NIRMALA DEVI Vs. VIRAWATI

JUDGEMENT

(1.) The suit property i.e.. House No. 1373 belongs to the defendants and under law and Constitution they can put it to any lawful use. Earlier when defendants were restrained from running the Guest House the main consideration on the basis of which that order was passed was that the defendants were running the Guest House in violation of law of the land and what is not permitted by law cannot be regularised by the court. That chapter is closed. In order to entitle the plaintiff to a restraint order of the kind and quality now asked for she has to show a prima facie case and has also to indicate that there is likelihood of an irreparable injury being caused to her and that the balance of convenience is in her favour. It may, however, be pointed out that the mere existence of a prima facie case by itself will not entitle the plaintiff to a restraint order. The aspects of comparative equities, balance of convenience and irreparable injury also have to be satisfied. The plaintiff has to show that the user under challenge is causing inconvenience, annoyance or is capable of becoming a source of nuisance or is likely to interfere in the peaceful enjoyment of-her property. The inconvenience, annoyance and nuisance must as such be real and potent and not imaginary or fanciful. A restraint order depriving a person of lawful enjoyment of his property is a grave and serious matter as it will have the effect of practi- cally disabling and depriving a party from the enjoyment of his property in a lawful manner pending adjudication of the claims of the parties. It is thus too serious a matter to be given a casual or a routine treatment.

(2.) As indicated above, the existence of a prima facie case by itself would not entitle the plaintiff to seek an order of restraint as she will have to show that the balance of convenience is in her favour and that if the defendants are not prevented from carrying on the impugned activity it is likely to result in an irreparable loss. The plaintiff besides this will have to show that such activity is likely to become a source of real nuisance and not merely imaginary and fanciful injury. These requirements do not appear to be satisfied in this case. It is hardly possible to characterize the commercial activities which the defendants are proposing to start as by itself causing nuisance or annoyance.

(3.) These activities by their very nature are run for a limited number of hours and the least that can be said is that these commercial activities per se are not such as to result in nuisance, annoyance or inconvenience. In such an event the plaintiff has to indicate as to in what manner it is going to cause inconvenience or nuisance to her. In the present case the nuisance or inconvenience apprehended by the plaintiff in any event is not of such a nature as would justify a preventive action by total deprivation of the defendants to make use of their property. I have earlier said that the plaintiff herself has four offices in her part of this premises. How then can she deprive the defendants from using their property in a similar manner. The nature of such activity obviously is such that there is no imminent danger of irreparable injury. The plaintiff has no justification to seek an ad-interim injunction against such lawful activities of-the defendants on the strength of the earlier order that was passed for different considerations and under different circumstances.