Delhi District Court
Pushpa Malik vs . Anand Achievers Academy & Ors. on 19 May, 2023
Pushpa Malik Vs. Anand Achievers Academy & Ors.
IN THE COURT OF SH. ABHISHEK KUMAR,
JSCC/ASCJ/GJ (WEST),
TIS HAZARI COURTS, DELHI.
Suit No. 406/2018
Smt. Pushpa Malik
W/o Sh. K.L. Malik
R/o 402, Second Floor
Bhera Enclave, Paschim Vihar
Delhi-110063.
...........Plaintiff
Versus
1. Sh. Anand Achievers Academy
2. Ms. Kanika
3. Ms. Shashi Balal
All Residents of
402, Second Floor
Bhera Enclave, Paschim Vihar
Delhi-110063.
4. The Commissioner
NDMC, Civic Centre
J.L.N. Marg, New Delhi.
...........Defendants
Date of Institution : 04.04.2018
Date of final arguments : 19.05.2023
Date of decision : 19.05.2023
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Pushpa Malik Vs. Anand Achievers Academy & Ors.
JUDGMENT
1. The Plaintiff has filed the present suit for prohibitory & mandatory injunction.
1.1 The plaintiff is seeking prohibitory injunction to restrain defendant no. 1,2 &3 from using the third floor of the property no. 402, third floor, Bhera Enclave, Paschim Vihar, Delhi for coaching centre/commercial use.
1.2. The plaintiff is also seeking mandatory injunction to convert the third floor for residential use and defendant no. 4 be directed to seal or take other appropriate measure to stop the misuse of the property for commercial purposes.
2.0. It is the case of the plaintiff that she had purchased the second floor of the property no. 402, Bhera Enclave, Paschim Vihar, Delhi vide sale deed dated 27.01.2004 and defendants have occupied the third floor in July 2017 and using the same for a coaching centre under the name and style of Shri Anand Achievers Academy and the said centre is being attended by hundred of students by using the common gate, common passage, common stairs and thereby causing a lot of Halla Gulla.
2.1. The plaintiff is a senior citizen suffering from high Page no. 2 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
blood pressure and the said extensive use of the residential property for coaching centre, is causing nuisance to the plaintiff as her ailment is aggravated on this account. Even otherwise property meant for residential purposes cannot be used for commercial purposes.
2.2. The plaintiff had requested the defendants not to use the property for coaching center and defendants assured her that when sessions will be over in March 2018, they would close the centre and use the property for residential purposes. On the assurance of the defendants, the plaintiff did not initiate any legal action. Since the session is over, the defendants started enrolling new students for coaching. Therefore, the plaintiff had sent a legal notice dt. 27.03.2018 to the defendants. Hence, the present suit.
3.0. In the present case, the written statement was filed on behalf of defendant no.3/ Shashi Bala. The defendant no. 3 has admitted that defendant no.2 is the daughter of the defendant no.3 and had jointly purchased the second floor of the property no. 402, Bhera Enclave, Paschim Vihar, Delhi vide sale deed dated 02.05.2017.
3.1 She has denied that the property no. 402, Bhera Enclave, Paschim Vihar is only residential in nature and situated in the residential locality. The defendant no.3 has also averred that the property in question faces a 60 mtr.
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wide and heavy traffic road which falls in mixed land used category as per the Delhi Master Plan 2021 and it is permissible to use the property for professional purposes and coaching classes.
3.2. It is further stated that defendant no.2 got her professional CS firm registered and also a commercial electricity meter was installed and conversion charges were also paid for running the coaching classes. The defendant has denied that hundred of students used common gate and passage and also caused a lot of Hulla Gulla. Also, all the students were well behaved and sincere and always given instructions to the students to move quietly while using the stairs.
4. On the pleadings of the parties, following issues were settled:-
1. Whether the plaintiff has no locus-
standi to file the present suit?OPD-3
2. Whether the plaintiff has not approached the court with clean hands and has suppressed the material facts?
OPD-3
3. Whether the suit is without cause of action and liable to be rejected ?
OPD-3
4. Whether the plaintiff is entitled to a decree of prohibitory and mandatory Page no. 4 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
injunction, as prayed for?OPP
5. Relief.
5. I have carefully heard the submissions made by the parties before me and also gone through the record. The defendants have also relied upon certain judgments i.e. Rafat Ali Vs. Sugni Bai & Ors. (1999) 1 Supreme Court Cases 133, Ram Narain Arora Vs. Asha Rani & Ors.(1999)1 SCC 141, K. Venkatasubbiah Vs. S. G. Ramachandra & Anr. 1170 Indian Law Reports dt. 08.11.1978. Now, I shall give issue-wise findings hereinafter.
ISSUE NO. 1 ,2 & 36. The onus to prove the issue that the plaintiff does not have any locus standi to file the present suit or that the plaintiff has not approached the court with clean hands and have suppressed the material facts or the suit is without cause of action was upon the defendant no.3.
7. The defendants in order to prove the issue has examined herself as DW-1 and relied upon the evidence affidavit which is Ex. DW1/A. The defendants have not elaborated the facts which have been suppressed by the plaintiff. In this regard, it is important to note that the Page no. 5 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
suppression has to be of material facts only and not every fact. Thus, it is found that the defendants could not prove the suppression of material facts which could have dis-entitled the plaintiff from seeking the relief of equity before this court.
8. It is an admitted case that the plaintiff is residing in the same building where the suit property is situated. The evidence of the defendants does not highlight as to how the plaintiff was not having the locus to file the suit. The plaintiff being in occupation of the floor in the suit property, has the right to approach the court if the plaintiff feels aggrieved by the action of anyone by which her civil rights are found to be violated. It is to be seen on merits whether the plaintiff is entitled to the relief or not but one thing is for sure that she had the locus to file the present suit and certainly had the cause of action in her favour as she has alleged violation of her civil rights by categorically mentioning the same in the plaint. Therefore, I am of the opinion that there is nothing to suggest on record as brought by the defendant no.3 to show that the plaintiff did not have the locus or cause of action to file the present suit. Accordingly, the issue no.1, 2 & 3 are decided in favour of the plaintiff and against the defendants.
Page no. 6 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
ISSUE NO. 49. The onus to prove the present issue was upon the plaintiff. The plaintiff in order to prove the issue has examined herself as PW-1 and relied upon the evidence affidavit Ex.PW1/A, wherein she has reiterated the contents of the plaint. The witness also relied upon the documents i.e. copy of sale deed which is Ex.PW1/1 (OSR), two photographs Ex. PW1/2 (Colly.), notice Ex.PW1/3 and postal receipts Ex.PW1/4 (Colly.). The witness was duly cross-examined by the counsel for the defendant.
10. It is the grievance of the plaintiff that the defendants have used the suit property for commercial purposes in a residential building due to which her right to peaceful use and enjoyment of the property has been hampered. The plaintiff was facing nuisance on account of the number of students who were visiting the coaching centre at the suit property and were causing Halla Gulla everyday. The plaintiff being a patient of hight blood pressure, had been suffering due to acts of the defendants.
11. As per the report of MCD dated 05.05.2018, professional activities were permitted at the suit property in a residential plot area as per the MPD, 2021.
Page no. 7 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
Further, running a coaching centre in the residential area/building was permitted as per Rule 15.7 of the MPD, 2021. They also filed the report mentioning that conversion charges were also paid by the defendants.
12. In order to rebut the defence of the defendants and report of the MCD and to prove its case, the plaintiff could not bring on record any document to show that commercial activities like running of a coaching centre was not permissible as per the law. Therefore, it cannot be said that any unlawful activity was being carried by the defendants at the suit property. Accordingly, now, it is to be seen whether nuisance as alleged by the plaintiff is sufficient to seek the relief of injunction from this court.
13. Before proceeding further, it will be essential to discuss the concept of nuisance. The general meaning of the word nuisance means to annoy or hurt. The term nuisance in wider sense is the unlawful interference with a person's use or enjoyment of the land. The nuisance can be of two types i.e. public and private nuisance. The private nuisance protects the interest of the occupier of land or premises in the use and enjoyment of his land. The private nuisance usually occurs where a person by exercising his own right over a property disturbes the right of the other person with Page no. 8 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
respect to his right and usage of the property. Therefore, it is expected that a person shall not use his property in such a way which will cause inconvenience to the others or neighbourers. The present case also pertains to the issue of the private nuisance.
14. As noted above, nuisance is an inconvenience caused to the others but every inconvenience cannot become an actionable tort and the law provides that minor inconveniences have to be endured as those may be inevitable. Therefore, Tort of nuisance has to be understood as an act which gives rise to unlawful or unreasonable annoyance to the plaintiff and causes damage to his property or interfere with his use and enjoyment of the land/property.
15. The report of the MCD has been discussed in the earlier part of the judgment and it is amply clear that the defendants were not doing any illegal act or acting in contravention of the rules. On the other hand, defendant no. 3 has been able to establish that conversion charges for the premises were already paid. Therefore, running of the coaching centre by the defendants have been found to be within the permissible usage as per the MPD, 2021 and the plaintiff could not bring on record anything to the contrary.
Page no. 9 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
16. Plaintiff has alleged that the students who used to visit the coaching centre were creating nuisance and halla gulla while using the stairs. During her cross- examination, the plaintiff stated that she cannot tolerate noise and feels suffocated in closed doors. The plaintiff did not bring any medical documents on record to show her treatment history to establish her point regarding her health. Further, the defendants have relied upon photographs which are Ex. DW1/5(colly.) to show that the property of the plaintiff and the defendant are situated in a commercial and busy area which is on the main road. The counsel for the defendants has argued that the usage of the stairs by the students cannot amount to nuisance and it is over sensitivity of the plaintiff with respect to the sound which emanates from the footsteps. Also, the area is prone to noise due to traffic and commercial activities. Thus, it does not constitute an actionable claim.
17. The plaintiff during the cross-examination also stated that the students were making a lot of noise and were parking scooters, car etc. on the gate and also press the door bells. The plaintiff also stated that she has not counted the number of students who attend the coaching centre but they come during the entire day. The plaintiff stated that there are seven members in her family.
Page no. 10 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
18. In this age of technology, the plaintiff could have brought the photographs on record to show that the students were parking scooters etc. at the common gate and passage or could have made a video to highlight the level of hulla gulla done by the students. The mere usage of the stairs and the noise made therein cannot be enough to make a ground for actionable claim and it has to be more than that. The plaintiff could have examined her family members or other occupants of the building also to establish that they were equally impacted by the usage of the premises for coaching centre by the defendants. The plaintiff has admitted that the ground floor of the building in question was used for commercial purposes and if the plaintiff never faced any inconvenience from the shop which was being run at the ground floor, it is difficult to understand as to how the parking of the scooters by the students caused nuisance to her.
19. The plaintiff has mentioned that the students were coming the entire day but has not lead any evidence to that effect. Further, the noise which was occurring due to the visit of the students was continuing in nature or happened on few occasions is also not mentioned or proved. Merely mentioning the word 'hulla gulla' is not enough to claim the relief of injunction. The plaintiff Page no. 11 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
was expected to bring on record few instances faced by her to explain the level of hulla gulla. As already mentioned, the usage of the premises by the students and the noise which emanates from the usage in the general course and the sensitivity of the plaintiff to such noise would not constitute an actionable claim. In such circumstances, the maxim "De minimis non curat lex"
will come into play which provides that law shall not consider trifle or minimum damage claimed by the plaintiff due to his or her own sensitivity. The plaintiff is found to be sensitive with respect to the usage of the premises by the students of the coaching centre and the resultant noise while accessing the stairs and the common passage which otherwise would have been reasonable as per a prudent man.
20. It is not in dispute that the commercial activity which is being run by the defendant is lawful as the said usage has been recongnized by the MPD, 2021. If the law permits the usage of the property for a particular purpose, any other individual cannot raise objection with respect to the same unless there is clear violation of the legal right of the said individual. The evidence and the facts brought on record by the plaintiff is not sufficient to seek the equitable relief of injunction. The plaintiff has failed to establish the essential requirements of nuisance. Firstly, the plaintiff could not Page no. 12 of 13 Pushpa Malik Vs. Anand Achievers Academy & Ors.
prove that the defendants were doing unlawful activities by running a coaching centre as the same is permissible as per the rules. Secondly, the substantive inconvenience caused to the plaintiff by the defendants is not proved even by applying the standard of preponderance of probabilities as the plaint is bereft of material particulars regarding the hulla gulla as claimed by the plaintiff. Therefore, the plaintiff has failed to prove the issue no. 4 in her favour. Accordingly, the present issue is decided in favour of the defendants and against the plaintiff.
Relief
21. In view of the entire discussion as held above, the suit of the plaintiff is hereby dismissed.
22. Parties to bear the cost of the suit on their own.
23. Decree sheet be prepared accordingly.
24. File be consigned to the Record Room.
ABHISHEK
Pronounced in the open court (Abhishek KUMAR
Kumar)
on 19.05.2023 ASCJ/GJ(WEST)
Delhi Digitally signed
by ABHISHEK
KUMAR
Date: 2023.05.22
16:10:20 +0530
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