Sri.S.Vijayashankar, Senior counsel for Mr.M.Shiva Prakash, learned counsel for the petitioners. Sri.Dhyan Chinnappa, Senior learned counsel for Sri.Prashanth Kumar S.T., learned counsel for M/S. Fox Mandal & Assts., for the respondent.
2. The writ petition is admitted for hearing. With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 20.11.2018, passed by the Appellate Court by which appeal preferred by the respondent under Order XLIII Rule 1 (r) of Code of Civil Procedure, 1908 has been allowed and the order of the Trial Court dated 24.03.2018 granting injunction in favour of petitioner has been set aside.
4. Facts giving rise to filing of this petition briefly stated are that petitioner filed a suit seeking the relief of permanent injunction against the respondent. The claim in the suit was based on the ground that petitioner is a Company which has set up Green Category Industry on Plot No.101 in Bommasandra area and is engaged in the manufacture of automotive cable. It was further pleaded that defendant is a neighbouring unit situate on Plot No.102 and is engaged in the activity of Closed Die forging/Open Die forging CNC machine parts. It is also pleaded that due to operation of forging hammer which has been installed by the defendants in the recent past, the same causes serious dangerous vibration to the plaintiff in and around its office. Accordingly, the suit was filed seeking the relief of injunction. Along with the suit an application for temporary injunction was also filed. The defendants filed a reply and denied that it is causing sound pollution. The Trial Court by an order dated 24.03.2018 while deciding the application under Order XXXIX Rule 1 and 2 of the code, directed the defendant to file an undertaking by way of an affidavit to compensate adequately in case any damages caused to the life, limb and property of the plaintiff and its working owing to use of forging hammering machine within three days, failing which the defendant was restrained from causing vibrations which affects the plaintiff company till disposal of the suit. The aforesaid order was challenged in appeal by the defendant. The appellate Court by impugned order has inter alia held that Trial Court has no jurisdiction to restrain industrial activity of the defendant and what precautions can be taken by the defendant to avoid vibration has to be looked by the competent authority. It was further held that when an efficacious remedy is available before the competent authority the jurisdiction of the Civil Court is barred. Accordingly, the order passed by the Trial Court was set aside. In the aforesaid factual background, this petition has been filed.
5. Learned Senior Counsel for the petitioner submitted that the order passed by the appellate court is erroneous. It is further submitted that the Appellate Court has held that the suit filed by the petitioner is not maintainable without making reference to any statutory provision. It is also submitted that the suit in question is maintainable as the same is neither expressly barred nor impliedly barred under any law and therefore, the civil court has jurisdiction under Section IX of the Code of Civil Procedure, 1908 to try the suit. It is urged that issue with regard to jurisdiction has to be pleaded in the written statement and the written statement is yet to be filed and the Appellate Court in the fact situation of the case grossly erred in interfering the well reasoned order of the Trial Court.
6. On the other hand, Learned Senior Counsel for the respondent has submitted that the respondent had set up the plant in 2005 whereas; the petitioner set up its industry in the year 2009 and for a period from 2009 to 2013 no complaint was made. It is further submitted that the noise and vibrations caused by the forging hammer have been found to be within permissible limit by the Pollution Control Board. It is further submitted that the respondent is carrying on its operations on the basis of valid consent granted by the authorities and the petitioner has the remedies available to him under The Factories Act, 1948 and before the Pollution Control Board. Reference has also been made to the report prepared in the month of December 2017 to show that the vibrations passed by the operation of the unit of the respondent are within permissible limits.
7. Learned Senior Counsel for the petitioner has also invited the attention of this court to the proceedings before Karnataka Pollution Control Board dated 21.01.2018 and has submitted that the petitioner was advised to file a complaint to the competent authority in case he feels aggrieved.
8. Lastly it is urged that the order passed by the Appellate Court is perfectly just and legal and does not call for any interference.
9. I have considered the submissions made by the learned counsel for the parties and have perused the record. It is well settled in law that normally the Appellate Court would be slow to interfere with the discretionary jurisdiction of the Trial Court while dealing with an application for injunction unless the exercise of discretion to deal with the prayer for injunction by the Trial Court is shown to have been exercised arbitrarily, capriciously or perversely. In this connection, reference may be made to the decision of the Supreme Court in WANDER LTD vs. ANTOX INDIA (P) LTD, (1990) Supp SCC 727, LAXMIKANT V. PATEL vs. CHETANBHAI SHAH, (2002) 3 SCC 65, SEEMA ARSHAD ZAHEER vs. MUNCIPAL CORPORATION IF GREATER MUMBAI, (2006) 5 SCC 282, RAMDEV FOOD PRODUCTS(P) LTD. vs. ARVINDBHAI RAMBHAI PATEL AND OTHERS, (2002) 6 SCC 437 and PRADEEP ANAND vs. ITC LTD AND OTHERS, (2006) 8 SCC 726.
10. In the backdrop of aforesaid well settled legal position the facts of the case may be seen. The Trial Court in the order dated 24.03.2018 has framed issues with regard to prima facie case, balance of convenience and irreparable injury. Thereafter, on the basis of analysis of material available on record, the Trial Court has come to a conclusion that the petitioner has been able to make out a prima facie case, the balance of convenience lies in his favour and in case injunction as prayed for is not granted, the petitioner will suffer an irreparable injury. Accordingly, the application under order XXXIX Rules 1 and 2 was allowed. However, the Appellate Court without assigning any reasons has held that Trial Court has no jurisdiction to restrain industrial activities of the defendants. The Appellate Court in its order has also not referred to any statutory provisions which are available for the petitioner for redressal of its grievance and again without assigning any reasons the finding has been recorded that when efficacious remedy is available before the competent authority the jurisdiction of the court is barred. The Appellate Court has also not considered the scope and ambit of section
9 of the Code. The aforesaid findings have been recorded in a cryptic and cavalier manner without assigning any reasons. It is trite law that giving of reasons in support of an order minimizes the chances of arbitrariness and therefore It has been construed to be an essential requirement of rule of law. In SECRETRY AND CURATOR VICTORIA MEMORIAL HALL VS. HOWRAH GANTANTRIK NAGRIK SAMITHI AND OTHERS, (2010) 3 SCC 732, it has been held by the Supreme Court that reason is the heart beat of every conclusion and absence of the reason renders the order unsustainable particularly when the order is subject of challenge in a higher forum. It has further been held that recording of reason is part of principles of natural justice and ensures transparency and fairness in decision making. In the instant case, the Appellate Court in a perfunctory manner has decided the appeal without recording reasons. The impugned order therefore cannot be sustained in the eye of law. Accordingly, it is quashed. The Appellate Court is directed to decide the appeal preferred by the respondent afresh by a speaking order after hearing the parties in the light of the observations made in this order within a period of four weeks from the date of receipt of certified copy of the order passed today. With the aforesaid directions, the petition is disposed of. Sd/- JUDGE