Delhi District Court
Suit No. 245/12 vs Dr. Mahipal Singh Sachdeva on 30 January, 2013
CS No. 245/12
IN THE COURT OF SH. SUSHANT CHANGOTRA, CIVIL
JUDGE 06,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 245/12
Mrs. Renu Bansal
Aarogya Poly Clininc
A23, Ground Floor,
Green Park,
New Delhi.
.................. Plaintiff.
Versus
Dr. Mahipal Singh Sachdeva
A23, First Floor, Green Park,
New Delhi.
.......... Defendant.
Date of filing of Suit : 21.02.2002.
Date of decision : 30.01.2013.
Suit for mandatory and perpetual injunction.
JUDGMENT
1. The case of the plaintiff in brief is that she is running 1 CS No. 245/12 a poly clinic at A23, First Floor, Green Park, New Delhi. Defendant is a doctor and he is also running his clinic at 1st floor of A23, Green Park, New Delhi. The defendant illegal installed one six inches wide sewage plastic pipe by affixing it on a common wall between the premises of parties and the premises of adjoining property i.e. Holy Free Church situated at A24, Green Park, New Delhi. Defendant connected it with the disposal outlet of one of the toilets constructed in his premises at first floor through another pipe installed illegally on the terrace belonging to the plaintiff. This illegal installation was done by defendant when the plaintiff was out of town. When the plaintiff came back she was shocked to see the illegal construction in her premises.
2. The plaintiff asked the defendant to remove the said pipe but it has not been removed by defendant till date. In the first week of December, 2001 the said pipe started leaking and the filth started falling down in the premises of plaintiff and adjoining premises belonging to the church creating a lot of nuisance and health hazards. The plaintiff requested the defendant to stop creating the nuisance and to get the broken sewage pipe removed but the 2 CS No. 245/12 defendant took only temporary measures such as wrapping plastic/polythene etc.
3. On 08.01.2002 the sewage plastic pipe installed on the terrace of plaintiff was also broken. The filth and dirt water started falling on the terrace and consequently it started falling down in the passage of the premises creating a lot of nuisance and inconvenience to the visiting patients.
4. The plaintiff lodged their complaint in PS on 09.01.2002. The plaintiff also lodged one complaint with SDM, Mehrauli, New Delhi U/s 133 Cr.P.C. to get the disposal outlet plugged and for removal of unauthorized broken sewage pipe which was creating nuisance and health hazards.
5. On 19.02.2002, plaintiff again requested defendant to remove the sewage plastic pipe but he finally refused to remove the same. Thus, the plaintiff prayed for decree of perpetual injunction restraining defendant not to reconnect the sewage pipe with disposal outlet of the toilet. She also prayed for decree of mandatory injunction directing the defendant to remove the broken sewage pipe installed unauthorizedly and illegally.
3 CS No. 245/12
6. The defendant filed written statement and took preliminary objections that plaintiff has concealed material facts. The complaint before Ld. SDM was dismissed on the preliminary ground that no nuisance was caused by defendant. The construction done by defendant is fully authorized and it has been regularized by the MCD in the year 1999. The plaintiff herself has encroached the common passage which was to be used for entry and exit of the occupants and for other common purposes. Plaintiff is not a qualified medical practitioner and is not entitled to equitable relief of injunction.
7. On merits, it was admitted that plaintiff and defendant are carrying on their work at A23, First Floor, Green Park, New Delhi. In the year 1999, plaintiff raised some unauthorized construction and covered the common passage. The said act of plaintiff caused problem to the occupants including the defendant. On account of said illegal act of plaintiff not only the common passage but the outlet from the toilet of defendant was also closed. Consequently, the defendant redirected the said outlet for his bathroom after taking consent from all the occupants including 4 CS No. 245/12 plaintiff. The defendant further pleaded that a concrete boulder fell on the said sewage pipe installed by the defendant from a considerable height from the adjoining building. As a result, it was broken at one point and some damage was caused to it. The defendant tried to repair the said damage but was forcibly prevented by the plaintiff and her husband. The defendant also made complaint to PS Hauz Khas on 09.01.2002. The police conducted an enquiry and made a report to Ld. SDM. It stated that no nuisance was being caused as the waste disposal pipe was broken due to fall of a boulder from the adjoining building. The defendant further pleaded that plaintiff caused extensive damage to the said pipe by cutting it deliberately from the disposal outlet and by filling the same with concrete thereby completely blocking the outlet due to which the toilet has become incapable of being used. The sewage pipe has been illegally installed. Thus, prayed that suit be dismissed.
8. The plaintiff filed replication to the written statement of defendant and pleaded that complaint U/s 133 Cr.P.C. was dismissed on the ground that dispute between parties is purely of a civil nature and there is no public nuisance. No sanction of extra 5 CS No. 245/12 drainage pipe was obtained by defendant. She denied the averments of written statement and reasserted the contents of plaint. From the pleadings following issues were framed:
(i) Whether the plaintiff have any cause of action in their favour to file the present suit?OPP.
(ii) Whether the plaintiff is entitled for the relief of perpetual injunction as prayed for?OPP.
(iii) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for?OPP.
(iv) Relief.
9. In order to prove her case plaintiff stepped into the witness box as PW1. She tendered her affidavit Ex. P1 along with documents Ex. PW1/1 to Ex. PW1/5. PW2 Dr. J.K. Bansal also tendered his affidavit Ex. PW2/A. PW3 Sh. Nand Lal from MCD DEMS Department deposed that notice Mark X was issued from his office. The counsel for plaintiff closed PE on 03.07.2012.
10. On the other hand defendant examined Sh. Krishan Kaushik, LDC from Building Department. This witness proved the site plan Ex. DW1/1 and the letter dated 24.12.99 Ex. DW1/2. He 6 CS No. 245/12 also proved the letter dated 14.12.99 addressed to executive engineer Ex. DW1/3, copy of indemnity bond Ex. DW1/4, copy of affidavit of Dr. Mahipal S. Sachdev Ex. DW1/5, copy of letter dated 03.12.99 Ex. DW1/5. Copy of order regarding regularization as Ex. DW1/7. The defendant also examined Sh. Rajesh Tewetia, AE, Building South Zone. Then the defendant evidence was closed on 08.11.2012.
11. I have heard the arguments of counsels for the parties. Counsel for plaintiff argued that defendant admitted that he has installed a plastic sewage pipe in common premises. He has also admitted that there is leakage in the said pipe and it was broken. The PW's have clearly proved that there is continuous nuisance. Defendant has failed to prove authorization of sewage pipe. The defendant has not been examined. The suit may be decreed.
12. On the other hand, counsel for defendant vehemently argued hat plaintiff has failed to prove his case. Plaintiff has failed to prove nuisance. The defendant has proved that the toilet has been duly authorized by MCD. PW2 in his crossexamination failed to deny that he and plaintiff did not permit the defendant to repair the said pipeline. It is also admitted that petition U/s 133 Cr.P.C. was 7 CS No. 245/12 dismissed. The plaintiff has failed to prove his case. Thus, prayed that suit be dismissed.
13. I have considered the arguments and gone through evidence on record very carefully. My issuewise findings are given as below: ISSUE No.1
14. Onus to prove this issue was on the plaintiff. The case of plaintiff is for permanent injunction restraining the defendant from reconnecting the plastic pipe with disposal outlet of the toilet. The plaintiff also seeks mandatory injunction directing the defendant to remove the plastic pipe from the common area. It is a case of plaintiff that the aforesaid plastic pipe is a source of nuisance for the plaintiff. The said pipe is unauthorized construction. The defendant admits that the plastic pipe has been installed in common premises. However, it has been denied that it causes nuisance.
15. The term cause of action has been defined in Rajasthan High Court Advocates Association Vs Union of India, AIR 2001 SC 416, it has been held that, "the expression cause of action has acquired a judicially settled meaning. In the restricted 8 CS No. 245/12 sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary condition for the maintenance of the suit, including not only the infraction of right, but the infraction coupled with right itself. Every fact which is necessary to be proved, as distinguish for every peace of evidence which is necessary to prove each fact, comprises in cause of action". Hence in order to establish cause of action the plaintiff had to show the existence of right which has been challenged. The plaintiff admittedly is in occupation of first floor of suit property. The plaintiff was also under obligation to establish that the aforesaid pipe is a source of nuisance. Hence, there was threat to right of the plaintiff to enjoy the property.
16. The concept of nuisance is two folds. There is public nuisance and a private nuisance. Winfield and Jolowicez in their book of torts (11th edition) define private nuisance as:
"private nuisance may be described as unlawful inference with a persons use or enjoyment of land, or some right over, 9 CS No. 245/12 or in connection with it. The essence of a nuisance is state of affairs i.e. either continuous or recurrent condition or activity which unduly interferes with the use or enjoyment of land stenches, smoke, the escape of effluent and a multitude of different things may amount to nuisance in fact but whether they constitute an actionable nuisance will depend upon variety of a considerations".
17. In the present case, it is an admitted fact that the plastic pipe connecting the disposal of toilet of defendant was broken. The pleadings of plaintiff are that the aforesaid breaking of pipe is a source of continuous nuisance. On the other hand defendant has averred that the said pipe could not be repaired due to acts of plaintiff. PW2 i.e husband of plaintiff no.1 was specifically confronted with this fact in his crossexamination. This witness failed to deny or admit that he did not allow the defendant to repair the pipeline. The said lack of denial only tantamounts to admission that plaintiff herself did not let the defendant repair the pipe.
18. The pipe if not broken, is not a source of nuisance to 10 CS No. 245/12 anyone. It is no one's case that the pipe cannot be repaired. It has been established on record that the pipeline could have been repaired if the plaintiff would not have interfered. The plaintiff cannot be allowed to take advantage of her own wrongs.
19. Thus, it can be safely concluded that the affixing of plastic pipe in the common area is not at all a source of nuisance. Since it is not a source of nuisance. The plaintiff as well as defendant have equal right for enjoyment of common area of property.
20. The second aspect of the case of plaintiff is that the pipeline has been installed illegally. The defendant has proved the order of regularization of the toilet i.e the place from which the aforesaid pipe starts as Ex. DW1/7. The toilet could have been regularized only if a proper waste disposal arrangement was in place. Thus, the plaintiff has failed to prove that any of her rights are being violated by defendant. Thus, the plaintiff has failed to show the existence of cause of action. Hence, this issue is decided against the plaintiff and in favour of defendant.
11 CS No. 245/12 ISSUE No.2 & 3
21. Onus to prove both these issues was on the plaintiff. Both the issues are interconnected. I will decide both the issues together as discussion of one issue will necessarily involve discussion of the other issue. It has already been held in issue no.1 that plaintiff does not have any cause of action. The pipe in dispute cannot be termed as source of nuisance for the plaintiff. Further, the plaintiff has also pleaded and deposed orally that the defendant did not take prior permission of plaintiff before affixing the said pipe. However, PW2 i.e. husband of plaintiff failed to deny that the said pipe line was laid with their consent and with the consent of other occupants. The aforesaid lack of denial once again only leads to an inference that the plaintiff had initially given the consent for the said pipeline.
22. The plaintiff in her plaint has pleaded that pipe was installed in 1st week of December, 2001. Plaintiff did not take any steps for over a month. It is settled proposition of law that acquiescence dis entitles the relief of injunction. Section 41(g) & (i) 12 CS No. 245/12 of Specific Relief Act clearly bar grant of injunction on the ground of acquiescence. The grant of injunction is a discretionary remedy and the injunction cannot be granted against the basic principles of fairness.
23. Thus, plaintiff has failed to both prove these issues. Accordingly, both these issues are decided against the plaintiff and in favour of defendant.
RELIEF
24. In view of the findings given on the aforesaid issues, suit of the plaintiff is dismissed with costs. Decree sheet be prepared. File be consigned to record room after due compliance.
Announced in the open court (SUSHANT CHANGOTRA)
On 22.12.2012 CIVIL JUDGE06 (WEST)
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