Laxman C. Bhatia vs S.P. Sinha
1998 Latest Caselaw 318 Del

JUDGMENT

Manmohan Sarin, J.

1. The petitioner is the owner of flat No. B-26, Press Enclave,Saket,New Delhi, while respondent No.1 is the owner of flat No.B-23, Press Enclave, New Delhi. The petitioner's flat is on the first floor directly over the flat of the respondent No.1.

2. The petitioner had fixed a water cooler in the window of his room, supported with angle iron frame. The respondent No. 1 found this to be totally unpalatable and a source of nuisance. Respondent No.1 filed a suit for permanent and mandatory injunction, alleging that the cooler was installed directly over the entrance of his flat and the dripping water was a constant source of nuisance. Respondent No.1 sought mandatory injunction against the petitioner for removal of water cooler and a restraint from creating any nuisance by fixing of water cooler or any other thing on top of the entrance of his flat. Damages were also sought. Respondent No.1 also claimed that there was threat and possibility of cooler falling over members of his family and visitors to his flat.

3. The petitioner filed his written statement, in which he denied the allegations made and claimed, that the cooler had been installed at the place and space in the flat as per the architectural design of the complex. It was denied that there was dripping water from the cooler. It was claimed that the cooler has been mounted on a permanent bracket of angle iron and is well fixed and secured.

4. Respondent No. 2 is the "Press Association Co-operative Govt. Housing Society Limited", which is the co-operative society managing the said flats. The respondent No.2/Society filed a written statement supporting the petitioner. It claimed that the cooler had been fixed at the space provided in the architectural design of the complex and coolers were similarly installed by other flat owners namely Flat Nos.D-31, D-46 and A-26. The Society claimed that it had taken all precautions and necessary steps in ensuring the safety and proper protection of the cooler.

5. The learned Civil Judge, vide his order dated 25.4.1995, declined the injunction, holding that the cooler had been fixed at the space provided in architectural design of the flat/complex. Further interim relief could not be granted to respondent No.1, without proving the merits of the case and the alleged nuisance. In view of the fact that an undertaking had been taken from the petitioner, by the respondent No.2/Society, with regard to the cooler being safely fixed and for ensuring non-dropping of the water, the learned Civil Judge held that a prima facie case was not made out. The respondent No. 1 dis-satisfied with the order of the learned Civil Judge, filed an appeal before the Senior Civil Judge, who differed from the learned Civil Judge and accepted the appeal. The learned Senior Civil Judge held that based on the photographs filed that water was dropping from the cooler at the entrance of the respondent No.1, which would be a constant nuisance to his family members and visitors. The Senior Civil Judge also held that the learned Civil Judge had not considered the possibility of threat and possibility of the cooler falling. He held that even if the cooler had been installed as per the architectural design, it did not give a right to the petitioner to cause a nuisance to others. He further held the balance of convenience to be in favour of the respondent No.1. and considering that there was then no need to instal the cooler, in winter season, he directed the petitioner to remove the cooler from the place in question and install it on the side wall of his flat. The petitioner, in these circumstances,filed the revision petition.

6. This Court on an application moved by the petitioner, appointed a Local Commissioner, vide order dated 9.4.96, to report about the existing location of the cooler and also as to how other flat owners had managed to fix their coolers. Thereafter, the respondent No.1 also sought to bring on record the case of a cooler, that had been fallen down in the same building/complex. The Local Commissioner after inspection, has filed his report together with the photographs taken. The Local Commissioner found that at least in two flats apart from that of the petitioner, out of ten similar flats, coolers had been installed in similar fashion. The Local Commissioner also reported that a tray had been fixed underneath the cooler with a pipe/tube so as to drain out the water from the cooler. The tube/pipe through another window at a lower level drains out the water from the cooler in another room of the petitioner. As a result of practical demonstration. it was found that water was not dropping from the cooler was being get drained out through the tube/pipe into the bed room of the petitioner himself. In view of this arrangement, the question of nuisance being created for the respondent No.1 would not survive. It has also come on record that in two similar cases, coolers had been similarly fixed/installed. Respondent No.1 in his last ditch efforts, filed a certificate from a private Architect to the effect that the cooler had been placed on a projected iron frame and does not form part of monolithic structure of the building, in which the cooler could have been kept on the R.C.C. slab made for the purpose. There is no denying that a R.C.C. slab in such a situation would ensure greater safety and obviate altogether the possibility of any accident. However, fixing of coolers and air conditioners on the upper floors, supported by iron angles is quite common. In the instant case, the respondent No.2/Society had submitted that as per the architectural design, the place at which the cooler is fixed is the proper place. Secondly, it has confirmed that the cooler is properly fixed and all the precautions have been taken.

7. Learned Counsel for the petitioner had also undertaken on instructions from the petitioner, who was present in Court, that petitioner would ensure that in case the iron frame of the cooler is rusted or weak, he will have the same replaced at his own cost.

8. Considering that the very basis, on which the learned Senior Civil Judge had passed the impugned order, namely the constant nuisance because of the water dripping at the entrance is no longer in existence, in view of the installation of the tray and as confirmed by practical demonstration in the report of the Local Commissioner, the impugned order deserves to be recalled and set aside. Moreover, in view of the position of the respondent No.2/Society that the cooler has been properly fixed with safety precautions taken as well as undertaking recorded by the petitioner that he would have the iron angle frame removed, if the same is found to be rusted or weak, the concern of the respondent for safety has also been addressed. Accordingly, the impugned order of the learned Senior Civil Judge, dated 18.9.1995, is set aside.

The revision petition is allowed in the above terms.