Delhi District Court
Shri Arvind Kumar Tyagi vs Shri Mohit Parashar on 25 April, 2023
IN THE COURT OF ADDITIONAL SENIOR CIVIL
JUDGE (SHAHDARA) KARKARDOOMA COURTS,
DELHI.
Presided by: Mr. Himanshu Raman Singh
MCA SCJ No. 11/2022
Shri Arvind Kumar Tyagi
Son of Shri B. K. Tyagi
Resident of 28/2/20/4A
Krishna Bhawan, 2nd Floor,
Gautam Gali, Jwala Nagar,
Shahdara, Delhi-110032. ...... Appellant
Versus
1. Shri Mohit Parashar
C/o Shri Durga Mandir
Street No. 4, Jwala Nagar,
Shahdara, Delhi-110032
2. Shri Rahul Gupta
S/o Shri Durga Mandir
Street No. 4, Jwala Nagar,
Shahdara, Delhi-110032.
3. Shri Babloo Porwal
C/o Shri Durga Mandir
Street No. 4, Jwala Nagar,
Shahdara, Delhi-110032. ...... Respondents
APPEAL UNDER ORDER 41(1) OF CPC
Date of Filing : 04.11.2017
Date of Judgment : 25.04.2023.
Decision : Allowed.
MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 1 of 13
JUDGMENT
1. This is an appeal under Order 41(1) of C.P.C. on behalf of the appellant/plaintiff for setting aside the impugned order dated 24.09.2022 passed by Shri Aman Kumar Sharma, Learned Civil Judge-02, Shahdara, Karkardooma Courts, Delhi- 110032 whereby the Learned Trial Court dismissed the application under Order 39 Rule 1 and 2 CPC of the plaintiff.
2. The brief facts as narrated by appellant/plaintiff are as under:
2.1. It is stated by the appellant/plaintiff that the appellant filed the suit for mandatory injunction before the learned Trial Court vide Civil Suit No. 715/2022 on the following grounds:-
(i) The appellant is the Chairman of New Vidhya Kunj Public School situated at 162, Gali No. 4, Jwala Nagar, Shahdara, Delhi-110032.
(ii) Shri Durga Mandir is situated adjacent to the New Vidhya Kunj Public School whose priest is the respondent no.1 and the respondent nos. 2 and 3 are also working in the said temple. In this temple, loud speakers are used in high volume defying the orders of the Hon'ble Supreme Court.MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 2 of 13
(iii) On 04.04.2022 at around 10:00 a.m., the loudspeakers was in high volume in the said temple, due to which the children of the school were upset. The appellant requested the respondents to turn off the loudspeaker but the respondents did not pay any heed. The respondent no. 1 called his friends i.e. respondent no. 2 and 3. They brought there acquaintances along with them. The respondent nos. 3 told that this loud speaker will run like this in full volume and they do not believe in the court etc. The respondent no. 2 also reiterated the same point and threatened the appellant/plaintiff. The appellant finding himself surrounded, the called PCR on 112 number and PCR Van reached there and the policeman saved the appellant from the crowd and sent him to the police station.
(iv) In the premises of police station, ASI Shri Praveen also explained in the police station that the use of loudspeakers is prohibited. At his behest, the respondents promised that they would not use the loudspeakers. Thereafter, on the next date i.e. 05.04.2022, loudspeakers were used in the school hours from 10:00 a.m. to 12:00 p.m. On being reminded of the promise of yesterday, the respondent repeated the same thing as the previous day and said that they would stop running the school and will make it difficult for the teachers and children to leave the street.
(v) Thereafter, the appellant gave a written complaint to SHO Police Station Vivek Vihar on 06.04.2022 and copies of the MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 3 of 13 said complaint were also given to the Commissioner of Police, Police Headquarter, Jai Singh Road, Parliament Street, New Delhi- 11001 and DCP District Shahdara, 469, Peela Madir, Shalimar Park, Shahdara, Delhi-110032 against the above said act and conduct of the respondents bu the above said authorities did not take any action against the respondents.
(vi) Thereafter, on 16.04.2022, the appellant served a legal notice to the respondents for stopping their illegal activities to play the loud speaker in full volume in the school time but despite the receipt of the legal notice, the respondents did not comply with the said legal notice neither replied to the same.
(vii) The appellant also filed complaint case under Section 200 Cr.P.C. read with Section 156(3) Cr.P.C. against the respondents, which is still pending before the Learned Metropolitan Magistrate, District Shahdara, Karkardooma Courts and was fixed for 09.01.2023. Thereafter, the learned Trial Court put the matter for arguments on the application under Order 39 Rule 1 and 2 CPC for 24.09.2022.
(viii) Despite the instructions of the concerned police officials, the respondents are not stopping their illegal activities, which may cause harm to the education of the children.
MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 4 of 133. It is further stated by the appellant that the Learned Trial Court issued the summons to the respondents for putting their appearance in the present suit and after receipt of the summons the defendants filed their written statement before this Court, which was based on totally false and frivolous facts.
4. On 24.09.2022, arguments were heard by the learned Trial Court and it dismissed the application under Order 39 Rule 1 and 2 CPC in an illegal and arbitrary manner against the appellant. Being aggrieved with the impugned order dated 24.09.2022, the appellant filed the present appeal on the following grounds:-
(a) The learned Trial Court has not applied his judicial mind in passing the impugned order dated 24.09.2022.
(b) The Trial court has failed to appreciate the fact that the respondents have filed the Written Statement on the basis of false and frivolous grounds and without any basis.
(c) The Trial Court has filed to appreciate the fact that the respondents are misguiding this Court for achieving their ulterior motives.
(d) The Trial Court has failed to appreciate the fact that while admitting the case the learned Trial Court has not asked about MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 5 of 13 any documentary evidence showing the plaintiff as Chairman of the school. Further, all the defendants had nowhere challenged the chairmanship of the plaintiff. The Chairman is the Apex Person of a School.
(e) The Learned Trial Court did not appreciate the fact that the plaintiff has complained several times to the police/SDM/DM to get remedy under Rule and of Noise Police act and the Police complaints of the plaintiff and PCR Call details are of school timing but when the plaintiff did not get any relief. Then the plaintiff approached the Hon'ble Court.
(f) The Learned Trial Court did not appreciate the fact that the plaintiff has already submitted the Pen Drive showing the nuisance created by the loudspeaker at temple so no question about reasonability of nuisance.
(g) The Learned Trial Court did not appreciate the fact that the recognition certificate of the school is itself illustrated that the school is recognized and falls under silence zone. The defendants has nowhere opposed the proximity of the school and temple.
(h) The Learned Trial Court did not appreciate the fact that in upcoming festive season necessary directions be given to the MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 6 of 13 respondents to not use loudspeakers during school hours i.e. 07:30 a.m. to 02:00 p.m.
(i) The Learned Trial Court did not consider the fact that the appellant is the Hon'ble Chairman of New Vidhya Kunj Public School situated at 162, Gali No. 4, Jwala Nagar, ,Shahdara, Delhi-110032.
(j) The Learned Trial Court did not consider the fact that in this temple, the loudspeakers are used in high volume defying the orders of the Supreme Court.
(k) The Learned Trial Court did not consider the fact that on 04.04.2022 at around 10:00 am, the loudspeakers were being used in high volume in the said temple, due to this reason the children of the school were upset.
(l) The Learned Trial Court did not consider the fact that the appellant requested the respondents to turn off the loudspeaker but the respondents did not pay any heed. The respondent no. 1 called his friends i.e. the respondent no. 2 and 3 and they brought their acquaintances alongwith them. The respondent no. 3 told that this loudspeaker will run like this in full volume, they don't believe in court etc. MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 7 of 13
(m) The Learned Trial Court did not consider the fact that in the premises of police station ASI Shri Praveen also explained tin the police station that the use of loudspeakers is prohibited. At his behest, the respondents came promising not to use loudspeakers.
(n) The Learned Trial Court did not consider the fact that on 05.04.2022, loudspeakers were used in the school hours from 10:00 a.m. to 12:00 p.m. On being reminded of the promise the respondent repeated the same thing as the previous day and said that they would stop running your school and will make it difficult for your teachers and children to leave the street.
(o) The Learned Trial Court did not consider the fact that a written complaint to SHO Police Station Vivek Vihar on 06.04.2022 and copies of the said complaint were also given to the Commissioner of Police, Police Headquarter, Jai Singh Road, Parliament Street, New Delhi- 11001 and DCP District Shahdara, 469, Peela Madir, Shalimar Park, Shahdara, Delhi-110032 against the above said act and conduct of the respondents bu the above said authorities did not take any action against the respondents.
(p) The Learned Trial Court did not consider the fact on 16.04.2022, the appellant served a legal notice to the respondents for stopping their illegal activities to pay the loud speaker in full MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 8 of 13 volume in the school time but despite the receipt of the legal notice, the respondents did not comply with the said legal notice neither replied to the same.
(q) The Learned Trial Court did not consider the fact appellant filed also filed complaint case under Section 200 Cr.P.C. read with Section 156(3) Cr.P.C. against the respondents, which is still pending before the Learned Metropolitan Magistrate, District Shahdara, Karkardooma Courts and was fixed for 09.01.2023.
(r) The Learned Trial Court did not consider the fact despite the instructions of the concerned police officials, the respondents are not stopping their illegal activities, which may cause harm to the education of the children.
(s) The Learned Trial Court did not consider the fact as per the judgment of the Hon'ble Supreme Court of India, in case of Prevention of Environment & Sound Pollution Vs. Union of India & Anr. CA 3735 of 2000 wherein the Hon'ble Apex Court while interpreting the provisions of Noise Pollution (Regulation and Control) Rules, 20000 held that a loudspeaker or public address system shall not be used except after obtaining written permission from the authority.
MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 9 of 13(t) The impugned order is totally bad in the eyes of law and against the principles of natural justice.
(u) The judgment impugned herein otherwise not sustainable in law and deserves to be set aside.
5. Per contra, it has been contended on behalf of the respondents that the impugned order is well-reasoned order passed on the basis of material available on record. It has been submitted that it suffers from no illegality or infirmity and accordingly, does not deserve any interference by this Court.
6. Arguments have been heard on behalf of the parties and record has been carefully perused.
7. It is admitted fact that the school run by the plaintiff is a recognized school for which the plaintiff has placed on record the relevant documents. The learned counsel for the plaintiff has placed reliance upon the notification passed by the Delhi Government on 22.11.2019 which is F.No DPCC/(10)(10/Leg 18/Vol -1/2019/6159 which deals with noise pollution.
8. Learned counsel for the appellant has also submitted that the Government of Delhi has notified area of 100 meters around the hospital and educational institutions with 1000 students and more as silence areas/zones and admittedly, the MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 10 of 13 school in the present case is adjacent to the temple run by the respondents. For proving that the school is having more than 1000 students, appellant has placed on record the relevant certificate. Therefore, it is not in question that the school is having less than 1000 students. Further, the plaintiff/appellant has also placed on record, the Compact Disk showing the noise pollution cause by the respondents.
9. The principles regarding grant of interim injunction have been reiterated in plethora of judgments. The Apex Court in Dalpat Kumar & Anr. vs. Prahlad Singh & Ors. (1992) 1 SCC 719 has held that the court may grant interim injunction in favour of the plaintiff upon being satisfied that:
(1) There is a serious disputed question to be tried in the suit and on the facts before the court, there is a probability of his being entitled to the relief asked for by the plaintiff/defendant;
(2) The court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) That the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 11 of 13
10. Therefore, the burden is on plaintiff to make out a prima facie case in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy itself that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages.
11. The ld Trial Court has not considered these principles in letter and spirit. The appellant has shown existence of prima facie case in his favour. The balance of convenience also lies in favour of the appellant as irreparable loss would be caused if the students are unable to study because of noise pollution. The defendants have been unable to show as to what loss will be caused to them if they are asked to follow the rules and regulations prescribed for the use of load speaker. The defendants have failed to produce on record any permission from any authority giving permission to them to use the loud speakers.
MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 12 of 13Further, the reasoning of the ld Trial court that the noise from the temple is not ascertainable is also not sustainable, as if the same were true no statue on noise pollution would have been enforceable.
12. In view of above discussions, the present appeal is allowed and order dated 24.09.2022 of the Learned Trial Court is set aside being against the settled principles of law. The defendants are restrained from using the loud speakers, above permitted norms, without taking permission from the concerned authority from 7.30 am till 2 pm. The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with a copy of the judgment.
13. Parties are directed to appear before learned Trial Court/Successor Court on the date already fixed.
14. TCR be sent back with copy of this judgment. Appeal file be consigned to Record Room after due compliance.
Announced in open Court on 25.04.2023.
(Himanshu Raman Singh) Addl. Senior Civil Judge, Shahdara, Karkardooma Court, Delhi/25.04.2023.
MCA SCJ No. 11 of 2022 Arivind Tyagi vs. Mohit Parashar & Ors. Page 13 of 13