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2011 DIGILAW 1186 (RAJ)

Pawana Khatri v. Dinesh Bhargava

2011-05-31

S.S.KOTHARI

body2011
Hon'ble KOTHARI, J.—The respondent, plaintiff, filed suit against the appellants, defendants for declaration and injunction alleging that Flat No.86/187 on the ground floor in Sector 8, Pratap Nagar Residential Scheme, Jaipur was allotted to him on 29.10.2003. Flat No.86/189 is situated on the first floor of the above plot in which the defendants are residing. Two maps, Annexures-Ka and Kha, show the location and details of the above flats. The defendants lodge complaints against the plaintiff in Rajasthan Housing Board, Municipal Corporation, Jaipur Vidyut Vitran Nigam Ltd. and other departments of the Government regularly without any basis. Rajasthan Housing Board laid underground pipelines for toilets of the flats constructed in HIG Scheme and there is no open drain. The rain water of the flats passes through those underground drains and no resident of the colony has any right to spread dirty water and garbage in the open area. The defendants throw garbage, vegetable peels, plastic bags, bunches of hair, contaminated water, and water that has been used for rinsing clothes, mopping and washing utensils in the open space of Flat No.86/187. The defendants have a pet dog which also spreads its scat in the open space of the aforesaid flat. The defendants have no right to indulge in the aforesaid activities as they spread filth and bad smell as a result of which flies and mosquitoes are generated causing inconvenience and disease to general public and specially to the plaintiff. The defendants own motorcycle, scooter, moped kinetic, cycle and car. They park them in the area marked by words ABCD in the map Annexure-K obstructing the passage while they have open land shown in green colour in map Annexure-K for the purpose. The defendants start their vehicles and excessive use of accelerator causes noise and air pollution. The defendants have not obtained any license for keeping a pet dog. They leave the dog unattended. It barks on passers by and passes urine and stool in the open space. There is a leakage in the toilet of the defendants causing dampness in the walls of the plaintiff. The plaintiff is entitled to get the defendants restrained from indulging in aforesaid illegal activities causing nuisance and harassment to him. 2. The defendants submitted written statement denying plaint allegations and contended that the plaintiff has established hospital in the house against the rules of Rajasthan Housing Board. The plaintiff is entitled to get the defendants restrained from indulging in aforesaid illegal activities causing nuisance and harassment to him. 2. The defendants submitted written statement denying plaint allegations and contended that the plaintiff has established hospital in the house against the rules of Rajasthan Housing Board. The maps, Annexures-Ka and Kha, have not been prepared correctly. The plaintiff has raised a 6 ft. high wall towards east of Flat No.86/187 at place A to B which is against the rules of Housing Board. The plaintiff has also raised illegal construction in the open space between Flat No.86/187, 86/188 in the common open space. Hence, it is incorrect that the plaintiff has not raised any permanent constructions. The balcony, bedroom, drawing room, toilet, kitchen and lawn are in the same condition in which they were constructed by the Housing Board. The defendants have no enmity with the plaintiff and do not intend to cause harassment and inconvenience to him. They lodged complaints against him only regarding illegal and improper constructions raised by him in order to run Zanana Hospital in Flat Nos.86/187, 86/208 and 86/210 against the rules of Housing Board. The plaintiff demolished the wall between Flat Nos.86/187 and 86/208 and opened a gate for using the flat for the stay of patients. He has obtained the electricity connection illegally. On the complaint dated 31.03.2004 filed by the defendant no.1, it was found after enquiry by the Housing Board that the plaintiff has raised illegal constructions in the common place of Flat Nos.86/187, 86/208 and 86/210. The illegal electricity connection still exists in the common place. It is wrong to claim that the underground drains were constructed for discharge of rain water. They were actually constructed for the passage of every kind of water which comes in the flats. The defendants do not throw garbage in the flat of the plaintiff as they are well educated and cultured persons. They have also not thrown garbage, vegetable peels, plastic bags, bunches of hair, contaminated water, and the water used for rinsing clothes, mopping and washing utensils in the open space of Flat No.86/187. In fact, flies and mosquitoes are generated from the contaminated clothes, gauze and bandages which are thrown from the Hospital run by the plaintiff and which remain lying around for days. In fact, flies and mosquitoes are generated from the contaminated clothes, gauze and bandages which are thrown from the Hospital run by the plaintiff and which remain lying around for days. The Housing Commissioner informed the Chief Executive Officer, Nagar Nigam, Jaipur on 18.10.04 that inconvenience and nuisance is being caused to the neighbours from the unauthorized construction in the set back of Flat Nos.86/208 and 86/210. No noise and air pollution is created by the vehicles of the defendants. There is no leakage in the toilet of the defendants causing dampness in the walls of the plaintiff and the suit deserves to be dismissed. 3. On the pleadings of the parties, three issues were framed on 16.05.06. Subsequently, one more issue was framed on 15.07.2010. The plaintiff examined himself and produced Smt. Omna PW-2, Govind Singh PW-3 and Sufa Bhargava PW-4 in his evidence and documents Exts.1 to 29. Both the defendants examined themselves in their evidence and produced documents Exts.A1 to A3. After hearing the parties, the Trial Court decided all the issues in favour of the plaintiff and decreed the suit on 30.09.2010. Aggrieved from the same this appeal has been filed. 4. The appeal was listed for admission arguments. However, the learned counsel for the parties submitted that the record of the case has been received from the learned lower court and very short matter is involved in the appeal, hence it may be finally heard and decided. Having regard to the joint request of the parties, I heard the matter finally at length. 5. The learned counsel for the appellants has submitted that the respondent has created nuisance by raising illegal constructions in common places and by joining many flats for running Zanana Hospital against the rules of the Rajasthan Housing Board. He has further submitted that the refuse of the hospital is thrown in the open space and remains lying there for days creating nuisance and the foul smell causes great inconvenience to the residents. He has also submitted that the appellants are resisting such illegal activities of the respondent by submitting applications to different authorities and in order to put pressure on them, the respondent has filed this suit while they have not committed any illegal activities as mentioned in the plaint. 6. He has also submitted that the appellants are resisting such illegal activities of the respondent by submitting applications to different authorities and in order to put pressure on them, the respondent has filed this suit while they have not committed any illegal activities as mentioned in the plaint. 6. The learned counsel for the respondent has submitted that the appellant creates nuisance, harassment to him, his family and neighbours by their illegal activities including throwing garbage, vegetable peels, plastic bags, bunches of hair, contaminated water, water used for rinsing clothes, mopping and washing utensils in the open space of his Flat No.86/187 which is on the ground floor. He has submitted that the appellants create problems for the respondent by submitting false and baseless complaints to different authorities regularly. His further contention is that the respondent is entitled to get the illegal activities of the appellants restrained so that he can heave a sigh of relief. 7. I have carefully considered the above submissions made by the learned counsel for the appellants and gone through the record. 8. The Trial Court has discussed the entire evidence of the parties for deciding issue nos.1 and 4. From the perusal of the judgment, it appears that the respondent has been able to prove that the appellants cause nuisance by throwing garbage, vegetable peels, plastic bags, bunches of hair, contaminated water, water used for rinsing clothes, mopping and washing utensils in the open space of Flat No.86/187. The appellants have merely denied the allegations. They have not produced any evidence to show that the evidence produced by the respondent is unreliable. A perusal of the file shows that the witnesses of the respondent faced lengthy cross-examination but nothing contrary to their statements could be elicited. In these circumstances, the findings of the Trial Court on issue Nos.1 and 4 are duly supported by the oral as well as documentary evidence produced by the parties. It deserves to be mentioned that the appellants in para no.4 of the written statement mentioned that they are filing counter-claim separately. However, a perusal of the entire written statement goes to show that no counter claim was filed by the appellants. I am fortified in my view from the fact that no issue regarding counter claim has been framed. It deserves to be mentioned that the appellants in para no.4 of the written statement mentioned that they are filing counter-claim separately. However, a perusal of the entire written statement goes to show that no counter claim was filed by the appellants. I am fortified in my view from the fact that no issue regarding counter claim has been framed. The learned Counsel for the appellants has not been able to show and satisfy me about any illegality in the findings of the trial court. 9. From a reading of the pleadings of the parties and statements of witnesses, it clearly emerges that the relations of the parties are strained and they are indulging in making complaints against each other. It has also come in evidence that action was taken against the respondent on some such complaints lodged by appellants. The Trial Court has granted declaration and injunction against the appellants only in respect of throwing garbage, vege-table peels, plastic bags, bunches of hair, contaminated water, water used for rinsing clothes, mopping and washing utensils in the open space of his Flat No.86/187 and from obstructing the passages. There is no order restraining the appellants from pursuing/prosecuting complaints against the respondent. The law also does not entitle any court to restrain a person from seeking legal redress in view of Section 41 of Specific Relief Act, 1963. The appellants are free to take such suitable action regarding illegal activities, if any, of the respondent and the public authorities are expected to take suitable action. 10. From the above discussion, the appeal, being without any substance, stands dismissed at the admission stage itself. The stay application also stands dismissed. Parties to bear their costs.