Saturday 9 April 2022

Can the plaintiff seek a mandatory injunction to remove malba, garbage, etc. thrown on adjacent land as per 41(j) of the Specific relief Act?

  In the present case the plaintiffs are not suing to protect any possession of theirs over the vacant land. They are instead suing for removal of the garbage/debris in the vacant land behind their flat and for injunction for a restraint on the defendants from throwing the garbage/debris. A person certainly has a right to clean space at the entrance or at the back of his house. That apart, given the averments in the plaint and the reliefs sought for, I do not think that it was a case for rejection of plaint.”

6. The burden of Mr. Vikas Tomar’ s song is that the respondents

had no personal interest over the land, on which the malba/garbage etc. was allegedly being deposited as they claimed no right, title or possession in respect thereof. He submits that, in such circumstances, Section 41(j) of the Specific Relief Act operates as an absolute proscription against grant of injunction.

7. I am unable to agree.

8. Section 41(j) of the Specific Relief Act proscribes grant of

injunction “when the plaintiff has no personal interest in the matter”. The word “matter” is of wide and compendious scope, and would include everything, which is subject matter of the suit and grievance expressed therein. B. Ramanath Iyyer’ s Law Laxican defines “matter” as “a fact or facts constituting a whole or a part of a ground of action or defence”. Vishwanathan v. Abdul Wajid AIR 1963 SC 1

9. If the plaintiff is a complete stranger, having no personal

interest with respect to the grievance expressed in the suit, being “the

matter” in the suit, no doubt, Section 41(j) operates as a proscription

against grant of injunction. The words “the matter” cannot, however,

in my view, be conflict with the property forming subject matter of thesuit. The grievance of the plaintiffs, as voiced in the suit, and dehors holds that “the expression “matter” is not equivalent to “subject matter”; it means the right claimed.” The right claimed by the respondents in their suit was, clearly, avoidance of the nuisance that had resulted as a consequence of the alleged dumping, by the appellants, of malba and garbage onthe land adjoining their premises.its merits, was that the respondents had committed an actionable tort which, if proved, could even amount to nuisance.

10. Inasmuch as the plaintiffs were also claiming that they were

enjoying the land in which the malwa/garbage etc. was being allegedly deposited, dehors the issue of the respondents’ right to possession over the land, it cannot be said that they had no personal interest in respect of the matter, i.e. the grievance ventilated in the suit.

11. To my mind, any other interpretation would be unduly

narrowed and not justified by the words used in Section 41(j) of the Specific Relief Act.

12. I am of the view, therefore, that the learned ADJ was correct in his opinion expressed by him, in the passages from the impugned order extracted hereinabove, that the respondents cannot be said to have had no personal interest in the matter, so as to justify summary dismissal of the suit under Order VII Rule 11(a) of the CPC read with Section 41(j)of the Specific Relief Act.

IN THE HIGH COURT OF DELHI AT NEW DELHI

RSA 233/2019 and CM Appl. 50920/2019 (stay)

SANJAY CHUGH & ANR  Vs RAM KISHAN 

CORAM:

HON'BLE MR. JUSTICE C.HARI SHANKAR

Dated: 30.03.2022

1. This second appeal under Section 100 of the Code of Civil

Procedure, 1908 (CPC), assails an order dated 26th September, 2019,

passed by the learned Additional District Judge (“the learned ADJ”) in

Misc Appl 576/2018, whereby the learned ADJ has reversed an order

dated 20th

2. The plaint, from which these proceedings emanate, was

preferred by the respondents against the appellants, seeking mandatory

injunction, directing the appellants to remove malba, garbage etc.,

which they were alleged to have thrown in open land adjacent to the

respondents’ premises and for permanently restraining the appellants

from throwing any such malwa, garbage etc. at the said land. It was

specifically alleged, in para 17 of the plaint, that consequent to certain

disputes having arisen between the appellants and the respondents,

whereby the appellants were restrained, as a result of which the

appellants were allegedly thwarted in their attempts to raise

July, 2018, passed by the learned JSCC-ASCJ-GJ (“the

learned Civil Judge”).


construction on the open land, they started depositing garbage therein.

The plaint also asserts that the respondents had, in this context,

addressed a written complaint to the Police Station Mayur Vihar on

13th November, 2012 but that the nuisance continued.

3. The learned Civil Judge, vide order dated 20th July, 2018,

dismissed the suit as not being maintainable in view of Section 41(j)

of the Specific Relief Act, 1963, which proscribes grant of injunction

“when the plaintiff has no personal interest in the matter”.

4. On the ground that the respondents have no personal interest in

the matter, the learned Civil Judge rejected the suit for want of

existence of a valid cause of action, exercising jurisdiction under

Order VII Rule 11(a) of the CPC. Paras 2 to 6 of the order of the

learned Civil Judge read thus:

“2. In paragraph 4 of the plaint of this suit, the plaintiffs

have themselves pleaded that they have no right, title or

interest in respect of the open land shown in the site plan filed

along with the plaint and they have trespassed upon the said

land, just like the other owners of flats of ground floors, of the

locality.

3. Along with the plaint of this suit, the plaintiffs have

filed an Order dated 12.07.2012, passed by Dr. Saurabh

Kulshrestha, the then Ld. Commercial Civil Judge, East

District, KKD Courts, Delhi in a previous suit filed by the

plaintiffs against the defendants, seeking reliefs of injunctions

qua the open land shown in the site plan filed along with the

plaint. In the said Order, Dr. Saurabh Kulshrestha, the then

Ld. Commercial Civil Judge, East District, KKD Courts,

Delhi has observed that the plaintiffs have no exclusive rights

in respect of the open land shown in the site plan filed along

with the plaint.


4. From the pleadings made in paragraph 4 of the plaint

and from the observations made by Dr. Saurabh Kulshrestha,

the then Ld. Commercial Civil Judge, East District, KKD

Courts, Delhi in the aforesaid Order, I am convinced that the

plaintiffs have no personal right, title or interest, in respect of

the open land shown in the site plan filed along with the

plaint.

5. In Section 41(j) of the Specific Relief Act, 1963, it is

specifically provided that no injunction can be granted when

the plaintiff has no personal interest in the matter.

6. Keeping in view the fact that the plaintiffs have no

personal right, title or interest in respect of the open land

shown in the site plan filed along with the plaint and keeping

in view the fact that Section 41(j) of the Specific Relief Act,

1963 does not permit this Court to grant any injunction to a

plaintiff having no personal interest in the matter, the plaint of

this suit is rejected under Order VII Rule 11(a) of CPC, 1908.

After preparation of decree sheet by the Reader, the file shall

be consigned to the record room.”

5. The respondents appealed to the learned ADJ who, by the

impugned order dated 26th

7. Ld. Trial Court in the impugned order noted that in a

previous suit between the parties, the Court of Dr. Saurabh

Kulshreshtha, the then Ld. Commercial Civil Judge, had held

that the plaintiffs had no personal right, title or interest in the

September, 2019, reversed the view of the

learned Civil Judge, reasoning thus:

“6. The impugned order of the Trial Court cannot be

sustained. Plaintiffs do have a right to clean surroundings

adjoining their house. They have a right to clean environment.

It would not be correct to say that an occupant of a residential

property can have no remedy under the law for garbage/debris

lying at their entrance or in their immediate backyard. It

would also not be correct to say that a person can have no

remedy under the law for removal of garbage/debris lying in

front of their house or at the back of their house as the land

underneath the front and the back of the house may not

belong to him. To my mind, this would be an erroneous view

to take.


said property. I have gone through the said order passed by

Dr. Saurabh Kulshreshtha, the then Ld. Commercial Civil

Judge which is dt. 12.07.2012. That order was passed in a

totally different context on a temporary injunction

application. The plaintiffs had prayed to restrain the

defendants from putting a lock on the iron gate of the garden,

from entering the garden, from destroying the garden, from

removing lock of iron gate, from raising illegal construction

over the iron gate. It was in this context that the Court of Dr.

Saurabh Kulshreshtha, the then Ld. Commercial Civil Judge

had observed that plaintiffs have no exclusive settled

possession over the vacant land/backyard and therefore they

cannot restrain the defendants from enjoyment of the said

land/garden. However, vide the same order the defendants

were restrained from raising unauthorised construction in the

vacant land and it was also directed that no resident, including

the plaintiffs and the defendants, shall put a lock on the iron

gate. This order passed by the Court of Dr. Saurabh

Kulshreshtha, the then Ld. Commercial Civil Judge does not

mean and cannot mean that a person cannot sue for clean

surroundings in the space in the front or at the back of their

house. This order also cannot be construed to mean a person

has no right to clean surroundings.

8. Respondent no. 1 Dr. Sanjay Chugh relied on a

judgment of Premji Ratansey Shah & Ors. Vs. Union of India

& Ors. (1994) 5 see 547. This judgment holds that injunction

.is an equitable and discretionary relief and that an injunction

cannot be issued in favour of trespasser to protect his

possession as he has no personal interest in the matter. This

judgment is of no avail. In the present case the plaintiffs are

not suing to protect any possession of theirs over the vacant

land. They are instead suing for removal of the garbage/debris

in the vacant land behind their flat and for injunction for a

restraint on the defendants from throwing the garbage/debris.

A person certainly has a right to clean space at the entrance or

at the back of his house. That apart, given the averments in

the plaint and the reliefs sought for, I do not think that it was

a case for rejection of plaint.”

6. The burden of Mr. Vikas Tomar’ s song is that the respondents

had no personal interest over the land, on which the malba/garbage

etc. was allegedly being deposited as they claimed no right, title or

possession in respect thereof. He submits that, in such circumstances,

Section 41(j) of the Specific Relief Act operates as an absolute

proscription against grant of injunction.

7. I am unable to agree.

8. Section 41(j) of the Specific Relief Act proscribes grant of

injunction “when the plaintiff has no personal interest in the matter”.

The word “matter” is of wide and compendious scope, and would

include everything, which is subject matter of the suit and grievance

expressed therein. B. Ramanath Iyyer’ s Law Laxican defines “matter” as “a fact or facts constituting a whole or a part of a ground of action or defence”. Vishwanathan v. Abdul Wajid AIR 1963 SC 1

9. If the plaintiff is a complete stranger, having no personal

interest with respect to the grievance expressed in the suit, being “the

matter” in the suit, no doubt, Section 41(j) operates as a proscription

against grant of injunction. The words “the matter” cannot, however,

in my view, be conflict with the property forming subject matter of thesuit. The grievance of the plaintiffs, as voiced in the suit, and dehors holds that “the expression “matter” is not equivalent to “subject matter”; it means the right claimed.” The right claimed by the respondents in their suit was, clearly, avoidance of the nuisance that had resulted as a consequence of the alleged dumping, by the appellants, of malba and garbage onthe land adjoining their premises.its merits, was that the respondents had committed an actionable tort

which, if proved, could even amount to nuisance.

10. Inasmuch as the plaintiffs were also claiming that they were

enjoying the land in which the malwa/garbage etc. was being allegedly

deposited, dehors the issue of the respondents’ right to possession over

the land, it cannot be said that they had no personal interest in respect

of the matter, i.e. the grievance ventilated in the suit.

11. To my mind, any other interpretation would be unduly

narrowed and not justified by the words used in Section 41(j) of the

Specific Relief Act.

12. I am of the view, therefore, that the learned ADJ was correct in

his opinion expressed by him, in the passages from the impugned

order extracted hereinabove, that the respondents cannot be said to

have had no personal interest in the matter, so as to justify summary

dismissal of the suit under Order VII Rule 11(a) of the CPC read with Section 41(j)of the Specific Relief Act.

13. In my view, no substantial question of law arises for

consideration in this appeal. The appeal is, accordingly, dismissed.

Miscellaneous application also stands disposed of.

C.HARI SHANKAR, J

MARCH 30, 2022


Print Page

No comments:

Post a Comment