Sunilkumar K. S & B. Neena v. A. Jayakumar & Uma Jayakumar & Gireesan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, ``` ## **`1943`** ``` OP(C) NO. 2954 OF 2016 ``` ``` AGAINST THE JUDGMENT IN CMA 15/2015 OF I ADDITIONAL ``` ``` DISTRICT COURT, THIRUVANANTHAPURAM ``` ``` OS 924/2014 OF II ADDITIONAL MUNSIFF COURT ,TRIVANDRUM PETITIONERS: ``` ``` 1SUNILKUMAR.K.S AGED 54 YEARS S/O. K.K.SUKUMARAN,RESIDING AT T.CNO.7/739(2),"SINDHOORAM" KOURA-23, KOCHULLOOR, MEDICAL COLLEGEPO., THIRUVANANTHAPURAM PIN-695011 2B.NEENA AGED 52 YEARS, D/O.T.S.BHAMINI,RESIDING AT T.C.NO.7/739(2), "SINDHOORAM" KOURA-23, KOCHULLOOR, MEDICAL COLLEGE PO., THIRUVANANTHAPURAM PIN-695011 BY ADVS. SRI.PRAVEEN VYASAN DR.SILPA AZIZ ``` ## **`RESPONDENTS/:`** ``` 1A.JAYAKUMAR AGED 49 YEARS, S/O. APPUKUTTAN NAIR, RESIDING AT T.C.NO.7/799, "SAUPARNIKA",KOURA- 12, KOCHULLOOR, MEDICAL COLLEGE PO.,THIRUVANANTHAPURAM-695011 2UMA JAYAKUMAR AGED 45 YEARS, W/O. A JAYAKUMAR,RESIDING AT T.C.NO.7/799,"SAUPARNIKA", KOURA-12, KOCHULLOOR, MEDICAL COLLEGE PO., THIRUVANANTHAPURAM-695011 ``` ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [20 x 9] intentionally omitted <==** , ``` 3GIREESAN AGED 40 YEARS, FATHERS NAME NOT KNOWN,RESIDING AT T.C.NO.7/799,"SAUPARNIKA", KOURA-12, KOCHULLOOR, MEDICAL COLLEGE PO., THIRUVANANTHAPURAM-695011 BY ADVS. SMT.LEKSHMI RAMAKRISHNAN SRI.G.RAJEEV SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [20 x 22] intentionally omitted <==** ## **JUDGMENT** The judgment dated 31.08.2016 in C.M.A.No.15/2015 passed by the First Additional District Court, Thiruvananthapuram is under challenge in this Original Petition filed under Article 227 of the Constitution of India. 2. Materials facts relevant for the adjudication of this petition are as follows:- 2.1 The petitioners are the plaintiffs in O.S.No.924/2014 on the file of the Additional Munsiff’s Court – II, Thiruvananthapuram. The petitioners are in possession of the plaint ‘A’ schedule property in the suit. The respondents own the property on the eastern side of the plaint ‘A’ schedule property. There is a common boundary wall separating the two properties. A lane on the northern side of plaint ‘A’ schedule property is described as ‘B’ schedule. ‘B’ schedule lane is commonly used by the petitioners, respondents and some others. ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [20 x 22] intentionally omitted <==** 2.2 Petitioner No.1 is a retired employee of the VSSC. He is suffering from Hyperacusis, Tinnitus and Vertigo. He is allergic to sound due to his strange disease. The Doctors advised him not to expose himself to sounds emanating from vehicle horns, heavy engine working sounds, cracker firing sounds and even dog barking sound etc. Therefore, the petitioners prayed for a permanent prohibitory injunction restraining the respondents and their men or anybody acting through them from honking horns when the vehicles used by them enter ‘B’ schedule lane, sounding their electronic car locking system and burning dry household trash and stagnating dirty water in their property. 2.3 Along with the suit, the petitioners filed I.A.No.3666/2014 for an interim prohibitory injunction. 3. The respondents resisted the application contending that the allegations levelled by the petitioners were false. According to the respondents, ‘B’ schedule lane opens into the main road, and while vehicles enter ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [20 x 21] intentionally omitted <==** the main road, sounding of horns is highly required. Respondents have not committed any act in violation of the relevant rules. The horns fitted in their cars are in conformity with the relevant rules. The respondents never committed any nuisance as pleaded. 4. After hearing both sides, the Trial Court recorded the finding that the petitioners failed to prima facie establish that the defendants used sound horns not permitted by law. The relevant portion of the order passed by the Trial Court is extracted below:- “11. By producing the medical certificate, the plaintiff prima facie proved that he is allergenic to sounds as he is suffering from some kind of strange disease. But the plaintiff is having no case that the place wherein he sought for injunction to restrain the defendants from honking horns is a prohibited area to sound horn as per any Act or Rules. The plaintiff is having no case that the defendants are using their car by installing any additionally fitted horns in their cars than fitted by the car manufacturing company and making sounds to cause injury to the plaintiff. In the above circumstances, it is difficult to arrive at a conclusion that the defendant is using horns than ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [20 x 22] intentionally omitted <==** permitted under law, to their cars. Thus, I am of the opinion that without entering into a prima facie finding that the defendants are using sound horns than permitted by law and without bringing the sound level of the defendant’s car it is not proper to pass an injunction against the defendants from honking horns as prayed by the plaintiff. The learned counsel for the defendant contended that the way to the house of the plaintiff and the defendants opens into a main lane and while they are entering into the main lane the sounding of the horn of the vehicle is mandatory and highly necessary. On going through Ext.C1(a) rough sketch attached to the Advocate Commissioner’s report (Ext.C1) it can be seen that the plaint B schedule way touches the main lane in a perpendicular manner. In the above circumstances it is clear that sounding of horn at the spot is highly necessary and that it is not proper to pass an injunction as prayed, against the defendants, simply because of the fact that his neighbour is suffering from some kind of disease. 12. The plaintiff further contended that the defendants have constructed plaint C schedule structure of 3 feet height at a distance of 3 meter from the window of the plaintiff’s house for the purpose of burning paper, plastic and rubber waste and while burning, the smoke emanating from the same used to enter into the drawing room of the plaintiff’s house causing vomiting sensation to the 1[st] plaintiff. 13. The defendants, on the other hand, contended that ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [20 x 21] intentionally omitted <==** the plaintiffs are having no case that the defendants constructed the plaint C and D schedule structures encroaching into their property. There is no dispute with respect to the fact that the plaint C and D schedule properties are situated in the plaint schedule property. The plaint C schedule is only an arrangement made by the defendant’ to burn paper waste and dry leaves of trees in the defendant’s property. Usually the wind at the site will be from west to east and the plaintiff’s house is situated on the western side of the said burn pit, which is in addition to the bio-gas plant. The plaint D schedule is a well enclosed water pit which is at a distance of 3.5 meters from the defendant’s western compound wall. It is not to store drainage waste or not a soak pit as alleged by the plaintiff.” 5. Based on the reasoning in the above extracted portion of the order, the Trial Court dismissed the interlocutory application. The petitioners/plaintiffs challenged the order in C.M.A. No.15/2015. The District Court confirmed the order dated 16.12.2014 of the Trial Court. 6. The District Court, while confirming the order of the Trial Court, observed that reasonable use of the ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [20 x 22] intentionally omitted <==** horn and the electronic locking system fitted in the vehicle, even if it causes inconvenience to others, cannot be prevented by order of injunction. The District Court also noted that the entrance of ‘B’ schedule pathway is situated about 49.03 metres away from the property of the respondents/defendants. It has also taken note of the fact that in between the property of the parties, two other residential buildings are situated. After meticulously analysing the materials placed before it, the District Court held that the case of the petitioners/plaintiffs that the sounding of horn at the time of entry and exit from the ‘B’ schedule lane causes much disturbance to petitioner No.1 seems to be unbelievable as the ‘entrance’ is situated 49 metres away from the petitioners’ house. The Courts below recorded the finding that the petitioners failed to establish that the respondents used any facility in the vehicles in violation of the relevant rules. The District Court specifically found that the use of vehicles by the respondents is reasonable. ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [20 x 22] intentionally omitted <==** On the allegation of burning plastic and trash on the property, the courts below held that there is no prima facie or satisfactory evidence to show that the respondents caused any nuisance. 7. The grant of an interlocutory injunction during the pendency of the legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion, the Court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision of whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. While granting an interlocutory injunction, the Court must weigh the need for relief projected from ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [26 x 22] intentionally omitted <==** the part of the plaintiff against the injury by violation of his right for which he could not be adequately compensated. The said need is to be weighed against the corresponding need for the opponent to be protected against the injury resulting from the violation of his own legal rights. 8. The District Court carefully analylsed the materials placed before it and held that the petitioners/plaintiffs failed to establish a prima facie case in their favour for getting the relief of prohibitory injunction. This Court is satisfied that the Court below has exercised its jurisdiction reasonably and in a judicial manner. It is also important to note the Appellate Court will not interfere with the exercise of jurisdiction of the court of the instance and substitute its own first discretion except where the discretion has been shown to have been exercised arbitrarily. In **Wander Limited vs. Antox India Private Limited** [1990 Supp. SCC 727], the Hon’ble Apex Court held thus:- ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [26 x 9] intentionally omitted <==** **==> picture [4 x 4] intentionally omitted <==** “The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. “ 9. In the present case, this Court finds no apparent irregularity or injustice committed by the Courts below. This Court finds that this is not a case where the interference of this Court under Article 227 is warranted. 10. The power under Article 227 of the Constitution ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [26 x 22] intentionally omitted <==** would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly in cases where grave injustice would be done unless the High Court interferes. It cannot be used as an appellate or revisional power. 11. The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirements are satisfied-- (1) the error is manifest or apparent on the face of the proceeding such as when it is based on clear ignorance or utter disregard of the provisions of law; and (2) a grave injustice or gross failure of justice occasioned thereby. 12. This Court finds no reasons to interfere with the impugned judgment. 13. The Original Suit is of the year 2014. The learned counsel for the petitioners prayed for a direction to the Trial Court for an expeditious disposal of the suit. The Court below shall dispose of the original suit, as expeditiously as possible, at any rate within a period of ``` OP(C) NO. 2954 OF 2016 ``` **==> picture [26 x 9] intentionally omitted <==** **==> picture [4 x 4] intentionally omitted <==** six months from the date of receipt of a copy of this judgment. 14. Registry is directed to transmit the Lower Court Records forthwith. The Original Petition stands dismissed. Sd/- **K. BABU, JUDGE** kkj ``` OP(C) NO. 2954 OF 2016 ``` ..14.. , ## **`APPENDIX OF OP(C) 2954/2016`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1:TRUE COPY OF THE I.A.NO.3666/2014 DATED 21.05.2014 EXHIBIT P2:TRUE COPY OF THE PLAINT OF O.S.NO.924/2014 DATED 22.05.2014. EXHIBIT P3:TRUE COPY OF THE WRITTEN STATEMENT OF O.S.NO.924/2014 DATED 16.06.2014 EXHIBIT P4:TRUE COPY OF THE COMMISSION REPORT DATED 23.05.2013 EXHIBIT P5:TRUE COPY OF THE JUDGMENT DATED 16.12.2014 EXHIBIT P6:TRUE COPY OF THE ORDER IN C.M.A15 OF 2015 DATED 31.08.2016 ```