In the present case, it has revealed from the
application, Ex. 8 that the plaintiff has banked upon a
judgment based on admission. Learned Judge found that the
aspect of nuisance etc. (with nomenclature whatsoever) was
not proved by admission and hence has dismissed the suit.
16] Now, while arguing this appeal, appellant has made a
grievance that if the learned trial Judge was satisfied
that the admission relied upon by plaintiff to be
foundation of a judgment and a decree favourable to the
plaintiff, was not adequate to grant a favourable decree
in the suit, the court should have relegated the plaintiff
to prove the claim.
17] At this stage, it is important to note that the
plaintiff, based on his own best judgment based on his
own assessment and wisdom, after consideration of facts as
pleaded by respective parties and due to total
voluntariness he wanted to have “judgment” based on an
admission be applied.
18] Plaintiff was sure and he fervently believed that
Admission of the defendant was worth a Judgment thereon.
Ordinarily a plaintiff who wants to succeed should have
craved and strived for proving before the court the breach
of obligation or violation of plaintiff's right and the
fact of nuisance insteading of risking and entering a
gamble of choosing to play a trick on defendant and on the
court too.
19] Had the plaintiff craved for a fair trial and a fair
judgment, after he ought to have stepped into witness box,
he would have chosen to lead evidence and proved his claim
in the suit.
Probably rather for sure, plaintiff knew fully well
his limitations, had he to step into witness box and bring
witnesses to prove fact of nuisance. It has to be believed
that the plaintiff had to make a judgment between
shouldering the burden to bring evidence to prove the claim
or to choose a short and skeptic route. Said short cut of
judgment on admission is proved in present case to be a
slippery path.
20] The plaintiff has chosen a short cut based on his own
judgment. No fault whatsoever can be attributed to the
court while applying for judgment based on Order XII Rule 6
of Civil Procedure Code.
21] Plaintiff could have made an alternate prayer that if
the admission relied upon by him was not adequate, the
plaintiff would opt to prove his claim in the suit, had the
plaintiff been in possession of evidence to support his
plea, obviously since he knew his strengths and weaknesses.
Since any such alternate prayer was not made, the approach
of the plaintiff was of hiding something and of seeking. In
this trick the plaintiff has failed and he is lamenting in
the coy of calamity invited by him.
22] Even otherwise it is not seen that the claim in the
suit was not in the nature of enforcement of an undeniable
right.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 328 OF 2013
Shri Shankar Parmeshwar Mistri ]
Vs.
1. Shri Jagdish Makwana ]
CORAM : A. H. JOSHI, J.
DATED : 9TH APRIL, 2013.
Citation; 2013 (4) ALL M R 56
1] Heard learned Advocate for appellant. Perused impugned
judgment, pleadings and records as produced at the time of
hearing.
2] Plaintiff filed Short Cause Suit No. 885 of 2010 in
1/10
the City Civil Court at Dindoshi (Borivali Division),
Goregaon, Mumbai.
3] Gist of the plaint and reliefs sought are as
follows :-
Plaintiff and the defendant no. 1 reside in the same
building and are next door neighbours. Defendant No.2 is
the owner of the Building. Defendant No.1 is running the
business of tailoring by use of three sewing machines.
Plaintiff suffered nuisance due to sound of sewing
machines. The plaintiff had filed complaint before the
police towards said nuisance. Thereafter he had filed suit
for injunction seeking a permanent injunction. Prayer
clause (a) reads as follows:-
“(a) That this Hon'ble Court be pleased to pass
the order directing the Defendant No. 1 to
stop the activity of stitching cloths from
his residence.”
(quoted prayer (a) of plaint – page 29 of paper
book)
4] Defendant No.1's averments in the written statement
is summarised as follows:
Sewing machines are used, on which defendant no.1's
wife does the sewing work for very limited purpose. Any
nuisance is not caused due to sound. The use of sewing
machine is done occasionally and from the date when the
room was occupied by the defendant.
2/10
5] The plaintiff filed an application under Order XII
Rule 6 of Civil Procedure Code (Ex. 8) for judgment on
admission as regards use of three sewing machines operated
with electricity used by defendant.
6] According to the plaintiff, since the defendant no. 1
has admitted use of sewing machine in the house and
plaintiff, being neighbour etc. and his suit was liable to
be decreed as prayed on said admission.
7] Application (Ex. 8) under Order XII Rule 6 was heard.
Learned Judge City Civil Court has taken cognizance of the
admission which according to the plaintiff has to be the
foundation of judgment in view of Order XII Rule 6 of
Civil Procedure Code. Learned Judge allowed application
Exhibit '8' and passed order thereon that the suit shall be
decided on admission. The learned Judge thereafter took up
the suit for pronouncement of judgment and delivered
separate reasoned judgment and decree. Learned Judge has
dismissed the suit.
8] The plaintiff – appellant is aggrieved due to the
dismissal of suit.
9] Appellant contends that 'judgment on admission' means
3/10
a “favourable decree” only based on admission.
10] After hearing the appellant and after perusal of
record tendered during hearing, this court has framed the
questions which arises for consideration, as follows:
(a) Was learned trial court right in dismissing the
suit when defendant's admission relied on by the
plaintiff was not sufficient to treat that the
claim in suit as admitted claims?
(b) Was learned trial court court bound to relegate
the plaintiff to prove his claim, though
plaintiff had not prayed for chance to prove the
claim and had craved for judgment only on
admission?
Discussion and reasons :
11] After the defendant files the written statement, the
plaintiff has to take steps to prove his claim. The
plaintiff may make a decision based on formation of own
judgment, if he wants to apply to the court for judgment on
admission.
Such a decision is to be plaintiff's own judgment
based on his prudence and own wisdom and then only the
plaintiff has to make an application under Order XII Rule
6 of Civil Procedure Code.
12] In present case, the choice was open to the plaintiff
to proceed with the suit by filing his affidavit of
evidence and summoning other witnesses to prove the fact or
facts in issue, and reliance on admission, if any, in the
written statement could always be available.
13] The facts in issue as had arisen in present suit
were:-
(a) Use of three electrically operated sewing
machines by the defendants in the room;
(b) Causing nuisance to the plaintiff by the
defendants by use of sewing machines;
(c) Right of the plaintiff to get an order of
injunction against the defendants against
causing nuisance by use of sewing machines,
14] Possessing and using sewing machine was an admitted
fact. The fact of possession and use of sewing machine
could not ipso facto constitute to be a breach / obligation
of any type or violation of right whatsoever. Any
injunction prayed against use of machines could be sought
only upon of proof of nuisance of degree and intensity
worth an order of injunction.
15] In the present case, it has revealed from the
application, Ex. 8 that the plaintiff has banked upon a
judgment based on admission. Learned Judge found that the
aspect of nuisance etc. (with nomenclature whatsoever) was
not proved by admission and hence has dismissed the suit.
16] Now, while arguing this appeal, appellant has made a
grievance that if the learned trial Judge was satisfied
that the admission relied upon by plaintiff to be
foundation of a judgment and a decree favourable to the
plaintiff, was not adequate to grant a favourable decree
in the suit, the court should have relegated the plaintiff
to prove the claim.
17] At this stage, it is important to note that the
plaintiff, based on his own best judgment based on his
own assessment and wisdom, after consideration of facts as
pleaded by respective parties and due to total
voluntariness he wanted to have “judgment” based on an
admission be applied.
18] Plaintiff was sure and he fervently believed that
Admission of the defendant was worth a Judgment thereon.
Ordinarily a plaintiff who wants to succeed should have
craved and strived for proving before the court the breach
of obligation or violation of plaintiff's right and the
fact of nuisance insteading of risking and entering a
gamble of choosing to play a trick on defendant and on the
court too.
19] Had the plaintiff craved for a fair trial and a fair
judgment, after he ought to have stepped into witness box,
he would have chosen to lead evidence and proved his claim
in the suit.
Probably rather for sure, plaintiff knew fully well
his limitations, had he to step into witness box and bring
witnesses to prove fact of nuisance. It has to be believed
that the plaintiff had to make a judgment between
shouldering the burden to bring evidence to prove the claim
or to choose a short and skeptic route. Said short cut of
judgment on admission is proved in present case to be a
slippery path.
20] The plaintiff has chosen a short cut based on his own
judgment. No fault whatsoever can be attributed to the
court while applying for judgment based on Order XII Rule 6
of Civil Procedure Code.
21] Plaintiff could have made an alternate prayer that if
the admission relied upon by him was not adequate, the
plaintiff would opt to prove his claim in the suit, had the
plaintiff been in possession of evidence to support his
plea, obviously since he knew his strengths and weaknesses.
Since any such alternate prayer was not made, the approach
of the plaintiff was of hiding something and of seeking. In
this trick the plaintiff has failed and he is lamenting in
the coy of calamity invited by him.
22] Even otherwise it is not seen that the claim in the
suit was not in the nature of enforcement of an undeniable
right.
23] In the days of unemployment and dire need of
entrepreneurship, if someone undertakes an activity and
enterprise, he could not be hindered, rather needs to be
encouraged. Moreover sound pollution in around the urban
population in day to day life is so excessive that the
noise of sewing machines could hardly be denoted to be
harsh and intolerable and excessive enough to destroy the
peace. The harshness of said noise and its pollution
certainly would be a question of fact, varying on each
situation and it has to be proved by legal evidence.
Intolerableness of pollution could have been proved by
direct evidence based on intensity in terms of the
decibels and duration which is the quotient of measurement
of intensity of sound thereof by use of equipments apart
from other primary evidence.
24] The plaintiff could have certainly secured evidence
to prove his plea of nuisance and may have succeeded in the
suit and now Plaintiff cannot blame any one including the
court, except himself.
25] The facts as regards nuisance were not admitted facts
and such suit could not have been decreed on admission of
single segregated fact without proof of alleged nuisance.
26] It is seen that “decree” meant final pronouncement by
court and does not mean that essentially every decree must
be and should always be favourably to the plaintiff.
Dismissal of suit, too is a decree.
27] The facts in issue as identified and noted by this
court in paragraph 13 were such that issue no. 1 was an
admitted fact in view of the contents of the written
statement.
(a) The fact in issue at point (b) and (c) were
the matter of onus of proof by the plaintiff.
Plaintiff due to his choice has failed in
discharging the same.
In the result, the facts in issue which constituted
the status of ingredient for grant of relief are not
proved.
28] Present is a simple case of plaintiff's election
between duty to prove and to choose by taking a risk, to
rely on admission, and has got the fruits he craved for.
Mostly plaintiff was satisfied that he does not have
evidence to prove his claim. Now he cannot take a stance
topsy-turvy and exert to resurrect to save his suit.
29] This appeal is seem to be continuation of same
attitude, lacking either strength and/or sincerity and for
sure is an exercise, vexatious in nature. Appeal has no
merit and is dismissed.
30] In the light of foregoing discussion, this court
answers the points formulated in paragraph 10 as follows:-
(a) The learned Judge was right in dismissing
the suit since the admission relied upon by
the plaintiff was not adequate to decree
the suit.
(b) The learned trial court was not bound to
relegate the plaintiff to prove the claim
since there was no prayer for that purpose
and that plaintiff had voluntarily chosen
the path of craving for judgment on a
inchoated admission.
31] It is clarified that since the suit was dismissed
without trial, it is clarified that no fact finding is done
by the trial court or by this court too.
Chandka (A. H. JOSHI, J.)
Print Page
application, Ex. 8 that the plaintiff has banked upon a
judgment based on admission. Learned Judge found that the
aspect of nuisance etc. (with nomenclature whatsoever) was
not proved by admission and hence has dismissed the suit.
16] Now, while arguing this appeal, appellant has made a
grievance that if the learned trial Judge was satisfied
that the admission relied upon by plaintiff to be
foundation of a judgment and a decree favourable to the
plaintiff, was not adequate to grant a favourable decree
in the suit, the court should have relegated the plaintiff
to prove the claim.
17] At this stage, it is important to note that the
plaintiff, based on his own best judgment based on his
own assessment and wisdom, after consideration of facts as
pleaded by respective parties and due to total
voluntariness he wanted to have “judgment” based on an
admission be applied.
18] Plaintiff was sure and he fervently believed that
Admission of the defendant was worth a Judgment thereon.
Ordinarily a plaintiff who wants to succeed should have
craved and strived for proving before the court the breach
of obligation or violation of plaintiff's right and the
fact of nuisance insteading of risking and entering a
gamble of choosing to play a trick on defendant and on the
court too.
19] Had the plaintiff craved for a fair trial and a fair
judgment, after he ought to have stepped into witness box,
he would have chosen to lead evidence and proved his claim
in the suit.
Probably rather for sure, plaintiff knew fully well
his limitations, had he to step into witness box and bring
witnesses to prove fact of nuisance. It has to be believed
that the plaintiff had to make a judgment between
shouldering the burden to bring evidence to prove the claim
or to choose a short and skeptic route. Said short cut of
judgment on admission is proved in present case to be a
slippery path.
20] The plaintiff has chosen a short cut based on his own
judgment. No fault whatsoever can be attributed to the
court while applying for judgment based on Order XII Rule 6
of Civil Procedure Code.
21] Plaintiff could have made an alternate prayer that if
the admission relied upon by him was not adequate, the
plaintiff would opt to prove his claim in the suit, had the
plaintiff been in possession of evidence to support his
plea, obviously since he knew his strengths and weaknesses.
Since any such alternate prayer was not made, the approach
of the plaintiff was of hiding something and of seeking. In
this trick the plaintiff has failed and he is lamenting in
the coy of calamity invited by him.
22] Even otherwise it is not seen that the claim in the
suit was not in the nature of enforcement of an undeniable
right.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 328 OF 2013
Shri Shankar Parmeshwar Mistri ]
Vs.
1. Shri Jagdish Makwana ]
CORAM : A. H. JOSHI, J.
DATED : 9TH APRIL, 2013.
Citation; 2013 (4) ALL M R 56
1] Heard learned Advocate for appellant. Perused impugned
judgment, pleadings and records as produced at the time of
hearing.
2] Plaintiff filed Short Cause Suit No. 885 of 2010 in
1/10
the City Civil Court at Dindoshi (Borivali Division),
Goregaon, Mumbai.
3] Gist of the plaint and reliefs sought are as
follows :-
Plaintiff and the defendant no. 1 reside in the same
building and are next door neighbours. Defendant No.2 is
the owner of the Building. Defendant No.1 is running the
business of tailoring by use of three sewing machines.
Plaintiff suffered nuisance due to sound of sewing
machines. The plaintiff had filed complaint before the
police towards said nuisance. Thereafter he had filed suit
for injunction seeking a permanent injunction. Prayer
clause (a) reads as follows:-
“(a) That this Hon'ble Court be pleased to pass
the order directing the Defendant No. 1 to
stop the activity of stitching cloths from
his residence.”
(quoted prayer (a) of plaint – page 29 of paper
book)
4] Defendant No.1's averments in the written statement
is summarised as follows:
Sewing machines are used, on which defendant no.1's
wife does the sewing work for very limited purpose. Any
nuisance is not caused due to sound. The use of sewing
machine is done occasionally and from the date when the
room was occupied by the defendant.
2/10
5] The plaintiff filed an application under Order XII
Rule 6 of Civil Procedure Code (Ex. 8) for judgment on
admission as regards use of three sewing machines operated
with electricity used by defendant.
6] According to the plaintiff, since the defendant no. 1
has admitted use of sewing machine in the house and
plaintiff, being neighbour etc. and his suit was liable to
be decreed as prayed on said admission.
7] Application (Ex. 8) under Order XII Rule 6 was heard.
Learned Judge City Civil Court has taken cognizance of the
admission which according to the plaintiff has to be the
foundation of judgment in view of Order XII Rule 6 of
Civil Procedure Code. Learned Judge allowed application
Exhibit '8' and passed order thereon that the suit shall be
decided on admission. The learned Judge thereafter took up
the suit for pronouncement of judgment and delivered
separate reasoned judgment and decree. Learned Judge has
dismissed the suit.
8] The plaintiff – appellant is aggrieved due to the
dismissal of suit.
9] Appellant contends that 'judgment on admission' means
3/10
a “favourable decree” only based on admission.
10] After hearing the appellant and after perusal of
record tendered during hearing, this court has framed the
questions which arises for consideration, as follows:
(a) Was learned trial court right in dismissing the
suit when defendant's admission relied on by the
plaintiff was not sufficient to treat that the
claim in suit as admitted claims?
(b) Was learned trial court court bound to relegate
the plaintiff to prove his claim, though
plaintiff had not prayed for chance to prove the
claim and had craved for judgment only on
admission?
Discussion and reasons :
11] After the defendant files the written statement, the
plaintiff has to take steps to prove his claim. The
plaintiff may make a decision based on formation of own
judgment, if he wants to apply to the court for judgment on
admission.
Such a decision is to be plaintiff's own judgment
based on his prudence and own wisdom and then only the
plaintiff has to make an application under Order XII Rule
6 of Civil Procedure Code.
12] In present case, the choice was open to the plaintiff
to proceed with the suit by filing his affidavit of
evidence and summoning other witnesses to prove the fact or
facts in issue, and reliance on admission, if any, in the
written statement could always be available.
13] The facts in issue as had arisen in present suit
were:-
(a) Use of three electrically operated sewing
machines by the defendants in the room;
(b) Causing nuisance to the plaintiff by the
defendants by use of sewing machines;
(c) Right of the plaintiff to get an order of
injunction against the defendants against
causing nuisance by use of sewing machines,
14] Possessing and using sewing machine was an admitted
fact. The fact of possession and use of sewing machine
could not ipso facto constitute to be a breach / obligation
of any type or violation of right whatsoever. Any
injunction prayed against use of machines could be sought
only upon of proof of nuisance of degree and intensity
worth an order of injunction.
15] In the present case, it has revealed from the
application, Ex. 8 that the plaintiff has banked upon a
judgment based on admission. Learned Judge found that the
aspect of nuisance etc. (with nomenclature whatsoever) was
not proved by admission and hence has dismissed the suit.
16] Now, while arguing this appeal, appellant has made a
grievance that if the learned trial Judge was satisfied
that the admission relied upon by plaintiff to be
foundation of a judgment and a decree favourable to the
plaintiff, was not adequate to grant a favourable decree
in the suit, the court should have relegated the plaintiff
to prove the claim.
17] At this stage, it is important to note that the
plaintiff, based on his own best judgment based on his
own assessment and wisdom, after consideration of facts as
pleaded by respective parties and due to total
voluntariness he wanted to have “judgment” based on an
admission be applied.
18] Plaintiff was sure and he fervently believed that
Admission of the defendant was worth a Judgment thereon.
Ordinarily a plaintiff who wants to succeed should have
craved and strived for proving before the court the breach
of obligation or violation of plaintiff's right and the
fact of nuisance insteading of risking and entering a
gamble of choosing to play a trick on defendant and on the
court too.
19] Had the plaintiff craved for a fair trial and a fair
judgment, after he ought to have stepped into witness box,
he would have chosen to lead evidence and proved his claim
in the suit.
Probably rather for sure, plaintiff knew fully well
his limitations, had he to step into witness box and bring
witnesses to prove fact of nuisance. It has to be believed
that the plaintiff had to make a judgment between
shouldering the burden to bring evidence to prove the claim
or to choose a short and skeptic route. Said short cut of
judgment on admission is proved in present case to be a
slippery path.
20] The plaintiff has chosen a short cut based on his own
judgment. No fault whatsoever can be attributed to the
court while applying for judgment based on Order XII Rule 6
of Civil Procedure Code.
21] Plaintiff could have made an alternate prayer that if
the admission relied upon by him was not adequate, the
plaintiff would opt to prove his claim in the suit, had the
plaintiff been in possession of evidence to support his
plea, obviously since he knew his strengths and weaknesses.
Since any such alternate prayer was not made, the approach
of the plaintiff was of hiding something and of seeking. In
this trick the plaintiff has failed and he is lamenting in
the coy of calamity invited by him.
22] Even otherwise it is not seen that the claim in the
suit was not in the nature of enforcement of an undeniable
right.
23] In the days of unemployment and dire need of
entrepreneurship, if someone undertakes an activity and
enterprise, he could not be hindered, rather needs to be
encouraged. Moreover sound pollution in around the urban
population in day to day life is so excessive that the
noise of sewing machines could hardly be denoted to be
harsh and intolerable and excessive enough to destroy the
peace. The harshness of said noise and its pollution
certainly would be a question of fact, varying on each
situation and it has to be proved by legal evidence.
Intolerableness of pollution could have been proved by
direct evidence based on intensity in terms of the
decibels and duration which is the quotient of measurement
of intensity of sound thereof by use of equipments apart
from other primary evidence.
24] The plaintiff could have certainly secured evidence
to prove his plea of nuisance and may have succeeded in the
suit and now Plaintiff cannot blame any one including the
court, except himself.
25] The facts as regards nuisance were not admitted facts
and such suit could not have been decreed on admission of
single segregated fact without proof of alleged nuisance.
26] It is seen that “decree” meant final pronouncement by
court and does not mean that essentially every decree must
be and should always be favourably to the plaintiff.
Dismissal of suit, too is a decree.
27] The facts in issue as identified and noted by this
court in paragraph 13 were such that issue no. 1 was an
admitted fact in view of the contents of the written
statement.
(a) The fact in issue at point (b) and (c) were
the matter of onus of proof by the plaintiff.
Plaintiff due to his choice has failed in
discharging the same.
In the result, the facts in issue which constituted
the status of ingredient for grant of relief are not
proved.
28] Present is a simple case of plaintiff's election
between duty to prove and to choose by taking a risk, to
rely on admission, and has got the fruits he craved for.
Mostly plaintiff was satisfied that he does not have
evidence to prove his claim. Now he cannot take a stance
topsy-turvy and exert to resurrect to save his suit.
29] This appeal is seem to be continuation of same
attitude, lacking either strength and/or sincerity and for
sure is an exercise, vexatious in nature. Appeal has no
merit and is dismissed.
30] In the light of foregoing discussion, this court
answers the points formulated in paragraph 10 as follows:-
(a) The learned Judge was right in dismissing
the suit since the admission relied upon by
the plaintiff was not adequate to decree
the suit.
(b) The learned trial court was not bound to
relegate the plaintiff to prove the claim
since there was no prayer for that purpose
and that plaintiff had voluntarily chosen
the path of craving for judgment on a
inchoated admission.
31] It is clarified that since the suit was dismissed
without trial, it is clarified that no fact finding is done
by the trial court or by this court too.
Chandka (A. H. JOSHI, J.)
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