Shanti Devi & Ors vs Rakesh Kumar Singhal & Ors.
2008 Latest Caselaw 2176 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             RFA No.399-403/2006

                                  Reserved on : 11th September, 2008
                              % Date of decision: 5th December, 2008

Shanti Devi & Ors.                                      ...Appellant
                              Through:   Mr. Som Dutt Sharma, Adv.

                     Versus

Rakesh Kumar Singhal & Ors.                           ...Respondent
                   Through:              Mr. B.P. Gupta, Adv.


CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.       Whether Reporters of Local papers may
         be allowed to see the Judgment?

2.       To be referred to the Reporter or not?

3.       Whether the judgment should be
         reported in the Digest?

J.R. MIDHA, J.

1. The appellants have assailed the judgment dated 12 th

December, 2005 passed by the learned Additional District

Judge whereby the suit for permanent and mandatory

injunction filed by the appellants has been dismissed.

2. The appellants and the respondents are cousins being

heirs of two brothers, namely, late Narain Dutt and Late Tara

Chand Singhal. The appellants and the respondents have half

share each in suit property bearing No.327, Prakash Street,

Teliwara, Delhi - 110 006. The appellants are in occupation of

the first floor and half of second floor, whereas the

respondents are in occupation of the ground floor and the

other half of the second floor of the suit property.

3. Respondent No.1 is running the business of tailoring

under the name and style of M/s. Singhal Brothers, Tailors and

Drapers, Gentswear, from the ground floor of the suit

property.

4. The appellants filed a suit for mandatory and permanent

injunction against the respondents seeking mandatory

injunction against the respondents to stop the running of

machines in the suit property and further not to use any part

of the suit property for any purpose other than residence and

for permanent injunction for restraining the respondents from

causing any damage to the suit property or creating any

nuisance or pollution therein.

5. The suit was based on the allegation that respondent

No.1 had installed machinery for the purpose of making

button holes, buttons and overlocks and for preparing coat

collar and cuff-fusing which caused foul smell. It was further

alleged that respondent No.1 has also installed a 'peeco'

machine. It was alleged that the said machines run on

powerful motor which cause vibrations and cracks have

developed in the suit property. The appellants further alleged

that the respondents were using suit property for commercial

and industrial purpose and were causing noise pollution

detrimental to the health of the appellants, especially

appellant No.1 who is old and infirm. It was alleged that the

respondents had employed eight employees who caused air

pollution due to smoking and uncivilized manner of use of the

urinals which created health hazard.

6. The respondents contested the suit on various grounds,

inter alia, that they were using the ground floor of the suit

property for tailoring purpose for the last 15 years before the

filing of the suit without any objection from the appellants.

The respondents stated that they have commercial electricity

connection from DESU. It was alleged that the suit was filed

as a counter blast and in retaliation to another suit bearing

No.2568/1995 filed by the respondents against appellants in

which a status quo order with respect to the easement rights

of the respondents was passed by the Court in respect of 'iron

jall' on the first floor of the suit property.

7. At the trial, appellant No.2, Sushil Singhal, appeared in

the witness box as PW-1 and proved the site plan, Ex.P-6. He

deposed that the respondent installed the machines in

October, 1995 and operates them from 8.00 AM to 10.00 PM

due to which the building had developed cracks. PW-1 proved

the photographs, Ex.P-1, Ex.P-1A, Ex.P-7, Ex.P-8 and Ex.P-9.

He further deposed that appellant No.1 was aged 81 at that

time and was suffering from multiple deceases and was

suffering from noise pollution caused by the running of the

machines. The running of the machines also disturbed the

studies of the children. PW-1 further deposed that employees

of respondent caused noise pollution due to smoke and

uncivilized use of the toilets.

8. The respondent examined four witnesses. Respondent

No.1 appeared in the witness box as DW-1 and proved the site

plan Ex.DW-1/1. DW-1 deposed that the suit property had

been partitioned between the appellants and the respondents

and he proved letter Ex.DW-1/2 written by appellant No.1 to

MCD acknowledging the factum of partition. DW-1 further

deposed that the entire Teliwara area was used for

residential-cum-commercial purposes and he proved the site

plan Ex.DW-1/3 showing commercial activities in the area. He

also gave the numbers of the adjoining properties bearing

No.253, 254, 257 and 264 Prakash Gali, Teliwara area where

business activities were being carried on. He deposed that he

was running a small tailoring unit on the ground floor on two

table mounted machines with ¼ H.P. motor which do not

cause any pollution. There had been no complaint from any

neighbour. The tailoring business was permitted by MCD and

licence fee receipt upto 2002 was proved as Ex.DW-1/4. DW-1

deposed that he was running the tailoring business with ½

KW. commercial connection since 1989 and the same was

assessed to Income Tax since 1989. The Income Tax

assessment order for the Assessment Year 1989-90 was

proved as DW-1/5. He stated that he had only one helper and

the business was run only during permitted hours i.e. 9.30 AM

to 7.30 PM. He proved the order passed in suit No.2568/1995

instituted by him against the appellants as Ex.DW-1/6 in which

there had been a status quo order, in retaliation to which the

appellants had filed the present suit.

9. DW-2 is the neighbour of the parties who deposed that

the respondent No.1 installed only two table mounted

machines running on ¼ H.P. motor and the operation of the

said machines do not cause any nuisance or pollution. He

further deposed that no neighbour ever complained about the

nuisance or pollution or disturbance of any nature and the

entire Teliwara area was used for residential-cum-commercial

purpose.

10. DW-3 is the immediate neighbour running a halwai shop

in the neighbourhood. DW-4 also stays in the neighbourhood

of the parties. Both DW-3 and DW-4 corroborated the

testimony of DW-2.

11. The appellants did not lead any evidence in rebuttal.

12. From the evidence on record of the learned trial court, it

is clear that the suit property is situated in residential-cum-

commercial area. DW-1 has proved the site plan Ex.DW-1/3

showing the commercial activities being carried on in the

area.

13. Respondent No.1 is carrying on the business of tailoring

from the ground floor of the suit property and has installed

two table mounted machines with ¼ HP. motor for stitching of

cloths and making 'kaj' since 1989. Respondent No.1 is also

paying licence fees for running the trade to the Municipal

Corporation, duly proved vide receipt Ex.DW-1/4 dated 23rd

August, 2001. Respondent No.1 is assessed to Income Tax

since 1989 which has been sufficiently proved by the

assessment order Ex.DW.1/5.

14. The respondents are admittedly the lawful owners in

possession of the ground floor of the suit property. The suit

property is located in a residential-cum-commercial area and,

therefore, the respondents are entitled to peaceful carry on

the commercial activities therein. As per the evidence led by

the respondents to which there is no rebuttal, respondent,

No.1 is carrying on tailoring business with the help of two

table mounted machines with ¼ H.P. motor which cannot be

said to cause any vibration sufficient to cause cracks or any

noise pollution. The photographs proved by the appellants do

not prove that the cracks have developed due to the

vibrations from the machines. No neighbour has any

complaint against the respondents. Rather three neighbours

appeared in the witness box and deposed in favour of the

respondents to which there is no rebuttal. No expert evidence

whatsoever has been led by the appellants to prove noise

pollution, magnitude of vibration and the damage to the

property.

15. It also stands proved that the respondents are running

the business since 1989 and the appellants have made false

and incorrect statement on oath that respondent No.1

installed the machines in 1995 with a view to show the

justification of filing the suit in 1997.

16. We agree with the findings of the learned trial court that

no case for mandatory and permanent injunction has been

made out by the appellants. The appellants cannot take away

the right of the respondent to peacefully carry on business

activities in their property.

17. The appeal is wholly misconceived.

18. We dismiss this appeal with costs.

(J.R. MIDHA) JUDGE

(PRADEEP NANDRAJOG) JUDGE 5th December, 2008 Aj/spal