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Judgment
A.N. Venugopala Gowda, J.—Respondent/Plaintiff has filed O.S. No. 612/2009 in the Court of Civil Judge (Jr. Divn.,) Mangalore, against the Petitioner/Defendant. The suit is one for permanent injunction. Plaintiff filed I.A No. 2 to pass an order of temporary injunction. The Petitioner filed written statement and objection statement to LA No. 2. The trial court allowed LA No. 2 and restrained the Petitioner from running lathe machine workshop near the plaint schedule premises. Aggrieved, the Petitioner filed Misc. Appeal in the court below. Finding the appeal to be devoid of merit, by confirming the order put in challenge, the court below has dismissed the appeal. Feeling aggrieved, the Defendant has filed these writ petitions.
Sri G. Balakrishna Shastry, learned Counsel appearing for the Petitioner contended that the Plaintiff had complained to the Mahanagarapalike, upon which an enquiry was held and finding that there is no nuisance being caused, licence was issued to the Petitioner on 15.07.2009 and the same has been renewed and in the circumstances, the courts below have acted illegally in passing the impugned orders. Learned Counsel contended that the impugned orders being perverse and illegal are liable to be quashed.
After hearing G. Balakrishna Shastry for sometime, by an order dated 19.11.2010, Sri K.V. Narasimhon, learned standing counsel for the Mangalore Mahanagarapalike was directed to obtain the record pertaining to the issue of notices as at Annexures L & M and state the further course of action if-any taken pursuant to the said notices. Sri K.V. Narasimhan made available copy of a note dated 04.06,2009 placed before the Public Health, Education and Social Justice Standing Committee of Mangalore Mahanagara Palike and also the Trade Licence issued to the Petitioner for the period 01.04.2010 to 31.03.2011 to run M.R. Engineering Works i.e., a welding shop at Door No. 1-1-1, 1-1-2 at Kuloor Ferry Road, Kottara, Mangalore.
I have perused the writ petition papers.
Plaintiff has alleged that her building is abutting to the Defendant''s workshop wherein the Defendant carried on engineering works by using machines from 8:30 a.m to 9:00..p.m.,which generated unbearable noise, smoke; dust and other floating particles, which caused unbearable inconvenience, nuisance and health hazard, due to which they are unable to lead a normal life. The Defendant contended that, he is having a small workshop and there is a small lathe machine, which does not create any sound or dust. It was further contended that, there is five feet gap between the Plaintiff''s wall and tire Defendant''s workshop and that the shop is located in a commercial zone, wherein there are nine workshops situated by the side of the road.
The trial court has observed that, the Defendant''s licence was only for the period for 2009 - 2010 and that Defendant was carrying on the business without having valid licence. By noticing a letter dated 30.06.2009 of the Pollution Control Board, wherein the Defendant was warned from running the workshop, with an advice to carry on the business without causing much sound and noise, it was opined that, Plaintiff has prima facie case and balance of convenience. It was further held that, Plaintiff would suffer irreparable injury. As a result, I.A No. 2 was allowed. The court below has concurred with the said findings.
The point for consideration is :
Whether the impugned orders are perverse and illegal?
The record made available by Sri K.V. Narasimhan would clearly show that, the Mangalore Mahanagara Palike has issued the trade licence to the Petitioner on 01.03.2010 for the period 01.04.2010 to 31.03.2011, to carry on welding shop - engineering works in the name M.R. Engineering Works at premises No. 1-1-1, 1-1-2, Kuloor Ferry Road, Kottara, Mangalore. Both the courts below have not noticed the said document. The said licence was issued pursuant to the resolution passed by the Public Health, Education and Social Justice Standing Committee of Mangalore Mahanagara Palike.
Indisputably, Petitioner had the trade licence for the period 2009 - 2010 i.e., on the date the suit was instituted. The standing committee of Mangalore Mahanagara Palike has passed the resolution dated 26.06.2009 to renew the trade licence of the Petitioner. The competent authority has issued trade licence on 01.03.2010, which is valid upto 31.03.2011. The courts below, without noticing the fact that the Petitioner has been running the engineering works by obtaining the licence from the Mangalore Mahanagara Palike, have passed the impugned orders, which are arbitrary and illegal.
No record has been produced to show that the Pollution Control Board had directed the Petitioner to close the welding shop - engineering works at the aforesaid premises. The authority to issue the trade licence is Mangalore Mahanagara Palike. The Petitioner is having a valid licence to run the engineering works - welding shop upto 31.03.2011. In the circumstances, the Plaintiff has no prima facie case against the Defendant. In the absence of prima facie case, the Plaintiff is not entitled to an order of temporary injunction. The Petitioner, who was running the welding shop by obtaining the licence from the competent authority, would suffer greater prejudice. The balance of convenience lies in favour of the Petitioner, since he was running the welding shop - engineering works by obtaining licence and having employed men and made investment. Even the workmen employed by the Petitioner would suffer for lack of employment due to the closure of the workshop. In the circumstances, the Petitioner would suffer irreparable injury. The courts below have not considered the matter in the correct perspective. Relevant material has been omitted from consideration on account of the misdirection adopted in the matter. The impugned orders are perverse and illegal.
In the result, the writ petitions are allowed and the impugned orders are quashed. I.A No. 2 filed in the suit being devoid of merit shall stand dismissed.
Since the pleadings are complete, the trial court is directed to decide the suit with utmost expedition and at any event, within a period of four months from the date a copy of this order is supplied to it. The Petitioner shall place on record of the suit, a copy of this order before 03.01.2011, for compliance.
It is made clear that, the findings recorded herein are limited for consideration of the prayer in I.A No. 2 filed in the suit and shall not be construed as expression of opinion on the merits of case of either of the parties. The suit shall be decided by appreciating the evidence that may be placed on record by the parties.
No costs.