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2018 DIGILAW 1295 (HP)

Vijay Kumar v. Subhkaran

2018-07-13

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Petitioners-Defendants have preferred this petition against the judgment dated 27.11.2017 passed by learned Additional District Judge (III), Kangra at Dharamshala in Civil Miscellaneous Appeal No. 02-D/XIV/2016, whereby on reversal of the order dated 29.09.2015 passed by learned Civil Judge, Dharamshala in an application under Order 39 Rules 1 and 2 CPC, registered as CMA No. 187/2015 has restrained them from running their industry 'Vishu Steel Products' at the present site i.e. village Barol, Post Office, Dari, Tehsil Dharamshala, District Kangra, H.P. 2. Respondent No.1-plaintiff is neighbour of petitioner-defendant. He filed a suit for the decree of permanent prohibitory injunction restraining them from causing any noise/sound pollution and nuisance by running their industry in that area, which according to him is residential. 3. The stand of the petitioner-defendant, however, is that after acquiring the plot adjoining to that of the plaintiff, they raised construction thereon. In the ground floor, shops are situated, whereas, upper floor is being used as residence. They initially were running their industry at M/s Vishu Products, Brij Lal Road, Kotwali Bazar, Dharamshala. The certificate of registration dated 13.02.1986 is Annexure P-12, whereas, the registration of the industry for the purpose of Central Sale Tax of the same date is also part of Annexure P-12. The certificate issued by the General Manager, District Industries Centre, Kangra at Dharamshala is Annexure P-11. As per these documents, the permission to defendants was granted to run the industry at Brij Lal Road, Kotwali Bazar, Dharamshala. In Annexure P-11, there is endorsement dated 18.04.2012, regarding change of site from Kotwali Bazar, Dharamshala to Village Barol, Post Office, Dari, Tehsil Dharamshala, District, Kangra, H.P., the present site. 4. Learned trial Court on appreciation of the pleadings of the parties and also the documents filed along with the plaint and also the written statement has concluded that the respondent-plaintiff is not entitled to the relief of temporary injunction. The application, as such, was dismissed vide order dated 29.09.2015. 5. As pointed out at the out set, learned lower appellate Court has reversed the order passed by learned trial Court and while allowing the appeal has restrained the petitioners-defendants from running their business at the present site. The application, as such, was dismissed vide order dated 29.09.2015. 5. As pointed out at the out set, learned lower appellate Court has reversed the order passed by learned trial Court and while allowing the appeal has restrained the petitioners-defendants from running their business at the present site. This has led in filing this petition on the several grounds, however, mainly that learned lower appellate Court has failed to appreciate the pleadings of the parties and also the legal principles need to be taken into consideration while considering an application under Order 39 Rules 1 and 2 CPC and as a result thereof reversed the order passed by learned trial Court illegally. 6. On hearing learned counsel representing the parties on both sides and also going through the material available on record of this petition, it would not be improper to conclude that learned lower appellate Court has went wrong while allowing the appeal and quashing the order passed by learned trial Court for the reason that respondent-plaintiff has failed to make out a case for grant of ad-interim injunction. The suit has been filed for the decree of permanent prohibitory injunction restraining the petitioners-defendants from creating sound/noise pollution by running their industry at the present site. Admittedly, the parties are neighbour. The permission by the defendants-petitioners under Section 118 of the H.P. Tenancy and Land Reforms Act may have been sought on the ground of raising construction of a residential house. The facts, however, remain that respondents-defendants who were already running their industry under the name and style of M/s Vishu Steel Products at Brij Lal Road, Kotwali Bazaar, Dharamshala after obtaining the permission from the District Industries Centre and also all clearances from the Department of Excise and Taxation under Central Sales Tax (registration and turnover) Rule 1957 was later on shifted to the present site. The intimation to this effect was given to the department of Industries. An endorsement to this effect dated 18.04.2012 under the seal and signature of General Manager, District Industries Centre, Dharamshala District Kangra is there on the registration certificate Annexure P11. Not only this but the order, Annexure P-13, whereby electricity connection was also sanctioned by the Himachal Pradesh State Electricity Board for running the industry by the respondents-defendants at the present site also primafacie substantiate their claim. Not only this but the order, Annexure P-13, whereby electricity connection was also sanctioned by the Himachal Pradesh State Electricity Board for running the industry by the respondents-defendants at the present site also primafacie substantiate their claim. Therefore, irrespective of the permission to purchase the land under Section 118 of the Act has been granted for raising construction of residential building. The documentary evidence discussed hereinabove prima-facie reveals that the petitioners-defendants were permitted to shift their business to the present site by the department of industries. Otherwise also, in case there is some ambiguity or such permission has been granted in violation of the Rules, the same has to be gone into during the course of trial of the suit. At the stage of consideration of an application under Order 39 Rules 1 and 2 CPC, it is only to be seen as to whether there exists a prima-facie case or balance of convenience lies in favour of the plaintiff and that a comparative mischief likely to be caused in case such relief is granted, it would be higher to the defendants as compared to the plaintiff. It is again well settled that the main relief should not be granted by way of interim relief because to do so amounts to decree the suit well before its trial. 7. In view of the documentary evidence taken note of in para supra, the plaintiff has failed to make out a prima-facie case for grant of ad-interim injunction. On the other hand, the comparative mischief as is likely to be caused by way of impugned judgment shall be greater to the defendants-respondents as compared to the plaintiff for the reason that in case the industry by way of adinterim injunction is ordered to be closed, that too, during the pendency of the suit, they will be deprived of their livelihood. The balance of convenience and equity leans in their favour and not in favour of the plaintiffs. Being so, the impugned judgment being not legally sustainable is quashed and set aside and the order passed by learned trial Court is upheld. 8. The appeal is accordingly allowed and stands disposed of. Pending applications, if any, shall also stand disposed of. Before parting, the trial Court is directed to decide the suit at the earliest, preferably within six months from today. 8. The appeal is accordingly allowed and stands disposed of. Pending applications, if any, shall also stand disposed of. Before parting, the trial Court is directed to decide the suit at the earliest, preferably within six months from today. Parties on both sides also to render all assistance to the trial Court in deciding the suit.