Sri Mahalingam vs The Medical Officer Of Health
2022 Latest Caselaw 7460 Kant

                               -1-



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 25TH DAY OF MAY, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.3495/2016 (CPC)

BETWEEN:

SRI. MAHALINGAM
S/O LATE PERIYAPPA
AGED ABOUT 46 YEARS
R/A NO.18, GATTIGERE EXTENSION
BEML LAYOUT
RAJARAJESHWARINAGAR
BANGALORE - 560 098.
                                       ... APPELLANT
(BY SRI. M ASWATHANARAYANA REDDY, ADVOCATE)

AND:

1.     THE MEDICAL OFFICER OF HEALTH
       RAJARAJESHWARINAGAR RANGE
       BBMP, BANGALORE - 560 098.

2.     MR. CHANDRAPPA
       HINDU MAJOR
       NO.16, KALPATARU
       GATTIGERE EXTENSION
       BEML LAYOUT
       RAJARAJESHWARINAGAR
       BANGALORE - 560 098.


                                           ... RESPONDENTS
(BY SRI. UMESH B.N, ADVOCATE FOR R2;
    R1 SERVED)
                                 -2-



      THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST
THE   ORDER    DATED    26.04.2016   PASSED   ON    IA   NO.2   IN
O.S.NO.6259/15 ON THE FILE OF THE 9TH ADDITIONAL CITY CIVIL
& SESSIONS JUDGE, BENGALURU, DISMISSING THE IA NO.2 FILED
U/O.39 RULE 1&2 R/W SEC.151 OF CPC.

      THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

The appellant is the plaintiff in O.S.No.6259/2015 on

the file of the IX Additional City Civil and Sessions Judge,

Bengaluru (for short, 'the civil Court'). The appellant has

impugned the civil Court's order dated 26.04.2016, and the

civil Court by this order has rejected the petitioner's

application (I.A.No.2) filed under Order XXXIX Rule 1 and 2

read with Section 151 of the Code of Civil Procedure, 1908

(for short, 'CPC').

2. The appellant is the absolute owner of the

property bearing No.182 (new No.18) of Gattigere

Extension, BEML Layout, Rajarajeswarinagar, Bengaluru-

560098 (the subject property) and he admittedly, operates a

power loom in the subject property. The first respondent,

at the instance of the second respondent [the owner of one

of the properties in the immediate vicinity] has issued an

endorsement asking the appellant to cease operating the

power loom lest he is forced to take coercive measures. The

appellant, relying upon these circumstances as cause of

action, has filed the suit in O.S.No.6259/2015 for

permanent injunction against the respondents. The civil

Court has rejected the appellant's application for temporary

injunction primarily on the ground that the appellant, who

had obtained licence for running power loom in the suit

schedule property, had not obtained renewal of licence after

31.03.2016.

3. Sri. M.Ashwathanarayana Reddy, learned

counsel for the appellant, submits that the appellant had

availed only 3 HP + 240W power for the purpose of running

power loom and in that event, he was not required to obtain

any licence, but the appellant, who has been running

power loom for a number of years, had obtained licence

from the competent authority. The licence has been

renewed from time to time regularly and even as of the date

of the suit the licence was renewed. However, for the

reasons beyond control, the appellant could not place the

documents before the civil Court to establish that the

licence was renewed even as of 31.03.2016. Presently, the

necessary endorsements, as available on the website of the

BBMP (the competent authority), are produced as

additional documents along with an application under

Order XLI Rule 5 of CPC. The appellant has continued to

obtain timely renewal and there is renewal even for the year

ending 31.03.2022.

4. Sri. Umesh B.N., learned counsel for the

respondents does not controvert these submissions and the

application for producing additional document is also not

contested. Sri. Umesh B.N, submits that the defendants

are justified in objecting to the appellant running a power

loom in the subject property because of the noise pollution

as per the guidelines issued by the Karnataka State

Pollution Control Board; the noise level for the power loom

in a residential layout cannot be above 58 decibels during

day time.

5. The rival submissions are considered and the

impugned order perused. If the appellant, who had

obtained licence for operating a power loom in a residential

layout, could not produce document to show that this

licence was renewed even as of the date of the suit, the

reason for refusal of the injunction, this Court is of the

considered view that the impugned order cannot be

sustained. The appellant has prima facie established that

he is duly licenced to operate a power loom in the subject

property, and such licence is renewed. As such, the

appellant must succeed. This Court must also observe that

this order cannot preclude any cause of action that may be

available to the second respondent in the event he can

establish that there is violation of the guidelines issued by

the competent authority insofar as the noise that is

generated by the appellant operating power loom in the

subject property. Hence, the following:

ORDER

[a] The appeal is allowed, and the impugned order

dated 26.04.2016 in O.S.No.6259/2015 on the file of the IX

Additional City Civil and Sessions Judge, Bengaluru is

modified restraining the respondents - defendants from

interfering with the appellant operating his power loom in

the suit schedule property.

[b] If the second respondent can demonstrate that

there is noise pollution or violation of any guidelines issued

by the competent authority or the licence is not renewed for

any time during the pendency of the suit, the second

respondent shall be at liberty to make necessary

application for the interim order, and the application in

that regard shall be filed only before the trial Court.

SD/-

JUDGE

RB