Punjab-Haryana High Court
Sohan Lal vs Surinder And Anr. on 6 January, 1995
Equivalent citations: (1995)109PLR759
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. Plaintiff-petitioner (hereinafter referred to as the 'petitioner') filed a suit in the trial Court with the allegation that he was a tenant in Shop No. 1 situated in Plot No. 22, Industrial Area, Guhla Road, Cheeka; that Smt. Shakuntla mother of Surinder, defendant No. 1 is the owner of that shop as also shop No. 2; that shop No. 2 is in possession of Surinder, defendant No. 1-respondent (hereinafter referred to as 'the respondent'); that the respondent had installed a cotton ginning and 'Rui Pinza' machine which is run with the help of electric motor and diesel engine; that the working of the said machine causes loud noise and vibration and as such is a nuisance to the petitioner. This suit filed was for permanent injunction to restrain the respondent from creating nuisance by running the said machine. Petitioner had further averred in the petition that the respondent had shifted the machine from the godown which is at the back of shops No. 1 and 2 to Shop No. 2 because there is a litigation pending between Shakuntla Devi and the petitioner. Shakuntla Devi had filed an application under the Haryana Urban (Control of Rent and Eviction) Act, 1973 for fixation of fair rent of shop No. 1.
2. Notice of this application was issued to the defendant-respondent. An application under 39 Rules 1 and 2 C.P.C. was also filed for temporary injunction during the pendency of the suit, restraining the respondent from operating the machine. Trial Court appointed a Local Commissioner Shri M.S. Dhillon, Advocate, with a direction to inspect the spot and report whether any nuisance was being caused to the petitioner on account of the running of machine etc. Local Commissioner submitted his report before the Trial Court.
3. Written statement was filed. Allegations made in the suit were controverted in the reply filed. Application filed under Order 39 Rules, 1 and 2, Code of Civil Procedure was taken up. Trial Court granted the temporary injunction prayed for by the petitioner on 15.10.1992. Aggrieved against the aforesaid order, the respondent filed an appeal before the 1st Appellate Court. 1st Appellate Court accepted the appeal and set aside the order of trial Court granting the temporary injunction.
Application filed by the petitioner for temporary injunction was ordered to be dismissed by order dated 18.12.1993. Feeling aggrieved against the aforesaid order, the present revision petition has been filed by the petitioner.
4. I have perused the pleadings of the parties, gone through the report of the Local Commissioner and heard the counsel for the parties.
5. I find no infirmity in the order passed by the lower Appellate Court. Apart from the pleadings which are contradictory to each other, the only document on the record is the report of the Local Commissioner. In his report, the Local Commissioner has stated that "pieces of cotton were scattered outside the shop in question and the adjoining shops." "On running the machine, it created a loud sound and vibrations. It was difficult to talk with each other there due to the disturbance due to noise. The machine will increase its sound if the same was run with the help of diesel engine". The position which the Local Commissioner has explained in his report is while he was standing in the shop of the respondent. Local Commissioner did not examine as what would be the position if he was standing in the shop of petitioner. The position, prima facie, had to be examined from the point of view of the petitioner who had sought the temporary injunction. The Local Commissioner does not further say anything about the nature of sound and the effect of vibrations in the shop of the petitioner. In the absence of any such material on the record, it cannot be held that the sound or the vibrations which the machine installed in the shop of the respondent creates is such a nuisance which would necessitate the passing of interim injunction restraining the respondent from operating the machine.
6. For the reasons stated above, I affirm the order of the 1st Appellate Court and dismiss the revision petition with no order as to costs.