Sunday, 18 September 2016

Whether court can grant temporary mandatory injunction for removal of tray from balcony used for feeding birds?

Grant of temporary mandatory injunction to restrain
nuisance. Whether a defendant 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 ? Whether pending suit for grant of permanent
injunction for causing nuisance by bird feedings, can
temporary mandatory injunction be granted for removal of
tray from balcony used for feeding birds even if there is no
prayer in the suit plaint for removal of tray ?
Held :- Considered 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 in main suit and therefore the
Plaintiffs are entitled seek temporary mandatory injunction.
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. Relied upon
the famous English case of John Rylands and Jehu Horrocks v. 8
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 faice answerable for all the damage which is the
natural consequence of its escape. In the instant case, there
was 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 may feed the birds at
some other place where no nuisance is likely to be caused to
Bombay High Court
Padma Thakore And Anr vs Dilip Sumanlal Shah And Ors on 12 July, 2016

Bench: R.M. Savant
Read full judgment:Click here
Citation: 2016 SCC OnLine Bom 4785
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