Jigeesha Thakore, secretary of the All India Animal Welfare Association who runs a shelter/sterilization centre at the BMC's dog pound at Dhobi Ghat, Mahalaxmi, was dragged to court by her neighbours in the 20-storey Venus housing society over the tray she had installed in her balcony. Dilip and Meena Shah, an elderly couple who live in the flat below, claimed the daily Feeding of birds was causing nuisance and hygiene problems for them.
"Nobody can have a grievance about (Jigeesha's) love for birds and animals. The question is if she is entitled to feed them by placing a tray below her balcony window so as to cause nuisance to others in the society," the judge said, adding, "Howsoever much one may want to feed birds and animals, it would obviously have to be done in a manner as not to cause nuisance to the neighbours or other residents. It is well settled that a person cannot use his premises for causing nuisance to his neighbours or other residents."
The high court held that there was enough material at the prima facie stage to indicate that on account of the bird-feeding, nuisance was caused to other members of the society. "The trial court has, therefore, observed that she may feed the birds at some other place where no nuisance is likely to be caused to anybody. She may consider the suggestion of the court," said the judge. The court has stayed its order for four weeks.
Jigeesha's lawyers claimed that the couple had not raised any objections for more than a decade and had lodged the case only in 2011, with a view to harass her. The Shahs claimed that bird feeding starts around 6.30am daily and is done several times a day. Farsan is fed to crows while pigeonsare fed jowar grains three times a day. The filth as well as bird droppings, which fall in their balcony, had worsened Meena's skin condition and asthma, the couple said in their complaint.
The court said there was substance in the claims made by the Shahs; the society staff had also complained about grains spilling from the tray as well as bird droppings. "It would also have to be presumed that the birds are habituated to being fed from the tray and, therefore, must be flocking there in large numbers. The flocking of the birds obviously has the effect of generating noise on account of flapping of their wings and the humming noise which the pigeons usually make," the judge added, upholding the interim order of the trial court asking Jigeesha to remove the feeding tray from the balcony. A petition challenging the trial court's jurisdiction to hear the case is pending before another bench of the high court.
IN THE HIGH COURT OF BOMBAY
Appeal From Order No. 1240 of 2013 and Civil Application No. 1473 of 2013
Decided On: 12.07.2016
Padma Thakore and Ors.
Vs.
Dilip Sumanlal Shah and Ors.
Vs.
Dilip Sumanlal Shah and Ors.
Coram:R.M. Savant, J.
Citation: 2016(6) MHLJ374
Citation: 2016(6) MHLJ374
1. Admit. Considering the challenge raised, with the consent of the learned counsel for the parties, heard forthwith.
2. The above Appeal from Order takes exception to the order dated 27/09/2013 passed by the learned Judge of the City Civil Court, Greater Bombay by which order the Notice of Motion No. 2995 of 2011 filed by the Respondent Nos. 1 and 2 herein i.e. the original Plaintiffs came to be allowed and made absolute in terms of prayer clause (a).
3. The facts giving raise to the filing of the above Appeal from Order can in brief be stated thus :-
The Appellants herein are the original Defendant Nos. 1 and 2 to the suit in question. The Appellant No. 1 has been deleted as she has expired during the pendency of the above Appeal from Order. The Respondent Nos. 1 and 2 herein are the original Plaintiffs in the suit in question being S.C. Suit No. 2713 of 2011. The Plaintiffs are more than 70 years of age and the father of the Plaintiff No. 1 is about 96 years old. The said suit has been filed principally for the relief that the Defendant Nos. 1 and 2, their family members, servants, agents be permanently restrained by an order of injunction from creating nuisance to the Plaintiffs and other occupants of the building by feeding the birds with water and grains or such eatables from their balcony or any part thereof. In the said suit, by way of prayer clause (b) the Plaintiffs have sought temporary injunction in the same terms as in the main principal relief.
The foundation for the aforesaid reliefs has been laid in the averments which find place in the plaint. It is the case of the Plaintiffs that they are the occupants of the flat bearing No.E/10 in E-Block of the Respondent No. 3 Society i.e. the original Defendant No. 3 to the suit. The building wherein the Plaintiffs' flat is situated is a 20 storeyed building. The Defendant Nos. 1 and 2 are in occupation of flat bearing No.E/14 which is a flat above the Plaintiffs' flat. The dispute has arisen on account of the erection of a platform and/or a metal tray installed by the Defendant Nos. 1 and 2 outside their balcony window for feeding grains and water to birds. It is the case of the Plaintiffs that on account of the said feeding from the metal tray, a large number of birds frequent the said tray causing nuisance to the Plaintiffs on account of the bird droppings as well as filth created by birds. It is the case of the Plaintiffs that the grains fall of from the said tray and fall on the channels of the sliding window of the Plaintiffs balcony which is just below the balcony where the said tray is kept. It is the case of the Plaintiffs that the said bird feeding is started by the Defendant Nos. 1 and 2 in the morning at 6.30 am and done several times in the day till evening. The Plaintiffs in the plaint have referred to the correspondence that they have entered into with the Defendant Nos. 1 and 2 as also the steps taken by the Plaintiffs to amicably resolve the issue. It is also the case of the Plaintiffs that the act of the Defendant Nos. 1 and 2 in feeding grains and water to the birds is not only causing nuisance to the Plaintiffs but also other members of the Defendant No. 3 Society. The Plaintiffs have referred to the complaints made by one Mr. Dilip Jobanputra residing in flat No.E-11 which is also below the flat of the Defendants. The Plaintiffs have also referred to the correspondence entered into by the Defendant Nos. 1 and 2 with the Defendant No. 3 Society, wherein the Defendant Nos. 1 and 2 admitted to the nuisance caused on account of the said bird feeding but refused to stop the same and called upon the residents for neighbourly tolerance and co-operation. The Plaintiffs have also referred to the letter addressed by the Defendant No. 3 Society dated 02/01/2010 to the Defendant No. 1 and 2 requesting them to stop feeding the birds from their balcony and instead use the public places designated for bird feeding. It is also the case of the Plaintiffs that the Plaintiff No. 2 is suffering from asthama and skin disease and that on account of the insects which are generated by feeding of the food grains, the birds droppings on the chajja, the problem of the Plaintiff No. 2 is further aggravated causing rash and itching to the Plaintiff No. 2. The Plaintiffs have thereafter averred that though they tried to amicably resolve the issue with the Defendant Nos. 1 and 2 on account of the obstinate stand taken by the Defendant Nos. 1 and 2, the Plaintiffs had to approach the police authorities. The Plaintiffs have also referred to the resolution passed by the Defendant No. 3 Society in its meeting dated 10/04/2010 wherein it was unanimously resolved that no member shall be allowed to feed birds from their balconies or windows. The Plaintiffs have averred that though called upon to do so, the Defendant Nos. 1 and 2 have refused to stop the bird feeding. The Plaintiffs have further averred that they have in order to avoid the nuisance caused by the Defendants, removed their original chhajja and made new chhajja with more length and width at the costs of Rs. 12,000/-, however in spite of the same, nuisance on account of the bird feeding continues to the Plaintiffs. The Plaintiffs have therefore in the suit sought the reliefs which have been adverted to herein above. The Plaintiffs to the plaint have annexed the photographs being Exhibit A1, A2 and A3 showing the birds and the manner in which the nuisance is being caused to the Plaintiffs. The Plaintiffs have also to the plaint annexed the correspondence between the Plaintiffs and the Defendant Nos. 1 and 2 as also the letter addressed by the Defendant No. 3 Society to the Defendant Nos. 1 and 2.
4. In the suit in question the Plaintiffs have filed the instant Notice of Motion and the relief claimed therein is for an injunction restraining the Defendant Nos. 1 and 2 from creating nuisance to the Plaintiffs and other occupants of the building by feeding the birds with water and grains or such eatables from their balcony or any part thereof, and for removal of the metal tray attached to their balcony. In the affidavit in support of the said Notice of Motion the Plaintiffs have reiterated their case as set out in the plaint.
5. The Defendant Nos. 1 and 2 have filed their affidavit in reply to the said Notice of Motion. It was the case of the Defendant Nos. 1 and 2 that the Defendant No. 2 is an animal welfare activist and the Honorary Secretary of the All India Animal Welfare Association (AIAWA) since 1998 and runs a shelter/sterilization centre at Briihanmumbai Mahapalika's Dog Pound situated at Mahalaxmi Dhobi Ghat and she is also the Managing Trustee of another Charitable Trust "Vatsalya". It is the case of the Defendant Nos. 1 and 2 that the Plaintiff No. 2 has been a regular supplier of medical and surgical equipments to the said NGO. It is the case of the Defendant Nos. 1 and 2 that since the Plaintiffs are seeking to raise the dispute against the Defendant Nos. 1 and 2 and since both the parties are the members of the Defendant No. 3 Society, the jurisdiction of the Civil Court is ousted and the Plaintiffs are required to invoke the jurisdiction of the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act, 1960. It is the case of the Defendant Nos. 1 and 2 that though the Defendant Nos. 1 and 2 have been feeding grains and water to the birds since more than 10 years, there have been no complaints from the Plaintiffs or any member of the Defendant No. 3 Society. It is their case that it is only in the year 2009 that the Plaintiffs raised this issue only to harass them. It is the case of the Defendant Nos. 1 and 2 that it is not possible for the birds to be fed on the ground level on account of the fear that the birds may come under a car or get caught by some other animals such as cats, dogs, etc. The Defendant Nos. 1 and 2 accepted the fact that the Defendant No. 2 feeds farsan to crows from their kitchen window in the morning at around 9.00 am and at 1.00 pm. It is also accepted by the Defendants that the Defendant No. 2 feeds pigeons with food grains like jowar thrice a day. The Defendants have referred to some other members like one Shri O D Purohit and Shri Bhatia who are also feedings grains and water to the birds. It is the case of the Defendant Nos. 1 and 2 that they have not created any nuisance or problems or committed any illegal act by feeding the birds.
6. The Plaintiffs in response to the said affidavit in reply filed by the Defendant Nos. 1 and 2 filed their re-joinder. In so far as opposition of the Defendant Nos. 1 and 2 to the invocation of the jurisdiction of the Civil Court is concerned, the Plaintiffs contended that they have filed the suit in question to assert their civil rights on account of the nuisance created by feeding of birds by the Defendant Nos. 1 and 2. The Plaintiffs reiterated their case that feeding the birds, apart from causing nuisance, is also causing problems relating to hygiene.
7. The Trial Court i.e. the learned Judge of the City Civil Court, Greater Bombay considered the said Notice of Motion and has by the impugned order dated 27/09/2013 allowed the same in terms of prayer clause (a). The gist of the reasoning of the Trial Court whilst allowing the Notice of Motion is that the act of bird feeding by the Defendant Nos. 1 and 2 is not only causing nuisance to the Plaintiffs but also to the other members of the Society. In arriving at the said conclusion the learned Judge has inter alia referred to the photographs produced by the Plaintiffs in substantiation of their case. The learned Judge has also referred to the correspondence entered into between the Plaintiffs and the Defendant Nos. 1 and 2 as also the letters addressed by the Defendant No. 3 Society to the Defendant Nos. 1 and 2. The learned Judge observed that sum total of the material on record would make it crystal clear that there is a nuisance to the members of the Society on account of the bird feeding and that the said bird feeding also creates problems about hygiene. The learned Judge has observed that if the Defendant No. 2 claims to be an animal welfare activist and the Honorary Secretary of the AIAWA, then it would be better if she feeds the birds at some other place where no nuisance would be caused either to the neighbours or the staff or the occupants of E- Block of the Defendant No. 3 Society. The learned Judge has referred to the situation of the tray and observed that the said tray is exactly above the balcony window of the Plaintiffs. The learned Judge has observed that there are large number of birds who are seen flying here and there and some of them are even sitting on the balcony of the Plaintiffs. The learned Judge has observed that the Defendant Nos. 1 and 2 are unnecessarily causing nuisance to the Plaintiffs on account of spilling of the water, feeding grains and birds droppings and therefore if the Defendant Nos. 1 and 2 are not prevented from doing such act, the nuisance would continue to be caused to the Plaintiffs and other members of the Defendant No. 3 Society and may give rise to health problems. The learned Judge therefore came to a conclusion that the injunction is required to be granted in favour of the Plaintiffs as balance of convenience is also in favour of the Plaintiffs and irreparable loss and comparative hardship would be caused to the Plaintiffs if the injunction is not granted and therefore the learned Judge has made the Notice of Motion absolute in terms of prayer clause (a). As indicated herein above it is the said order dated 27/09/2013 which is taken exception to by way of the above Appeal from Order.
8. At this stage it is required to be noted that the Defendant Nos. 1 and 2 had raised the issue of jurisdiction by filing an application invoking Section 9A of the Code of Civil Procedure. The said issue was raised having regard to Section 91 of the Maharashtra Co-operative Societies Act. The Trial Court i.e. the learned Judge of the City Civil Court, Greater Bombay had framed a preliminary issue under Section 9A of the Code of the Civil Procedure as regards the jurisdiction of the City Civil Court to try the suit in question. The said issue has been answered against the Defendant Nos. 1 and 2, and the Trial Court has ruled that it has the jurisdiction to try and entertain the suit in question. The said order passed by the Trial Court is taken exception to by the Defendant Nos. 1 and 2 by way of Writ Petition No. 11960 of 2012. In the said Writ Petition an order came to be passed by a learned Single Judge of this Court on 24/06/2013 whereby the learned Single Judge has directed the Trial Court to decide the application for injunction i.e. the Notice of Motion in question, however, the ultimate order passed by the Trial Court granting injunction was not to be implemented until further orders to be passed in the said Writ Petition. The said Writ Petition again came up for admission before another learned Single Judge of this Court on 23/06/2014. Since before that the instant Notice of Motion had been decided by the learned Judge of the Trial Court, the learned Single Judge has discontinued the condition mentioned in the order dated 24/06/2013 on the ground that since the above Appeal from Order has already been preferred challenging the order passed in the Notice of Motion, there is no point in continuing the condition imposed vide order dated 24/06/2013, as the legality and validity of the order can be gone into in the above Appeal from Order. That is how the above Appeal from Order is taken up for consideration.
9. Heard the learned counsel for the parties.
10. SUBMISSIONS ON BEHALF OF THE APPELLANTS BY THE LEARNED COUNSEL SHRI V Y SANGLIKAR
A] That the suit as filed is not maintainable, as both the Plaintiffs and the Defendant Nos. 1 and 2 are the members of the Defendant No. 3 Society and the issue raised in the suit touches the business of the society and therefore the Plaintiffs ought to have filed a dispute under Section 91 of the Maharashtra Co-operative Societies Act.
B] That having regard to the averments in the plaint, the Plaintiffs are in effect seeking the implementation of the resolution passed by the Defendant No. 3 Society.
C] That there is a delay in filing the suit as the Defendant Nos. 1 and 2 are feeding the birds since a long time and the suit is only filed in the year 2011. Reliance is placed on the judgment of the Apex Court reported in MANU/SC/0522/2009 : AIR 2009 SC 2882 in the matter of Kishorsinh Ratansinh Jadeja v/s. Maruti Corpn. & ors. in support of the said contention.
D] That the Plaintiffs did not have any grievance as regards the feeding of the birds, whilst the Plaintiff No. 2 was supplying some instruments to the NGO Vatsalya with which the Defendant No. 2 was concerned. Hence the suit filed is malafide and therefore the conduct of the Plaintiffs is such as to dis-entitle them to the discretionary relief of injunction. Reliance is placed on the judgment of the Apex Court reported in MANU/SC/7567/2008 : AIR 2008 SC 2291 in the matter of Mandali Ranganna & ors. v/s T Ramchandra & ors.
E] That the prayer in the Notice of Motion goes beyond the prayer in the suit and therefore the same ought not to have been granted by the Trial Court.
F] That the mandatory relief of removal of the tray could not have been granted by the trial court as no case for grant of the said relief is made out by the Plaintiffs. Reliance is placed on the judgment of the Apex Court reported in MANU/SC/0940/2006 : (2006) 3 SCC 312 in the matter of Kishor Kumar Khaitan and another v/s. Praveen Kumar Singh.
G] The Learned Counsel sought to place reliance on a fact sheet relating to crows, wherein it is stated to the following effect :-
"People can co-exist with urban crows - you just have to know your wild neighbours",as also in respect of pigeon dropping, wherein it is stated that
"there is little evidence linking pigeons directly to human infections. This was produced in support of the contention that there is no nuisance caused on account of bird feeding."
11. SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS.1 AND 2 BY THE LEARNED COUNSEL SHRI KALPESH JOSHI.
i] That on account of the feeding the birds by the Defendant Nos. 1 and 2 nuisance is caused to the Plaintiffs, who are residing just below the Defendant Nos. 1 and 2, and as their civil rights being affected, the Plaintiffs are therefore entitled to file the suit in question.
ii] In so far as the issue of jurisdiction is concerned, the same can be gone into in the Writ Petition filed by the Defendant Nos. 1 and 2 in this Court, and therefore, this Court need not go into the said aspect in the above Appeal from Order.
iii] That the relief of removal of the tray from which the birds are fed is incidental to the relief of injunction sought by the Plaintiffs and therefore the Plaintiffs are entitled to the said relief.
iv] That the Defendant Nos. 1 and 2 are unnecessarily connecting the supply of some instruments by the Plaintiff No. 2 to the NGO "Vatsalya" with which the Defendant No. 2 is concerned with the filing of the suit. It was the submission of the learned counsel for the Respondent Nos. 1 and 2 i.e. the original Plaintiffs that there was no business transaction and that the said NGO was supplied with some instruments of the value of a few thousand rupees.
v] That there is no delay in filing the suit as only after making all other efforts to resolve the issue amicably that the Plaintiffs were constrained to eventually file the suit.
vi] That the material placed on record amply demonstrates the nuisance caused to the Plaintiffs on account of the feeding of the birds by the Defendant Nos. 1 and 2. The feeding of the birds has the effect of generating filth, insects and thereby is a health hazard also to the residents of the "E" block.
vii] The Learned Counsel sought to place reliance on the judgment of a learned Single Judge of the Punjab and Haryana High Court reported in MANU/PH/0068/1989 : AIR 1989 (P and H) 253 in the matter of Darshan Ram Vs. Nazar Ram in support of his contention that the Defendant Nos. 1 and 2 cannot use their premises for causing nuisance to the Plaintiffs and other members of the society.
12. Having heard the learned counsel for the parties, I have considered the rival contentions.
At the outset it would be necessary to refer to the relief sought in the suit and the relief sought in the Notice of Motion, the same are reproduced herein under for the sake of ready reference :-
"Relief sought in the suit :-
(a) That Defendant Nos. 1 and 2, their family members, servants, agents be permanently restrained by an order and injunction of this Hon'ble Court from creating nuisance to the Plaintiffs and other occupants of the Building by feeding the birds with water and grains or such eatables from their balcony or any part thereof.""Relief sought in the Notice of Motion.
(a) That pending the hearing and disposal of the above Suit, Defendant Nos. 1 and 2, their family members, servants, agents be temporarily restrained by an order and injunction of this Hon'ble Court from creating nuisance to the Plaintiffs and other occupants of the building by feeding the birds with water and grains or such eatables from their balcony or any part thereof and remove the said metal tray attached to their balcony."
Hence in the Notice of Motion, apart from the injunction, the Plaintiffs have sought removal of the feeding tray from the site in question. As indicated above, it is the case of the Plaintiffs that on account of the feeding of the birds with grains and water, the Defendant Nos. 1 and 2 are causing nuisance to the Plaintiffs. There is no dispute about the fact that the flat of the Plaintiffs is E/10 whereas the flat of the Defendant Nos. 1 and 2 is E/14 which flats are one above the other.
13. In so far as the placement of the tray is concerned, there is no dispute about the fact that the said tray has been kept by the Defendant Nos. 1 and 2 out of their balcony window by mounting it on iron brackets attached to their balcony. There is also no dispute about the fact that the Defendant Nos. 1 and 2 are feeding the birds two to three times in a day. In support of their respective assertions both the Plaintiffs and the Defendant Nos. 1 and 2 have produced photographs, the photographs produced by the Plaintiffs are marked as A to A-2. The photograph A shows the metal tray outside the window of the Defendant Nos. 1 and 2. The second photograph produced by the Plaintiffs shows the birds are sitting on the balcony of the Defendant Nos. 1 and 2 flat. Last photograph Article A-2 shows the filth generated on account of the birds. The photographs produced by the Defendant Nos. 1 and 2 show the position of the flats of the Plaintiffs and the Defendant Nos. 1 and 2.
14. Now coming to the documents on record. It seems that after the Plaintiffs complained to the Defendant No. 3 Society, the Defendant No. 3 addressed a letter dated 24/12/2009 Exhibit C calling upon the Defendant Nos. 1 and 2 to desist from feeding the birds. Thereafter the office staff of the Defendant No. 3 Society has addressed a letter to the Secretary of the Society in respect of the fact that there are bird droppings from the flat of the Defendant Nos. 1 and 2 which falls on their body and clothes. Thereafter there is a letter dated 02/01/2010 addressed by the Defendant No. 3 Society to the Defendant Nos. 1 and 2, as also a further letter dated 08/01/2010. The said letters unequivocally show that the Defendant No. 3 Society also called upon the Defendant Nos. 1 and 2 to stop the feeding of birds from their balcony. The office staff has also written to the Society in respect of the bird droppings. The aforesaid correspondence therefore discloses that it is therefore not as if it is only the Plaintiffs who are complaining, but others have also complained. In fact as indicated above, one Mr. Dilip Jobanputra has also complained to the Defendant No. 3 Society as regards the feeding of the birds by the Defendant Nos. 1 and 2. The documents further demonstrate that after making all efforts to resolve the dispute amicably that the Plaintiffs had complained to the police by addressing a letter to the Commissioner of Police and the Senior Inspector of Police, Worli. The letter addressed by the Defendant No. 2 to the Society also accepts the position that at times water spills or the container falls down but calls upon the members not to make it an issue and have neighbourly tolerance and co-operate. Hence implicit in the said letter is the acceptance of the fact by the Defendant No. 2 that there may be some inconvenience that is caused to the members of the Defendant No. 3 Society. A suggestion by the Defendant No. 3 Society to the Defendant No. 2 to carry out bird feeding at some other place has been turned down by the Defendant No. 2 on the ground that the bird feeding has to be at a height as otherwise same would result in danger to the birds being run over by the car or being attacked by the cats, dogs etc.
15. Having regard to the documents on record which comprises of the letters exchanged between the Plaintiffs and the Defendant Nos. 1 and 2, the Plaintiffs and the Defendant No. 3 Society, the Defendant No. 3 Society and the Defendant Nos. 1 and 2 and the letter addressed by the staff to the Secretary of the Defendant No. 3 as also the letter addressed by Shri Dilip Jobanputra who is residing in the flat No.E/11, the Trial Court in paragraph 13 of the impugned order has concluded that it is crystal clear that there is a nuisance from the feeding of the birds to the members of the Society as also problems to the wife of the Plaintiff No. 1.
16. A look at the photographs produced by the Plaintiffs shows how the birds mostly pigeons flock together on the tray and some of them can be seen to be spilling over the adjoining balconies including the balcony of the Plaintiffs. The grievance of the Plaintiffs that on account of birds, there are bird droppings and grains also dropped in the balcony of the Plaintiffs, has substance. It is required to be noted that it is not only the Plaintiffs but also the office staff of the Defendant No. 3 Society who has complained in respect of the grains falling from the tray and the bird droppings. It would also have to be presumed that the birds are habituated to being fed from the tray and therefore must be flocking there in large numbers. The flocking of the birds obviously has the effect of generating noise on account of the flapping of their wings and the humming noise which the pigeons usually make.
17. Now coming to the contentions urged by the learned counsel for the Appellants i.e. the Defendant Nos. 1 and 2. In so far as the issue of jurisdiction of the Civil Court is concerned, the said issue has been decided against the Defendant Nos. 1 and 2 by the Trial Court. The Defendant Nos. 1 and 2 have therefore filed Writ Petition No. 11960 of 2012 challenging the order passed by the Trial Court. It is therefore in the said Writ Petition that the issue of jurisdiction would be gone into. It is therefore not necessary for this Court to delve into the said issue.
In so far as the ground of delay is concerned, the Plaintiffs it seems have come to occupy the flat in question in the year 2001 or there abouts. The Plaintiffs only after making all other efforts to amicably resolve the issue have filed the suit in question. Since the feeding of birds is continuing, the suit filed in the year 2011 cannot be said to be filed belatedly. Assuming that there is some delay it cannot come in the way of the Plaintiffs as on account of the said delay no right is created in favour of the Defendant Nos. 1 and 2 or any vested right of the Defendant Nos. 1 and 2 is affected on account of the said delay.
18. Now coming to the contentions urged on behalf of the Defendant Nos. 1 and 2 that the suit filed is malafide as it is only after the business relations were strained the suit in question came to be filed by the Plaintiffs. The said stand is taken by the Defendants in the Written Statement. The Plaintiffs would obviously be dealing with the said case at the hearing of the suit. However, at the prima facie stage there is no material on record to indicate that it is on account of strained business relations between the Defendant No. 2 and the Plaintiff No. 2 that the suit came to be filed by the Plaintiffs. The Defendant No. 2 has not even mentioned the extent of the business between the Plaintiff No. 2 and the NGO "Vatsalya" with which the Defendant No. 2 is concerned. In juxtaposition the Plaintiffs have place adequate material on record to demonstrate the nuisance caused to them on account of bird feeding. In my view, therefore, there is no substance in the said contention of the Defendant Nos. 1 and 2. Hence even applying the judgment in Mandali Ranganna's case (supra) wherein the Apex Court has held that apart from consideration of the basic elements, the conduct of the parties is also a relevant consideration. The conduct of the Plaintiffs in the instant case cannot be said to be such as dis-entitling them to the discretionary relief of injunction.
19. In so far as the contention urged by the Defendant Nos. 1 and 2 that a mandatory order could not have been issued in respect of removal of tray. In my view, it is not as if such a relief cannot be granted. In the instant case the Plaintiffs have sought an injunction restraining the Defendant Nos. 1 and 2 from feeding the birds. Incidental to the said relief would be the relief of removal of the tray as without removal of the tray, the said relief of temporary injunction would have no meaning as birds by habit would still flock around the tray. In my view, the facts of the present case are such that they justify the grant of the said mandatory order as at the prima facie stage the Trial Court has come to the conclusion that there is a nuisance on account of feeding of the birds by the Defendant Nos. 1 and 2. The Trial Court was therefore within its powers to pass an order which would make the grant of temporary injunction meaningful. Hence the test laid down by the Apex Court in Kishore Kumar Khaitan's case (supra) on which reliance was placed by the Defendant No. 2 can be said to be satisfied in the instant case.
20. The Defendant No. 2 has justified the feeding of birds on the ground that she is an animal welfare activist and the Honorary Secretary of the All India Animal Welfare Association (AIAWA) since 1998 and runs a shelter/sterilization centre at Briihanmumbai Mahapalika's Dog Pound situated at Mahalaxmi Dhobi Ghat. Nobody can have a grievance about the love of the Defendant No. 2 for birds and animals. The question is whether she is entitled to feed the birds by placing a tray below her balcony window so as to cause nuisance to the other members of the Society in which she is residing. Howsoever, much one may want to feed birds and animals, the same would obviously have to be done in a manner as not to cause nuisance to the neighbours or other residents. It is well settled that a person cannot use his premises for causing nuisance to his neighbours or other residents (see Darshan Ram's case (supra). In the said case, the learned Judge referred to the famous English case of John Rylands and Jehu Horrocks Vs. Thomas Fletcher (1868) LR H 330, wherein it was held that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. In my view, the material produced by the learned counsel for the Appellants by way of fact sheets in respect of crows and pigeons has no relevance in so far as the present case is concerned. In the instant case, there is enough material at the prima facie stage to indicate that on account of bird feeding nuisance is caused to the Plaintiffs and other members of the Society. The Trial Court has therefore observed that the Defendant No.2 may feed the birds at some other place where no nuisance is likely to be caused to anybody. The Defendant No. 2 may consider the said suggestion of the Trial Court.
21. In my view having regard to the well settled principles applicable to the grant of temporary injunction the order passed by the Trial Court impugned in the above Appeal from Order does not call for any interference in the Appellate Jurisdiction of this Court. The Appeal from Order is accordingly dismissed. In view of the dismissal of the above Appeal from Order, Civil Application No. 1473 of 2013 does not survive and the same to accordingly stand disposed of as such.
However, since Writ Petition No. 11960 of 2012 which concerns the jurisdiction of the Trial Court is pending, the operation of the impugned order granting temporary injunction would be contingent on the result of the said Writ Petition; meaning thereby that in the event the Writ Petition filed by the Defendant No. 2 is allowed and it is held that the Trial Court does not have jurisdiction, in that event the injunction granted by the impugned order would cease to operate.
After Pronouncement :-
At this stage the learned counsel appearing on behalf of the Appellants/Applicants prays for continuation of the ad-interim order dated 29/11/2013. The learned counsel appearing on behalf of the Respondent Nos. 1 and 2 opposes the same. In the facts and circumstances of the present case, the said ad-interim order dated 29/11/2013, which is in operation, is continued for a period of four weeks from date.
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