year 2009 that the Plaintiffs raised this issue only to harass them.
It is the case of the Defendant Nos.1 and 2 that it is not possible for the birds to
be fed on the ground level on account of the fear that the birds may come
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under a car or get caught by some other animals such as cats, dogs, etc. The
Defendant Nos.1 and 2 accepted the fact that the Defendant No.2 feeds farsan
to crows from their kitchen window in the morning at around 9.00 am and at
1.00 pm. It is also accepted by the Defendants that the Defendant No.2 feeds
pigeons with food grains like jowar thrice a day. The Defendants have referred
to some other members like one Shri O D Purohit and Shri Bhatia who are also
feedings grains and water to the birds. It is the case of the Defendant Nos.1
and 2 that they have not created any nuisance or problems or committed any
illegal act by feeding the birds.
6 The Plaintiffs in response to the said affidavit in reply filed by the
Defendant Nos.1 and 2 filed their re-joinder. In so far as opposition of the
Defendant Nos.1 and 2 to the invocation of the jurisdiction of the Civil Court is
concerned, the Plaintiffs contended that they have filed the suit in question to
assert their civil rights on account of the nuisance created by feeding of birds
by the Defendant Nos. 1 and 2. The Plaintiffs reiterated their case that feeding
the birds, apart from causing nuisance, is also causing problems relating to
hygiene.
7 The Trial Court i.e. the learned Judge of the City Civil Court,
Greater Bombay considered the said Notice of Motion and has by the
impugned order dated 27/09/2013 allowed the same in terms of prayer clause
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(a). The gist of the reasoning of the Trial Court whilst allowing the Notice of
Motion is that the act of bird feeding by the Defendant Nos.1 and 2 is not only
causing nuisance to the Plaintiffs but also to the other members of the Society.
In arriving at the said conclusion the learned Judge has inter alia referred to
the photographs produced by the Plaintiffs in substantiation of their case. The
learned Judge has also referred to the correspondence entered into between
the Plaintiffs and the Defendant Nos.1 and 2 as also the letters addressed by
the Defendant No.3 Society to the Defendant Nos.1 and 2. The learned Judge
observed that sum total of the material on record would make it crystal clear
that there is a nuisance to the members of the Society on account of the bird
feeding and that the said bird feeding also creates problems about hygiene.
The learned Judge has observed that if the Defendant No.2 claims to be an
animal welfare activist and the Honorary Secretary of the AIAWA, then it
would be better if she feeds the birds at some other place where no nuisance
would be caused either to the neighbours or the staff or the occupants of E-
Block of the Defendant No.3 Society. The learned Judge has referred to the
situation of the tray and observed that the said tray is exactly above the
balcony window of the Plaintiffs. The learned Judge has observed that there
are large number of birds who are seen flying here and there and some of them
are even sitting on the balcony of the Plaintiffs. The learned Judge has
observed that the Defendant Nos.1 and 2 are unnecessarily causing nuisance to
the Plaintiffs on account of spilling of the water, feeding grains and birds
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droppings and therefore if the Defendant Nos.1 and 2 are not prevented from
doing such act, the nuisance would continue to be caused to the Plaintiffs and
other members of the Defendant No.3 Society and may give rise to health
problems. The learned Judge therefore came to a conclusion that the
injunction is required to be granted in favour of the Plaintiffs as balance of
convenience is also in favour of the Plaintiffs and irreparable loss and
comparative hardship would be caused to the Plaintiffs if the injunction is not
granted and therefore the learned Judge has made the Notice of Motion
absolute in terms of prayer clause (a). As indicated herein above it is the said
order dated 27/09/2013 which is taken exception to by way of the above
Appeal from Order.
8 At this stage it is required to be noted that the Defendant Nos.1
and 2 had raised the issue of jurisdiction by filing an application invoking
Section 9A of the Code of Civil Procedure. The said issue was raised having
regard to Section 91 of the Maharashtra Co-operative Societies Act. The Trial
Court i.e. the learned Judge of the City Civil Court, Greater Bombay had
framed a preliminary issue under Section 9A of the Code of the Civil Procedure
as regards the jurisdiction of the City Civil Court to try the suit in question.
The said issue has been answered against the Defendant Nos.1 and 2, and the
Trial Court has ruled that it has the jurisdiction to try and entertain the suit in
question. The said order passed by the Trial Court is taken exception to by the
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Defendant Nos.1 and 2 by way of Writ Petition No.11960 of 2012. In the said
Writ Petition an order came to be passed by a learned Single Judge of this
Court on 24/06/2013 whereby the learned Single Judge has directed the Trial
Court to decide the application for injunction i.e. the Notice of Motion in
question, however, the ultimate order passed by the Trial Court granting
injunction was not to be implemented until further orders to be passed in the
said Writ Petition. The said Writ Petition again came up for admission before
another learned Single Judge of this Court on 23/06/2014. Since before that
the instant Notice of Motion had been decided by the learned Judge of the Trial
Court, the learned Single Judge has discontinued the condition mentioned in
the order dated 24/06/2013 on the ground that since the above Appeal from
Order has already been preferred challenging the order passed in the Notice of
Motion, there is no point in continuing the condition imposed vide order dated
24/06/2013, as the legality and validity of the order can be gone into in the
above Appeal from Order. That is how the above Appeal from Order is taken up
for consideration.
9 Heard the learned counsel for the parties.
10 SUBMISSIONS ON BEHALF OF THE APPELLANTS BY THE
LEARNED COUNSEL SHRI V Y SANGLIKAR
A] That the suit as filed is not maintainable, as both the Plaintiffs and
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the Defendant Nos. 1 and 2 are the members of the Defendant
No.3 Society and the issue raised in the suit touches the business
of the society and therefore the Plaintiffs ought to have filed a
dispute under Section 91 of the Maharashtra Co-operative
Societies Act.
B] That having regard to the averments in the plaint, the Plaintiffs
are in effect seeking the implementation of the resolution passed
by the Defendant No.3 Society.
C] That there is a delay in filing the suit as the Defendant Nos.1 and
2 are feeding the birds since a long time and the suit is only filed
in the year 2011. Reliance is placed on the judgment of the Apex
Court reported in AIR 2009 SC 2882 in the matter of Kishorsinh
Ratansinh Jadeja v/s. Maruti Corpn. & ors. in support of the
said contention.
D] That the Plaintiffs did not have any grievance as regards the
feeding of the birds, whilst the Plaintiff No.2 was supplying some
instruments to the NGO Vatsalya with which the Defendant No.2
was concerned. Hence the suit filed is malafide and therefore the
conduct of the Plaintiffs is such as to dis-entitle them to the
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discretionary relief of injunction. Reliance is placed on the
judgment of the Apex Court reported in AIR 2008 SC 2291 in the
matter of Mandali Ranganna & ors. v/s T Ramchandra & ors.
E] That the prayer in the Notice of Motion goes beyond the prayer in
the suit and therefore the same ought not to have been granted by
the Trial Court.
F]
That the mandatory relief of removal of the tray could not have
been granted by the Trail Court as no case for grant of the said
relief is made out by the Plaintiffs. Reliance is placed on the
judgment of the Apex Court reported in (2006) 3 SCC 312 in the
matter of Kishor Kumar Khaitan and another v/s. Praveen
Kumar Singh.
G] The Learned Counsel sought to place reliance on a fact sheet
relating to crows, wherein it is stated to the following effect :-
"People can co-exist with urban crows - you
just have to know your wild neighbours",
as also in respect of pigeon dropping, wherein it is stated that
"there is little evidence linking pigeons
directly to human infections.
This was produced in support of the contention that there is
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no nuisance caused on account of bird feeding."
11 SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS.1 AND 2
BY THE LEARNED COUNSEL SHRI KALPESH JOSHI.
i] That on account of the feeding the birds by the Defendant Nos.1
and 2 nuisance is caused to the Plaintiffs, who are residing just
below the Defendant Nos.1 and 2, and as their civil rights being
affected, the Plaintiffs are therefore entitled to file the suit in
question.
ii] In so far as the issue of jurisdiction is concerned, the same can be
gone into in the Writ Petition filed by the Defendant Nos.1 and 2
in this Court, and therefore, this Court need not go into the said
aspect in the above Appeal from Order.
iii] That the relief of removal of the tray from which the birds are fed
is incidental to the relief of injunction sought by the Plaintiffs and
therefore the Plaintiffs are entitled to the said relief.
iv] That the Defendant Nos.1 and 2 are unnecessarily connecting the
supply of some instruments by the Plaintiff No.2 to the NGO
"Vatsalya" with which the Defendant No.2 is concerned with the
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filing of the suit. It was the submission of the learned counsel for
the Respondent Nos.1 and 2 i.e. the original Plaintiffs that there
was no business transaction and that the said NGO was supplied
with some instruments of the value of a few thousand rupees.
v] That there is no delay in filing the suit as only after making all
other efforts to resolve the issue amicably that the Plaintiffs were
constrained to eventually file the suit.
vi] That the material placed on record amply demonstrates the
nuisance caused to the Plaintiffs on account of the feeding of the
birds by the Defendant Nos.1 and 2. The feeding of the birds has
the effect of generating filth, insects and thereby is a health hazard
also to the residents of the "E" block.
vii] The Learned Counsel sought to place reliance on the judgment of
a learned Single Judge of the Punjab and Haryana High Court
reported in AIR 1989 (P and H) 253 in the matter of Darshan
Ram Vs. Nazar Ram in support of his contention that the
Defendant Nos.1 and 2 cannot use their premises for causing
nuisance to the Plaintiffs and other members of the society.
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12 Having heard the learned counsel for the parties, I have
considered the rival contentions.
At the outset it would be necessary to refer to the relief sought in
the suit and the relief sought in the Notice of Motion, the same are reproduced
herein under for the sake of ready reference :-
"Relief sought in the suit :-
(a) That Defendant Nos.1 and 2, their family members,
servants, agents be permanently restrained by an order
and injunction of this Hon'ble Court from creating
nuisance to the Plaintiffs and other occupants of the
Building by feeding the birds with water and grains or
such eatables from their balcony or any part thereof."
"Relief sought in the Notice of Motion.
(a) That pending the hearing and disposal of the
above Suit, Defendant Nos.1 and 2, their family
members, servants, agents be temporarily restrained by
an order and injunction of this Hon'ble Court from
creating nuisance to the Plaintiffs and other occupants
of the building by feeding the birds with water and
grains or such eatables from their balcony or any part
thereof and remove the said metal tray attached to
their balcony."
Hence in the Notice of Motion, apart from the injunction, the Plaintiffs have
sought removal of the feeding tray from the site in question. As indicated
above, it is the case of the Plaintiffs that on account of the feeding of the birds
with grains and water, the Defendant Nos.1 and 2 are causing nuisance to the
Plaintiffs. There is no dispute about the fact that the flat of the Plaintiffs is
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E/10 whereas the flat of the Defendant Nos.1 and 2 is E/14 which flats are one
above the other.
13 In so far as the placement of the tray is concerned, there is no
dispute about the fact that the said tray has been kept by the Defendant Nos. 1
and 2 out of their balcony window by mounting it on iron brackets attached to
their balcony. There is also no dispute about the fact that the Defendant Nos.1
and 2 are feeding the birds two to three times in a day. In support of their
respective assertions both the Plaintiffs and the Defendant Nos.1 and 2 have
produced photographs, the photographs produced by the Plaintiffs are marked
as A to A-2. The photograph A shows the metal tray outside the window of the
Defendant Nos.1 and 2. The second photograph produced by the Plaintiffs
shows the birds are sitting on the balcony of the Defendant Nos.1 and 2 flat.
Last photograph Article A-2 shows the filth generated on account of the birds.
The photographs produced by the Defendant Nos.1 and 2 show the position of
the flats of the Plaintiffs and the Defendant Nos.1 and 2.
14 Now coming to the documents on record. It seems that after the
Plaintiffs complained to the Defendant No.3 Society, the Defendant No.3
addressed a letter dated 24/12/2009 Exhibit C calling upon the Defendant
Nos.1 and 2 to desist from feeding the birds. Thereafter the office staff of the
Defendant No.3 Society has addressed a letter to the Secretary of the Society in
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respect of the fact that there are bird droppings from the flat of the Defendant
Nos.1 and 2 which falls on their body and clothes. Thereafter there is a letter
dated 02/01/2010 addressed by the Defendant No.3 Society to the Defendant
Nos.1 and 2, as also a further letter dated 08/01/2010. The said letters
unequivocally show that the Defendant No.3 Society also called upon the
Defendant Nos.1 and 2 to stop the feeding of birds from their balcony. The
office staff has also written to the Society in respect of the bird droppings. The
aforesaid correspondence therefore discloses that it is therefore not as if it is
only the Plaintiffs who are complaining, but others have also complained. In
fact as indicated above, one Mr. Dilip Jobanputra has also complained to the
Defendant No.3 Society as regards the feeding of the birds by the Defendant
Nos.1 and 2. The documents further demonstrate that after making all efforts
to resolve the dispute amicably that the Plaintiffs had complained to the police
by addressing a letter to the Commissioner of Police and the Senior Inspector
of Police, Worli. The letter addressed by the Defendant No.2 to the Society also
accepts the position that at times water spills or the container falls down but
calls upon the members not to make it an issue and have neighbourly tolerance
and co-operate. Hence implicit in the said letter is the acceptance of the fact
by the Defendant No.2 that there may be some inconvenience that is caused to
the members of the Defendant No.3 Society. A suggestion by the Defendant
No.3 Society to the Defendant No.2 to carry out bird feeding at some other
place has been turned down by the Defendant No.2 on the ground that the bird
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feeding has to be at a height as otherwise same would result in danger to the
birds being run over by the car or being attacked by the cats, dogs etc.
15 Having regard to the documents on record which comprises of the
letters exchanged between the Plaintiffs and the Defendant Nos.1 and 2, the
Plaintiffs and the Defendant No.3 Society, the Defendant No.3 Society and the
Defendant Nos.1 and 2 and the letter addressed by the staff to the Secretary of
the Defendant No.3 as also the letter addressed by Shri Dilip Jobanputra who
is residing in the flat No.E/11, the Trial Court in paragraph 13 of the impugned
order has concluded that it is crystal clear that there is a nuisance from the
feeding of the birds to the members of the Society as also problems to the wife
of the Plaintiff No.1.
16 A look at the photographs produced by the Plaintiffs shows how
the birds mostly pigeons flock together on the tray and some of them can be
seen to be spilling over the adjoining balconies including the balcony of the
Plaintiffs. The grievance of the Plaintiffs that on account of birds, there are
bird droppings and grains also dropped in the balcony of the Plaintiffs, has
substance. It is required to be noted that it is not only the Plaintiffs but also
the office staff of the Defendant No.3 Society who has complained in respect of
the grains falling from the tray and the bird droppings. It would also have to
be presumed that the birds are habituated to being fed from the tray and
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therefore must be flocking there in large numbers. The flocking of the birds
obviously has the effect of generating noise on account of the flapping of their
wings and the humming noise which the pigeons usually make.
17 Now coming to the contentions urged by the learned counsel for
the Appellants i.e. the Defendant Nos.1 and 2. In so far as the issue of
jurisdiction of the Civil Court is concerned, the said issue has been decided
against the Defendant Nos.1 and 2 by the Trial Court. The Defendant Nos.1
and 2 have therefore filed Writ Petition No.11960 of 2012 challenging the
order passed by the Trial Court. It is therefore in the said Writ Petition that the
issue of jurisdiction would be gone into. It is therefore not necessary for this
Court to delve into the said issue.
In so far as the ground of delay is concerned, the Plaintiffs it seems
have come to occupy the flat in question in the year 2001 or there abouts. The
Plaintiffs only after making all other efforts to amicably resolve the issue have
filed the suit in question. Since the feeding of birds is continuing, the suit filed
in the year 2011 cannot be said to be filed belatedly. Assuming that there is
some delay it cannot come in the way of the Plaintiffs as on account of the said
delay no right is created in favour of the Defendant Nos.1 and 2 or any vested
right of the Defendant Nos.1 and 2 is affected on account of the said delay.
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18 Now coming to the contentions urged on behalf of the Defendant
Nos.1 and 2 that the suit filed is malafide as it is only after the business
relations were strained the suit in question came to be filed by the Plaintiffs.
The said stand is taken by the Defendants in the Written Statement. The
Plaintiffs would obviously be dealing with the said case at the hearing of the
suit. However, at the prima facie stage there is no material on record to
indicate that it is on account of strained business relations between the
Defendant No.2 and the Plaintiff No.2 that the suit came to be filed by the
Plaintiffs. The Defendant No.2 has not even mentioned the extent of the
business between the Plaintiff No.2 and the NGO "Vatsalya" with which the
Defendant No.2 is concerned. In juxtaposition the Plaintiffs have place
adequate material on record to demonstrate the nuisance caused to them on
account of bird feeding. In my view, therefore, there is no substance in the
said contention of the Defendant Nos.1 and 2. Hence even applying the
judgment in Mandali Ranganna's case (supra) wherein the Apex Court has
held that apart from consideration of the basic elements, the conduct of the
parties is also a relevant consideration. The conduct of the Plaintiffs in the
instant case cannot be said to be such as dis-entitling them to the discretionary
relief of injunction.
19 In so far as the contention urged by the Defendant Nos.1 and 2
that a mandatory order could not have been issued in respect of removal of
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tray. In my view, it is not as if such a relief cannot be granted. In the instant
case the Plaintiffs have sought an injunction restraining the Defendant Nos.1
and 2 from feeding the birds. Incidental to the said relief would be the relief of
removal of the tray as without removal of the tray, the said relief of temporary
injunction would have no meaning as birds by habit would still flock around
the tray. In my view, the facts of the present case are such that they justify the
grant of the said mandatory order as at the prima facie stage the Trial Court
has come to the conclusion that there is a nuisance on account of feeding of
the birds by the Defendant Nos.1 and 2. The Trial Court was therefore within
its powers to pass an order which would make the grant of temporary
injunction meaningful. Hence the test laid down by the Apex Court in Kishore
Kumar Khaitan's case (supra) on which reliance was placed by the Defendant
No. 2 can be said to be satisfied in the instant case.
20 The Defendant No.2 has justified the feeding of birds on the
ground that she is an animal welfare activist and the Honorary Secretary of
the All India Animal Welfare Association (AIAWA) since 1998 and runs a
shelter/sterilization centre at Briihanmumbai Mahapalika's Dog Pound situated
at Mahalaxmi Dhobi Ghat. Nobody can have a grievance about the love of the
Defendant No.2 for birds and animals. The question is whether she is entitled
to feed the birds by placing a tray below her balcony window so as to cause
nuisance to the other members of the Society in which she is residing.
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Howsoever, much one may want to feed birds and animals, the same would
obviously have to be done in a manner as not to cause nuisance to the
neighbours or other residents. It is well settled that a person cannot use his
premises for causing nuisance to his neighbours or other residents (see
Darshan Ram's case (supra). In the said case, the learned Judge referred to the
famous English case of John Rylands and Jehu Horrocks Vs. Thomas Fletcher
(1868) LR H 330, wherein it was held that the person who, for his own
purpose, brings on his land and collects and keeps there anything likely to do
mischief if it escapes, must keep it in at his peril, and if he does not do so, is
prima faice answerable for all the damage which is the natural consequence of
its escape. In my view, the material produced by the learned counsel for the
Appellants by way of fact sheets in respect of crows and pigeons has no
relevance in so far as the present case is concerned. In the instant case, there is
enough material at the prima facie stage to indicate that on account of bird
feeding nuisance is caused to the Plaintiffs and other members of the Society.
The Trial Court has therefore observed that the Defendant No.2 may feed the
birds at some other place where no nuisance is likely to be caused to anybody.
The Defendant No.2 may consider the said suggestion of the Trial Court.
21 In my view having regard to the well settled principles applicable
to the grant of temporary injunction the order passed by the Trial Court
impugned in the above Appeal from Order does not call for any interference in
lgc 22 of 23
judgment in ao-1240.13-caa-1473.13.sxw
the Appellate Jurisdiction of this Court. The Appeal from Order is accordingly
dismissed. In view of the dismissal of the above Appeal from Order, Civil
Application No.1473 of 2013 does not survive and the same to accordingly
stand disposed of as such.
However, since Writ Petition No.11960 of 2012 which concerns
the jurisdiction of the Trial Court is pending, the operation of the impugned
order granting temporary injunction would be contingent on the result of the
said Writ Petition; meaning thereby that in the event the Writ Petition filed by
the Defendant No.2 is allowed and it is held that the Trial Court does not have
jurisdiction, in that event the injunction granted by the impugned order would
cease to operate.
[R.M.SAVANT, J]
After Pronouncement :-
At this stage the learned counsel appearing on behalf of the
Appellants/Applicants prays for continuation of the ad-interim order dated
29/11/2013. The learned counsel appearing on behalf of the Respondent
Nos.1 and 2 opposes the same. In the facts and circumstances of the present
case, the said ad-interim order dated 29/11/2013, which is in operation, is
continued for a period of four weeks from date.
12/07/2016 [R.M.SAVANT, J]
lgc 23 of 23
