Civil Revision No.5612 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5612 of 2007 (O&M) Date of decision: 19.03.2009 Sunil Kumar @ Sunil Dutt .............Petitioner Vs. Sh. Daljit Rai Batra and another ............Respondents Present: Mr. Bhag Singh, Advocate for the petitioner. Ms. Kiran Bala Jain, Advocate for the respondents. CORAM: HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K.KANNAN, J. 1. The decree-holder, who had obtained through a consent terms a permanent decree for injunction in the following terms:- “It is ordered that in view of the statements of the counsel for the parties and the defendant No.1, the plaintiff's suit for permanent injunction is decreed to the extent that the defendants shall not install or operate the machinery in their premises marked ADIFE shown in the site plan Ex.C1. The distance between ADI and EF will be 10 ft. The defendants shall only be entitled to install and operate motorized lathes. Parties shall bear their respective costs of the suit.” 2. The suit itself appears to have been filed on 03.10.1968 and the decree was passed in the year 1972. From the reading of the decree, it is evident that the plaintiff had complained of some Civil Revision No.5612 of 2007 (O&M) -2- nuisance and the parties had decided that the defendant shall not install or operate a machinery in the premise immediately adjoining the wall marked ADIEF in the site plan and that the defendant shall be entitled only to install and operate motorized lathes at a distance, which will be not less than 10 ft. from the boundary wall. Several years have rolled by and a subsequent purchaser put the property to a different user. He had set up ice plant in the premises, which was the subject of complaint by the decree-holder in execution. Execution was laid against the judgment-debtor and the subsequent purchaser on the basis that a decree for permanent injunction is permanent in its true sense and it will bind any person claiming under the judgment- debtor also. 3. At various times, when the parties have been litigating, the Courts have sought assistance through reports of Local Commissioners. In this case also after the notice of motion was made, an advocate commissioner had been appointed to inspect the property and to give a report with site plan. The direction made at the time of such admission, was pointedly on the following aspects:- “i) Whether there is any motorized machinery or not within a distance of 10 feet from the common wall? ii) Whether there is any other motorized machinery in any other part of the premises? If so, its description and nature. iii) Whether any construction adjoins the common wall, as the petitioner alleges that the residential Civil Revision No.5612 of 2007 (O&M) -3- construction is at a distance of 10 feet from the common wall? iv) Whether there are any cracks and damp patches in the common wall or in the construction towards the respondent's side? v) About the location of the petitioner's office. 4. The commissioner had carried out the inspection and given a report as regards each one of the directions given by the Court. The relevant portion of the report is as follows:- “That it is worthwhile to mention here that there is no common wall as such. Rather, the petitioner and respondents have constructed their respective walls which are adjacent to each other. The wall of the petitioner is separate and 9” thick whereas the adjacent wall of the respondent is 6” thick. That in reply to query no.1 it is submitted that there is no motorized machinery within the distance of 10 feet from the said common wall. That in reply to query no.2 it is submitted that there is a cooling coil which also consists of small compressor at a distance of 19 feet and there is another compressor (motorside machinery) in the premises of the petitioner and electric motor attached with the compressor which is at a distance of 22 ½ feet from the said common wall. The said compressor is in cylindrical shape and it seems to be in non working condition since long. Further Civil Revision No.5612 of 2007 (O&M) -4- there is an electric motor to fill the water in the water tank which is at a distance of more than 10 feet from the said common wall. That in reply to query no.3 it is submitted that there is an open courtyard of width 11 feet 9 ½” from the said common wall on the respondent side and the residential construction of the respondent is at a distance of 11 feet 9 ½” from the said common wall. That in reply to query no.4 it is submitted that there are cracks and damp patches on the both sides of the said common wall. Further on inspecting the house of Sh. Daljit Rai Batra advocate (respondent), damp patches were seen on the walls. On inspection of the office of Mr. D.R. Batra, Advocate, no cracks or dampness was seen on walls. That in reply to query no.5 it is submitted that the office of Sh. D.R. Batra, Advocate is towards the southern side and at a distance of 10 feet from the said common wall.” 5. It is seen from the report that there is no violation of the terms of the decree. It must be remembered that at the time when the suit had been filed and a decree was passed, it was with reference to a particular type of installation and running of a lathe. The decree cannot be understood as meaning that the judgment-debtor or his successor could not carry on any other type of business. The reference to 10 feet distance where any machinery could have been installed itself must be understood only to ensure that plaintiff ought Civil Revision No.5612 of 2007 (O&M) -5- not to be given any nuisance by a proximate installation within the property that could cause nuisance to the plaintiff. 6. The decree must also be so understood to conform to what the law allows for and ought not to be stretched to impinge of what the law specifically prohibits. The Contract Act itself prohibits any agreement in restraint to be void. This is stated only to bring home the point that direction in the deree that the defendant shall only be entitled to install motorized lathe must be understood in the context of plaintiff's suit for injunction and to secure abatement of nuisance. It could not be so understood to mean that doing any other business or placing any other material in the defendant's own property would also be barred. It assumes significance because the subsequent purchaser from the judgment-debtor has not placed any lathe but the report and the site plan drawn shows that the subsequent purchaser who is the 2nd respondent has placed ice freezing boxes in the defendant's own territory but adjacent to the plaintiff's house. Learned counsel appearing for the decree-holder points out that the location of the freezing boxes are such that it causes dampness in the wall and the commissioner had found that there are cracks and damp patches on both sides of the common wall. The existence of dampness or cracks by themselves cannot be understood as resultant to mere placing of ice freezing boxes within the premises of the 2nd respondent. 7. Learned counsel appearing for the respondent has strong reservation and has also filed objections to the report filed by the commissioner. In support of her contention, learned counsel for the respondent refers to a decision of Bombay High Court in Yashodabai Civil Revision No.5612 of 2007 (O&M) -6- Ganesh Naik Gaunekar Vs. Gopi Mukund Naik 2003(1) CCC 264 that a decree for injunction has a permanent and perpetual life and it could be put in execution at nay time to prevent breach or apprehended breach. A similar position of law is made in Ram Charan Sikdar Vs. Sm. Jogamaya Basu and another AIR 1978 Calcutta 193 that when an injunction is in respect of pathway, the Executing Court would be right to pass appropriate orders even for removal of obstruction to give effect to the decree passed by the Court. The decisions have no relevance to the case for the issue is not the executability of the decree as such. The issue is whether the act complained of constitutes a disobedience of the decree for injuction. The report says otherwise. The report, in my view, addresses pointed directions given by this Court and the physical observations that have been made cannot be cast aside by the only fact that objections have been given by the decree-holder. 8. I do not find any violation of the decree and the action in execution process for disobedience of the decree against the judgment-debtor and his seccessor-in-interest is not justified. While setting aside the order of the Executing Court, I make it clear that the decree-holder may have any independent remedy against a subsequent purchaser for any act of nuisance that the defendant might have caused or might cause in future. 9. The civil revision petition is allowed. No costs. (K. KANNAN) JUDGE March 19, 2009 Pankaj*