Gul. H. Jethani & Anr. vs Smt. Ravinder Kaur & Ors.
1999 Latest Caselaw 733 Del

ORDER

Vikramajit Sen, J.

1. The Plaintiffs have filed a suit for permanent and mandatory injunction, inter alia, praying for orders restraining the Defendants Nos. 1 and 2, their agents and servants from using the ground floor of G-8, N.D.S.C. Part-II, New Delhi for commercial purpose and for running a Bar-Be-Que business in this flat and for further restraint orders against these Defendants from using the Tandoors in any portion of the ground floor flat including kitchen or balcony. Although orders for ceiling of the property being used by the Defendants was also prayed for in the plaint, ad interim orders were confined to the first two reliefs indicated above.

2. A Local Commissioner Ms. Shalini Kumar was appointed on 14.2.1998. In her report she recorded that she found two big tandoors together with some coal and wood being used for lighting the tandoors, in the open verandah. She was further reported that the size of the tandoors was such that prima facie they could not possibly have been used for domestic purposes only. In her view the premises was being used for commercial purposes. It has been further recorded that on questioning, Mrs. Prem Want Singh, Defendant No. 1 had admitted that she had been carrying out commercial activity in the said premises. The Local Commissioner was of the opinion that at the time of her inspection no commercial activity was being carried out in the said premises.

3. Subsequently Mr. Nitin Bhardwaj was appointed as a Local Commissioner pursuant to orders dated 23.10.1998. He has stated that he reached the premises at 7.15 P.M. and carried out the inspection in the presence of the brother of Defendant No. 2 and also took photographs. The Report further states that when the Local Commissioner was coming out of the premises he was threatened and was confined by the son of Defendant No. 2 who demanded the return of the camera reel. He was released only after the SHO, defense Colony, arrived at the spot. Mr. Bhardwaj has further reported that the camera reel was snatched and destroyed by Defendant No. 2. He left only at 10.45 P.M. Objections to the last report have been filed.

4. The application was argued with great vehemence on both sides. Learned counsel appearing for Defendant No. 2 stressed that at the time when the suit was filed it was reported by the Commissioner that no commercial activity was being conducted. The Written Statement itself candidly discloses, learned counsel stressed, that a domestic servant of Defendant No. 2 received orders on the telephone and used to cook and supply food from the Defendants kitchen. The Written Statement clarified that "there was no public dealing and that nobody from the public was to come from placing any order or for taking the delivery and no food at all was to be served to anybody in the premises". The Written Statement further contains statements to the effect that the Defendants had only one Tandoor for their private domestic use and that a second one had been brought only because the first one had cracked and because of frequent complaints and consequent police visits these tandoors were removed. It was strenuously argued that the Plaintiffs are vegetarians and that the reason for filing the suit was that they resented and objected to the cooking of non-vegetarian food in the premises. It was argued that there is no justification for the filing of the suit and that the Plaintiffs had no right to force their own views and practices on the Defendants.

5. At the time of arguments I had put it to the learned counsel for the Defendants that since it was their stand that these premises were no longer being used for commercial purposes, no prejudice would result if the prayers contained in this applications were granted. Learned counsel for the Defendants, however, argued that the concomitants necessary for claiming an injunction, namely: (i) prima facie case; (ii) balance of convenience and (iii) irreparable loss and injury were not present in this case and hence the application should be dismissed.

6. I have adverted above to the reports of the two Local Commissioners for the reason that it is obvious that breach of peace had occurred in the premises on those two occasions and that the police had to be summoned before the inspection could be completed. I do not think it appropriate to say anything more; whether the reports are true or worthy of credibility, is a matter which does not fall be decided at this stage.

7. In my view the Plaintiffs have made out a good prima facie. The contention in the plaint is that commercial activity was being carried out; the Written Statement says that it has been discontinued. It is not the case of the Defendant that he is legally entitled to carry out commercial activity; the area is a residential zone and, therefore, this stand could obviously be adopted. Law cannot countenance illegal user of the premises especially in the manner which causes nuisance to other residents. As stated above the fact that an interim order was strenuously resisted in spite of the Defendants stand that commercial cooking activity has ceased, leads me to the conclusion that this statement, prima facie, is neither bona fide nor correct. In the course of arguments it was disclosed that six flats have been constructed on the plot, one of which on the second floor, is owned and occupied by the Plaintiffs. With the bludgeoning increase of apartments in Delhi mutual consideration and tolerance is an imperative need. I say this keeping in perspective the Defendants vehement submission that the Plaintiffs intention in filing the suit is to stop the preparation of non-vegetarian foods in the premises. If this is so this intolerance of the Plaintiff is also unacceptable. It is clarified that these orders do not prohibit the preparation of non-vegetarian foods for the personal consumption of the Defendants.

8. The balance of convenience is also clearly in favour of the Plaintiffs, in view of the admitted position of the Defendants that the supply/catering of food has been discontinued. This is not accepted by the Plaintiff who was urged that the Defendants are continuing the commercial user.

9. Irreparable loss and injury would also undoubtedly be caused to the Plaintiff if, as it is averred in the plaint which averments I prima facie accept to be well founded, that there is constant preparation of food on a commercial scale. While the Defendants would be within their rights to prepare foods of their choice in their kitchen there is no warrant or justification for regular cooking in the verandah/balcony.

10. I was inclined to allow this application with costs but keeping in perspective that the parties reside in the same premises. I apprehend that it may only exacerbate hostility between them. Tolerance must be exercised by all the parties to the suit. I, therefore, allow the application and restrained Defendants 1 & 2, their agents and servants from using the ground floor of the residential premises bearing No. G-8, Ground Floor, N.D.S.C. Part II, New Delhi for commercial or for cooking or Bar-Be-Que business in any manner. The defendants are further restrained from using the Tandoors in any portion of the ground floor flat in the balcony/verandah of the property in question untill further orders.

11. I.A. is disposed of accordingly.