Bangalore District Court
Ms. Shailaja Yadawad vs Mrs. Aishwarya S on 21 October, 2020
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O.S.No.1664/2017
IN THE COURT OF XLIV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-45)
Dated this the 21st day of October, 2020
PRESENT: Smt.Latha,
XLIV Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.1664/2017
PLAINTIFF : Ms. Shailaja Yadawad
Aged about 51 years,
D/o. Sri. M.R.Yadawad,
R/at. Villa No.18, "Adarsh Vista",
Basavanagar Main Road,
Vibhuthipura,
Bangalore - 560 037.
(By Sri M.N.Balakrishna, Advocate.)
Vs
DEFENDANTS :1. Mrs. Aishwarya S
Aged about 43 years,
W/o. Sri. Vijayanand,
R/at. Villa No.17-A,
"Adarsh Vista",
Basavanagar Main Road,
Vibhutipura,
Bangalore - 560 037.
2. M/s. Adarsh Vista Villa Owners
Association,
(A registered Association),
Represented by its President
Mr. Anand Valavi,
Having address at:
R/at. Villa No.128,
"Adarsh Vista",
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Basavanagar Main Road,
Vibhutipura,
Bangalore - 560 037.
(D.1 By Sri.B.C.Seetharama Rao.
Advocate)
(D.2 present)
Date of Institution of the suit: 06.03.2017
Nature of the suit : Injunction Suit.
Date of recording evidence: 20.07.2017
Date of Judgment : 21.10.2020
Total Duration : Day/s Month/s Year/s
15 07 03
JU D GM E N T
This is a suit filed by the plaintiff against the
defendant No.1 for the relief of permanent injunction
restraining her from conducting music classes in the 'B'
Schedule property in contravention of recitals of sale deed
and clauses of bye-laws of Association and also restraining
her from interfering with plaintiff's peaceful possession and
enjoyment of the suit schedule property.
2. According to the plaintiff, the plaintiff and
defendant No.1 are the owners of 'A' schedule property and
'B' schedule property respectively. They purchased the
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Villas from M/s. Adarsh Developers and Builders. As per
the terms and conditions of the sale deed, purchasers shall
become the members of Association formed by the
Developer. The second defendant is the President of
Association of M/s. Adarsh Vista Villa Owners' Association,
in which, plaintiff and defendant are the members. As per
the bye-laws of the 2nd defendant Association, the
purchasers are not supposed to use the open space for the
purposes other than the purpose for which the said open
space is meant for and the purchasers shall not park
vehicle at a place other than the place provided thereof.
The purchasers shall not carry out any commercial activity
at their respective properties.
3. The plaintiff further contended that the above
being the situation and conditions of sale deeds, the first
defendant in violation of the said condition is doing
commercial activity at her property by running music
classes. The students being young children who attend the
music classes scream, shout and applause in high pitch,
which in turn disturb the peace and tranquility of plaintiff,
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that in spite of request made by the plaintiff, the defendant
No.1 did not stop the commercial activity in her Villa. The
plaintiff has also approached the second defendant, the
second defendant insisted the plaintiff to approach the
court of law. Therefore, without any other option the
plaintiff filed this suit for the relief of permanent injunction
restraining the defendant from interfering with plaintiff's
peaceful possession and enjoyment.
4. The defendant No.1 as a counter, has filed the
written statement. In her written statement she has
specifically admitted the fact of situation of 'A' and 'B'
schedule properties adjacently and also accepted the rules
and regulations contemplated under bye-laws of the
Association.
5. The defendant No.1 has specifically denied the
alleged nuisance and inconvenience that has been caused
by her on account of parking of vehicle etc., that the
defendant No.1 has also denied the noise pollution from
the music classes conducted by her and specifically
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contended that she conducts music classes only on
Sundays that too for few hours in the morning and
evening, that she being a member and disciple of
Chinmaya Mission, conducts Chinmaya Bala Vihar on
every Sunday. That on the said Sundays, children of the
locality join together to practice bhajans, story telling and
other spiritual activities besides music classes. That the
said activities are conducted with the sole intention to
involve the young children to be more cultural and moral
oriented.
6. The defendant No.1 has specifically denied that
her activities do not amount to commercial activities, that
all other allegations in respect of alleged noise and
nuisance are denied her by as false and baseless and she
specifically contended that only to harass her the plaintiff
has filed this suit. Accordingly, the defendant prayed to
dismiss the suit.
7. On the basis of the pleadings, the Predecessor-
in Office of this court had framed the issues as under:
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I SSU E S
1. Whether the plaintiff does prove and
establish that, the 1st defendant runs
commercial activities at plaint schedule
B-Villa property and thereby the 1st
defendant has violated the bye-laws of
2nd defendant-Association?
2. Whether the plaintiff further proves and
establishes that, the alleged commercial
activity of plaintiff has in turn caused
nuisance and inconvenience, which
result in breach of peace and
tranquility to which the plaintiff and her
family members entitled to?
3. Whether the plaintiff is entitled for the
relief of permanent injunction as sought
for by her in her plaint?
4. What Order or Decree?
11. In order to substantiate the contentions of the
plaintiff, she got herself examined as PW.1 and also got 4
documents marked as Ex.P.1 to P.4 and closed her side of
evidence. On the other hand, the defendant No.1 in order
to substantiate her contention, got herself examined as
DW.1 and got 2 documents marked as Ex.D.1 & D.2 and
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closed her side of evidence.
12. Heard arguments. Both counsel for plaintiff
and defendant No.1 filed written arguments.
13. The findings of the Court on the above issues
are:
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
Issue No.4 : As per final order;
for the following:
REASONS
14. Issue Nos.1: It is the specific contention of the
plaintiff that the plaintiff and defendant No.1 are the
owners of 'A' schedule property and 'B' schedule property
respectively. They purchased the Villas from M/s. Adarsh
Developers and Builders. As per the terms and conditions
of the sale deeds, the purchasers shall become the
members of the Developer. The second defendant is the
President of Association of M/s. Adarsh Vista Villa Owners
Association in which, plaintiff and defendant are the
members. As per the bye-laws of the 2nd defendant
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Association, the purchasers are not supposed to use the
open space for the purposes other than the purpose for
which the said open space is meant for and the purchasers
shall not park vehicle at a place other than the place
provided thereof. The purchasers shall not carry out any
commercial activity at their respective properties. The
plaintiff further contended that the above being the
situation and conditions of sale deeds, the first defendant
in violation of the said condition is doing commercial
activity at her property by running music classes.
15. On the other hand, the defendant No.1 being
the owner of 'B' Schedule property has specifically denied
that she is doing commercial activities in her property by
running music classes It is admitted fact that, the plaintiff
and defendant No.1 are residents of M/s. Adarsh Vista
Villa and both the properties are situated adjacent to each
other. While passing on order on I.A.No.I for the relief of
temporary injunction, this court had gone into the
definition of commercial activity as mentioned in the Law
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Lexicon and according to Law Lexicon, the definition of
'Commercial Activity' is "the very concept of any activity
which can justly be called a commercial activity must
imply some investment of capital and the activity must run
the risk of profit or loss" and also observed that none of the
averments of the plaint and those of affidavit do enable this
court to arrive at a conclusion that the activities of
conducting music classes by the first defendant is nothing
but the commercial activity and it is need less to mention
here that the conducting of music classes is neither illicit
nor illegal activity. This court has meticulously gone
through the deposition of PW.1. PW.1 in order to
substantiate her contention got herself examined as PW.1.
In the examination-in-chief she has reiterated the plaint
averments. In the examination-in-chief no where she
mentioned that how she came to know that the defendant
No.1 is running commercial activity in her residence. Only
because the music classes are conducted, it cannot be said
that the said activity is commercial activity. The plaintiff
shall further establish that the defendant No.1 is
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conducting music classes by receiving specified fee from
the children. Only basing on the self-serving statement of
plaintiff, this court cannot come to the conclusion that the
defendant by receiving specific fees from the children is
conducting music classes in her premises. The plaintiff
must have further established by examining independent
witnesses that the defendant No.1 is doing profitable
activity in her residence. The plaintiff would have examined
any one of the parent of the children who are attending
music classes by paying fees to the defendant No.1 or the
plaintiff would have examined any other resident of
Association to establish her contention. Unless and until
there is any independent evidence, only on the basis of the
evidence of PW.1, the court cannot arrive at conclusion
that the defendant No.1 is doing commercial activity in the
'B' Schedule property as contended by the plaintiff in
violation of the bye-laws of second defendant Association.
More over, as per the bye-laws of second defendant
Association, if any condition is violated, it is for the
Association to take steps against the person who violated
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the condition of the bye law of the Association. It is not the
civil court which has to decide whether the conditions of
the bye-laws are violated or not.
16. The plaintiff in her pleadings has pleaded that
when she complained with the defendant No.1 Association,
the Association insisted her to approach the civil court and
according to her there are e-mail conversations between
the parties. But no such emails are produced before the
court. Therefore, it is hard to believe that the plaintiff
complained before the Association prior to filing this suit.
In view of these reasons it is the considered view of this
court that the plaintiff failed to establish that the
defendant No.1 is running commercial activity in 'B'
Schedule property by violating the bye-laws of second
defendant Association. Accordingly, Issue No.1 is answered
in the negative.
17. Issue No.2. The plaintiff in the plaint has also
specifically pleaded that the since the defendant No.1 is
running commercial activity in her property she is causing
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nuisance and inconvenience to her who is residing
adjacent to 'B' Schedule property i.e., in 'A' schedule
property. The plaintiff in her examination-in-chief narrated
the activities of defendant No.1 which is conducted in 'B'
Schedule property. At the same time, PW.1 in her cross-
examination has also admitted that there is 10 feet
distance between 'A' and 'B' Schedule properties and she
has also admitted that there are also other residents in the
said locality. Plaintiff has also admitted that defendant
No.1 is running music classes in her residence. That
means inside the residence of the defendant No.1 the
defendant No.1 is running music classes and admittedly,
the distance between both properties is 10 feet. No where
in the evidence it has come that the other residents
have also complained against defendant No.1 as she is
running music class in her residence. When other
residents have no complaint against defendant No.1 for
conducting the music classes, then how could plaintiff
alone has got inconvenience and nuisance from the
activities conducted by defendant No.1 in her residence.
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The plaintiff ought to have examined any independent
witness to substantiate her contention that the activities
going on in the residence of the defendant No.1 is causing
inconvenience and nuisance to the other residents of
locality. This suit is for the relief of permanent injunction.
Both the parties have adduced evidence in support of their
respective contentions. That means there is oath against
oath. Unless and until a specific allegation is proved with
specific evidence, that allegation cannot be considered as
proved by all preponderance of probabilities.
18. Learned counsel for plaintiff in his written
arguments has relied on the decision rendered by Hon'ble
Supreme Court in Writ Petition(Civil) 72/1998 dated
18.07.2005 which is arising out of Special Leave Petition
No.21851/2003. In the said decision, the Hon'ble
Supreme Court observed the failure of the Government in
regulating the noise pollution in accordance with Noise
Pollution (Regulation and Control) Rules, 2000 created by
the use of loudspeakers for religious purposes. In that
context, the Hon'ble Supreme Court has observed after
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dealing with Article 21 of the Constitution. But here, in
the present suit, it is not the case of the plaintiff that the
defendant No.1 is using loudspeaker or she is running her
music classes outside the premises. Admittedly, the music
classes will be conducted inside the house of defendant
No.1 and no other evidence except the self-serving
statement of PW.1, the the sound of music class is coming
out of the house. Since there is no complaint from other
neighbours, only basing on the evidence of PW.1, it cannot
be said that there is noise pollution in the locality of
plaintiff and defendant No.1 due to the music class
conducted by defendant No.1 and definitely the facts of the
decision relied on the by the learned counsel for the
plaintiff is not applicable to the facts of the present suit.
19. As counter to the decision relied on by the
learned counsel for plaintiff, the counsel for defendant
No.1 has also relied on the decision reported in the case of
Roshan Lan and Others Vs. Banwari Lal and Others
reported in Manupatra MANU/RH/0398/1985, wherein it
is specifically held as under;
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"Case Note: Tort - Nuisance not defined -
Annoyance must be real and of substantial
character disturbing comfort or impairing
enjoyment of property - Plaintiff living in mixed
colony of market and residential houses--
Defendant hammering iron with electric
hammer-Some witnesses complaining
inconvenience and some deny inconvenience
Held, defendant be allowed to use electric
hammering of Iron from 8.00 a.m. to 8.00 p.m."
"Nuisance is incapable of exact definition must,
however, depend on facts and circumstances of
each case. The injuries and annoyance which
warrants relief against the nuisance
complained of must be of a real and substantial
character, disturbing comfort or impairing
enjoyment of property, for slight trivial or
fanciful inconvenience resulting from delicacy
or fastidiousness, no relief can be granted."
In the aforesaid decision, the Hon'ble High Court of
Rajasthan has also relied on the decision reported in 1957
Crl.L.J. Page 404, wherein it is held as under;
"In George Philip v. Subbbammal
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MANU/SC/0017/1956: 1957 CriLJ404, it was
held that in order to constitute an act of
nuisance, there must be interference with the
use or enjoyment of land, or of some right over
or in connection with it, causing damage to the
plaintiff. It was also held that every little
discomfort or inconvenience cannot be brought
on to the category of actionable nuisance. In
that case, the complaint that the factory was
the source of nuisance of the plaintiff's property
was not held proved."
The Hon'ble High Court of Rajasthan, has also relied on the
Textbook on Law of Torts by Anand and Shastri, wherein it
is held at Para No.19 as under;
"Nuisance is a mixed concept, partly subjective
and partly objective. What is a nuisance to one
may not be a nuisance to another and what
again, may appear to be repugnant to one
class, may not be so to another, in short, it is a
relative term depending entirely upon the
environment, taste, habit and the standard of
living of the residents. It is observed by
philosophers that noise is the sign of
civilization. Upon ultimate analysis there must
always be some noise which is the price we
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have to pay for progress. It will accordingly the
impossible to eliminate all noise and smell in a
welfare state and absolute and undisturbed
peace may well be the peace of the grave yard.
The incidence of nuisance, therefore, is to be
projected on a bigger canvas and approached
from broader stand-points, which are but the
concomitants of an industrial age, before one
can arrive at a just and proper determination
thereof. It has truly been observed by Mr.
Justice M.Gardie that "all law must progress or
it must perish in the esteem of man." With the
progress of civilization, the concept of law and
its outer periphery must extend so that it may
keep pace with the mounting needs of society."
In view of the above observations on nuisance, it is the
considered view of this court that unless and until a
specific proof regarding substantial nuisance which is
disturbing the comfort or impairing the enjoyment of the
property, the plaintiff cannot maintain a suit for
prohibitory injunction. The defendant No.1 in her written
statement has also pleaded the motive behind filing this
suit. The defendant had filed a suit in O.S.No.3600/2016
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against the plaintiff for the relief of permanent injunction
when the plaintiff was trying to erect polycarbonate sheets
between 'A' Schedule property and 'B' Schedule property
and as a counter suit, the plaintiff has filed this suit
against defendant No.1. Evidently, the said suit was filed
in the year 2016 and this suit is filed in the year 2017,
though the plaintiff purchased 'A' Schedule property on
14.03.2003. No doubt the plaintiff has also pleaded that
she was residing in the said Villa in the year 2004 and
2005 and thereafter she discontinued to reside there and
from 2012 she is again residing in 'A' Schedule property. If
at all there was any nuisance from the defendant No.1, she
tolerated the same from 2012 to 2017 and all of a sudden
in the year 2017 she filed this suit. If at all there is really a
nuisance from the activities of defendant No.1 in her
residence, the plaintiff would have come before the court at
least in the year 2012-13. But she has not done so, she
has come before the court in the year 2017. Therefore, it is
the considered view of this court that the alleged nuisance
is an imaginary aspect and the cause of action mentioned
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in the suit also is an imaginary cause of action. Therefore,
it is the firm opinion of this court that the plaintiff failed to
establish the alleged nuisance and inconvenience that is
caused by defendant No.1 through independent evidence.
Only on the basis of certain photographs, the plaintiff
cannot prove the said nuisance and inconvenience without
examining any independent witnesses and she failed to
prove her case. Accordingly, Issue No.2 is answered in the
negative.
20. Issue No.3: Since the plaintiff failed to prove
issue Nos.1 and 2, this court is unable to grant any relief
in favour of the plaintiff. It appears, the plaintiff has filed
this suit to take revenge against the defendant No.1 as
defendant No.1 has filed a suit in O.S.3600/2016 against
the plaintiff. The cause of action mentioned in the plaint
also appears to be an imaginary cause of action. In toto,
this suit is a luxurious suit. The plaintiff being a part of
society has to tolerate to some extent the noise pollution
and air pollution. Absolutely, the plaintiff did not make
any ground to get an order of permanent injunction
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against defendant No.1 as prayed for. Accordingly, the suit
of the plaintiff is liable to be dismissed with costs and issue
No.3 is answered in the negative.
21. I ssue No.4: In view of the discussions made
above and findings given on Issue Nos.1 to 3 herein above,
this Court proceed to pass the following ;
ORDER
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, corrected and then pronounced in the open court on this the 21st day of October, 2020).
(Latha) XLIV Addl. City Civil & Sessions Judge, Bengaluru.
A NN E X U R E List of witnesses examined for Plaintiff:
P.W.1 Shailaja Yadawad. 21
O.S.No.1664/2017 List of witnesses examined for Defendant:
D.W.1 S. Aishwarya List of documents marked for the Plaintiff :
Ex.P.1 Sale deed dated 14.02.2003 Ex.P.2 Copy of the Bye-law.
Ex.P.3 Seven Colour Photographs.
Ex.P.4 C.D. List of documents marked for the Defendant :
Ex.D.1 & 2 Photographs.
XLIV Addl. City Civil & Sessions Judge, Bengaluru.