RONAK RAJNIKANT DHOBI - Appellant(s) Versus JAIMINI HIRENBHAI VYAS & 4 - Respondent(s) ========================================================= Appearance :
MR RUSHABH R SHAH for Appellant(s) : 1, Party-in-person for Respondent(s) : 1 - 2. M/S RJ RAWAL ASSOC. for Respondent(s) : 3, MR ASHOK K PADIA for Respondent(s) : 4, MS AMRITA M THAKORE for Respondent(s) :
5, ========================================================= CORAM :
HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 11/05/2012 CAV COMMON ORDER :
Order in A.O. :
1. Having considered the submissions advanced by Mr. RR Shah, Ld. Advocate for the appellant and respondent no. 1 - party-in-person as well as the learned advocates representing the other respondents, so also considering the impugned order passed by the trial Court, this Court is of the opinion that arguable issues are involved in this Appeal From Order and, therefore, the appeal appeal is admitted.
Order in C.A. :
2. I have considered the the submissions advanced by Mr. RR Shah, Ld.
Advocate for the appellant, so also by the respondent no. 1 - party-in-person and by the learned advocates representing the other respondents.
3. The respondent no. 1 herein filed Special Civil Suit No. 1562/2010 against the appellant and other co-respondents seeking perpetual injunction restraining the appellant herein who is defendant no. 2 in the suit, from using Bungalow No. 19/C, which is in his unauthorized possession, for any commercial purpose and to cause any obstruction or interference to the respondent no. 1 - plaintiff in using her bungalow. She has also prayed for mandatory injunction directing the appellant - defendant no. 1 to remove unauthorized construction work made in Bungalow No. 19/C as well as to direct the respondent no. 3 [original defendant no. 2] Ahmedabad Municipal Corporation to remove such unauthorized construction made by the appellant - defendant no. 1. In the said suit, the plaintiff filed an application at exh. 5 seeking temporary injunction order restraining the appellant defendant no. 1 from using Bungalow No. 19/C for any commercial purpose and to cause any obstruction or resistance to the plaintiff in her using her property till the pendency of the suit. The trial Court vide impugned order dated 31/3/2012 restrained the appellant - defendant no. 1 or his agent or anybody on his behalf from carrying on the non-residential activity in the garage of Bungalow No. 19/C and further the appellant - defendant no. 1 or anybody on his behalf was restrained from interfering with the possession of the plaintiff's property in any manner till final disposal of the said suit. The rest of the reliefs prayed in the temporary injunction application came to be rejected.
4. Mr.
RR Shah, Ld. Advocate for the appellant original defendant no. 1, at the outset, submitted that the appellant original defendant no. 1 did not cause any interference to the plaintiff in her possession of her bungalow in past and in future also the defendant no. 1 shall not cause any obstruction or interference to the plaintiff in her using and enjoying her bungalow, but it is submitted that since the time of his great grand father, the garage of the Bungalow No. 19/C was used for the purpose of ironing. It is submitted that the appellant original defendant no. 1 did not do any business of scooter repairing as alleged. He does not intend to do scooter repairing business in the premises. It is submitted that the trial Court granted temporary injunction order against the appellant original defendant no. 1 solely on the ground that the commercial activity was conducted in the premises. It is submitted that the trial Court erred in not taking into consideration that much prior to the date of institution of the suit, the garage was used for the work of ironing and at this stage, without there being any prima-facie evidence on record, the trial Court granted temporary injunction restraining the appellant from carrying out said work. Mr. Shah, Ld. Advocate for the appellant relied upon a case of Satyanarayan B Sharma v/s.
A.L. Dineu reported in 2004 [2] G.L.R. 1055. Mr. Shah further submitted that neither the office bearers of the society nor even Ahmedabad Municipal Corporation raised any objection about the appellant carrying on work of ironing in the garage. It is, therefore, submitted that this application may be allowed, as prayed for, or in the alternative the impugned order passed by the trial Court may be modified till the pendency of the appeal.
5. The respondent no. 1 [original plaintiff] party-in-person vehemently opposed the application and submitted that the appellant - defendant no. 1 is not the member of the society, but is a trespasser. Criminal complaints have been filed against him for illegal activities carried on by him in the premises, unauthorizedly occupied by him and it is submitted that the copies of such FIRs and complaints are produced in the suit. The party-in-person tendered paper book containing the copies of the documents produced on record, in the original suit before the trial Court and it is submitted that looking to the photographs, it can safely be said that the appellant carried on illegal unauthorized activities and committed breach of the bye-laws and rules of the society as the society is meant for only residential purpose and not for doing any commercial activity. The appellant illegally took electric connection for his commercial business. It is submitted that the appellant in the suit failed to prove his right or title to Bungalow No. 19/C. It is submitted that since the office bearers of the society failed to take any action against the appellant, the respondent no. 1 - plaintiff, who is residing adjacent to Bungalow No. 19/C, was constrained to file such suit because she herself and her family members suffered nuisance and annoyance because of the commercial activity done by the appellant in the property.
5.1. It is submitted that Satyanarayan Sharma's case [supra] relied upon by the appellant shall not help him as the facts in the said case were different. The appellant herein cannot compare his commercial activity with the commercial activity of the BSNL, as described in the said decision. The party-in-person read over relevant part from the impugned order and submitted that the trial Court was perfectly justified in granting the temporary injunction order. It is submitted that despite the fact that the trial Court granted temporary injunction order against the appellant - defendant no. 1, he committed breach of said order and, therefore, she had to file appropriate application before the trial Court to take appropriate action against the appellant - defendant no. 1. It is, therefore, submitted that the application for stay may be dismissed.
6. At the outset, considering the averments made in the plaint, prima-facie it transpires that the very object of filing the suit by the plaintiff was to prevent nuisance and annoyance. Perusing the impugned order passed by the trial Court, so far as the stand of the original defendant no. 3 society was concerned, the stand was to the effect that nobody made any complaint in this respect to the office bearers of the society. The stand of the defendant no. 4, subsequently joined in the suit in capacity as owner of Bungalow No. 19/C before the trial Court, was to the effect that the predecessor in title of the defendant no. 4 had inducted the appellant
- defendant no. 1 into the garage of Bungalow No. 19/C. However, there was no rent note. The trial Court, in the impugned order, took into consideration that the non-residential activity carried on by the appellant - defendant no. 1 in the garage caused nuisance and annoyance to the plaintiff. However, at the same time, the trial Court took into consideration the bye-laws and the rules of the society. It is pertinent to note that the society did not raise any objection to the effect that there was any breach of any of the bye-laws framed by the society.
7. It is true that the plaintiff filed criminal complaints against the appellant - defendant no. 1, but so far as the instant application for stay is concerned, at this stage, this Court is of the opinion that the relevant observation made by this Court in para. 18 in Satyanarayan Sharma's case [supra] is required to be taken into consideration, which runs as under :
"18.
As far as second petition, namely, S.C.A. No. 5964/2003 is concerned, it appears that it is nothing but a sponsored petition and it has been filed at the behest of the petitioners of S.C.A. No. 4653/2003. The petitioners have mixed up several issues in the said petition though the main issue in the petition is with regard to the challenge against the non-residential use of the tenament of Mr. Dubey given to B.S.N.L. for establishment of Telephone Exchange. The petitioners have also raised the issue regarding management and administration of the Society and unauthorized and illegal retention of powers by the office bearers who are defaulters and not qualified to hold office as well as the powers of the District Registrar. As far as non-residential use of the premises is concerned, it is already considered by the Tribunal and after having considered the finding arrived at by the Tribunal as well as the detailed Affidavit-in-reply filed by the Society, more particularly, non-residential use of the several other tenaments for the last number of years, this Court does not think it fit and proper to interfere in the order passed by the Tribunal. Even otherwise, due to the globalizations and fast development and growth of trade and commerce and expansion of city life, it is difficult to draw a line between the residential and non-residential premises in the town, cities and metropolitan areas where the space is the biggest problem. People are trying to make optimum use of the space available and for that purpose, even in residential areas, commercial establishments have been coming up. Such commercial establishments in residential localities have become the need of the hour. Considering the distance, shortage of time, pre-occupied life style and crave for availability of all services at one's doors, in many housing societies, provisions are made to that effect and such commercial use is not only made permissible but widely acknowledged and appreciated. When Schools, Colleges, Shops, Commercial establishments, Banks, Hospitals, Nursing Homes, Religious places etc. are established for the purpose of satisfying the needs and requirements of the people staying in residential localities, any one who raises any objection on the ground that non-residential use is not permissible in housing societies, is in my view putting the clock back and such attempt cannot be entertained looking to the present scenario. Only those persons who are having some vested interest or grudge against any particular person, unit or establishment, sometimes raises such disputes. Majority of members may not find any thing objectionable in it. This Court is, therefore, not inclined to interfere in the order passed by the Tribunal."
8. In light of the observation made by this Court in para. 18 in Satyanarayan Sharma's case, at this stage, without examining merits and demerits of the appeal in detail, it would be in the interest of justice if the impugned order passed by the trial Court is modified till the pendency of the appeal. As submitted by Mr. Shah, Ld. Advocate for the appellant, since the time of grand father of the appellant, the garage was used for the purpose of doing work of ironing. The suit came to be filed in the year 2010 and the trial Court passed the order of temporary injunction restraining the appellant - defendant no. 1 from carrying on said work. The fact as to whether the appellant - original defendant no. 1 has committed breach of the injunction order passed by the trial Court or not, shall be decided by the trial Court itself as the respondent no. 1 - party-in-person submitted that appropriate application has been filed in the suit before the trial Court. Mr. Shah, Ld. Advocate for the appellant submitted that the appellant - defendant no. 1 never did any scooter repairing work in the premises nor he intends to do such work. Moreover, considering the temporary injunction order passed by the trial Court, no modification is required in the said order so far as the appellant
- defendant no. 1 was restrained from interfering with the possession of the plaintiff's property in any manner.
9. In the above view of the matter, this Court is of the opinion that the impugned order passed by the trial Court, at this stage deserves to be modified to the effect that till the pendency of the appeal and subject to the final outcome of the Appeal From Order, the appellant original defendant no. 1 may carry on his ironing work [laundry work] only and while doing so, neither he himself nor his agent or servant shall cause any nuisance or annoyance to the respondent no. 1 original plaintiff. Except the above modification, which shall remain in force till pendency of the Appeal From Order, the rest of the impugned order passed by the trial Court is not interfered with in this Civil Application for stay. It is further made clear that this order shall not have any bearing whatsoever at the time when the Appeal From Order shall be heard and decided on its own merits as the above stated modification in the impugned order passed by the trial Court is only an interim arrangement made at this stage, keeping open rights of both the parties to the appeal to agitate their case and defense at the time when the Appeal From Order shall be heard on merits. In above view of the matter, the instant Appeal From Order is ordered to be expedited. Accordingly, Civil Application stands disposed of.
Registry to list the Appeal From Order on 13/06/2012 for final hearing. DSP.
(J.C.UPADHYAYA, J.) * Pansala.