A.H. Joshi, J.@mdashHeard learned Advocate for appellant. Perused impugned judgment, pleadings and records as produced at the time of hearing. Plaintiff filed Short Cause Suit No. 885 of 2010 in the City Civil Court at Dindoshi (Borivali Division), Goregaon, Mumbai.
2. Gist of the plaint and reliefs sought are as follows:-
Plaintiff and the defendant no. 1 reside in the same building and are next door neighbours. Defendant No. 2 is the owner of the Building. Defendant No. 1 is running the business of tailoring by use of three sewing machines. Plaintiff suffered nuisance due to sound of sewing machines. The plaintiff had filed complaint before the police towards said nuisance. Thereafter he had filed suit for injunction seeking a permanent injunction. Prayer clause (a) reads as follows:-
(a) That this Hon''ble Court be pleased to pass the order directing the Defendant No. 1 to stop the activity of stitching cloths from his residence.
(quoted prayer (a) of plaint-page 29 of paper book)
3. Defendant No. 1''s averments in the written statement is summarised as follows:
Sewing machines are used, on which defendant no. 1''s wife does the sewing work for very limited purpose. Any nuisance is not caused due to sound. The use of sewing machine is done occasionally and from the date when the room was occupied by the defendant.
4. The plaintiff filed an application under Order XII Rule 6 of CPC (Ex. 8) for judgment on admission as regards use of three sewing machines operated with electricity used by defendant.
5. According to the plaintiff, since the defendant no. 1 has admitted use of sewing machine in the house and plaintiff, being neighbour etc. and his suit was liable to be decreed as prayed on said admission.
6. Application (Ex. 8) under Order XII Rule 6 was heard. Learned Judge City Civil Court has taken cognizance of the admission which according to the plaintiff has to be the foundation of judgment in view of Order XII Rule 6 of Civil Procedure Code. Learned Judge allowed application Exhibit ''8'' and passed order thereon that the suit shall be decided on admission. The learned Judge thereafter took up the suit for pronouncement of judgment and delivered separate reasoned judgment and decree. Learned Judge has dismissed the suit.
7. The plaintiff-appellant is aggrieved due to the dismissal of suit.
8. Appellant contends that ''judgment on admission'' means a "favourable decree" only based on admission.
9. After hearing the appellant and after perusal of record tendered during hearing, this court has framed the questions which arises for consideration, as follows:
(a) Was learned trial court right in dismissing the suit when defendant''s admission relied on by the plaintiff was not sufficient to treat that the claim in suit as admitted claims?
(b) Was learned trial court bound to relegate the plaintiff to prove his claim, though plaintiff had not prayed for chance to prove the claim and had craved for judgment only on admission?
Discussion and reasons:
10. After the defendant files the written statement, the plaintiff has to take steps to prove his claim. The plaintiff may make a decision based on formation of own judgment, if he wants to apply to the court for judgment on admission.
Such a decision is to be plaintiff''s own judgment based on his prudence and own wisdom and then only the plaintiff has to make an application under Order XII Rule 6 of Civil Procedure Code.
11. In present case, the choice was open to the plaintiff to proceed with the suit by filing his affidavit of evidence and summoning other witnesses to prove the fact or facts in issue, and reliance on admission, if any, in the written statement could always be available.
12. The facts in issue as had arisen in present suit were:-
(a) Use of three electrically operated sewing machines by the defendants in the room;
(b) Causing nuisance to the plaintiff by the defendants by use of sewing machines;
(c) Right of the plaintiff to get an order of injunction against the defendants against causing nuisance by use of sewing machines,
13. Possessing and using sewing machine was an admitted fact. The fact of possession and use of sewing machine could not ipso facto constitute to be a breach/obligation of any type or violation of right whatsoever. Any injunction prayed against use of machines could be sought only upon of proof of nuisance of degree and intensity worth an order of injunction.
14. In the present case, it has revealed from the application, Ex. 8 that the plaintiff has banked upon a judgment based on admission. Learned Judge found that the aspect of nuisance etc. (with nomenclature whatsoever) was not proved by admission and hence has dismissed the suit.
15. Now, while arguing this appeal, appellant has made a grievance that if the learned trial Judge was satisfied that the admission relied upon by plaintiff to be foundation of a judgment and a decree favourable to the plaintiff, was not adequate to grant a favourable decree in the suit, the court should have relegated the plaintiff to prove the claim.
16. At this stage, it is important to note that the plaintiff, based on his own best judgment based on his own assessment and wisdom, after consideration of facts as pleaded by respective parties and due to total voluntaries he wanted to have "judgment" based on an admission be applied.
17. Plaintiff was sure and he fervently believed that Admission of the defendant was worth a Judgment thereon. Ordinarily a plaintiff who wants to succeed should have craved and strived for proving before the court the breach of obligation or violation of plaintiff''s right and the fact of nuisance instating of risking and entering a gamble of choosing to play a trick on defendant and on the court too.
18. Had the plaintiff craved for a fair trial and a fair judgment, after he ought to have stepped into witness box, he would have chosen to lead evidence and proved his claim in the suit.
Probably rather for sure, plaintiff knew fully well his limitations, had he to step into witness box and bring witnesses to prove fact of nuisance. It has to be believed that the plaintiff had to make a judgment between shouldering the burden to bring evidence to prove the claim or to choose a short and skeptic route. Said short cut of judgment on admission is proved in present case to be a slippery path.
19. The plaintiff has chosen a short cut based on his own judgment. No fault whatsoever can be attributed to the court while applying for judgment based on Order XII Rule 6 of Civil Procedure Code.
20. Plaintiff could have made an alternate prayer that if the admission relied upon by him was not adequate, the plaintiff would opt to prove his claim in the suit, had the plaintiff been in possession of evidence to support his plea, obviously since he knew his strengths and weaknesses. Since any such alternate prayer was not made, the approach of the plaintiff was of hiding something and of seeking. In this trick the plaintiff has failed and he is lamenting in the coy of calamity invited by him.
21. Even otherwise it is not seen that the claim in the suit was not in the nature of enforcement of an undeniable right.
22. In the days of unemployment and dire need of entrepreneurship, if someone undertakes an activity and enterprise, he could not be hindered, rather needs to be encouraged. Moreover sound pollution in around the urban population in day to day life is so excessive that the noise of sewing machines could hardly be denoted to be harsh and intolerable and excessive enough to destroy the peace. The harshness of said noise and its pollution certainly would be a question of fact, varying on each situation and it has to be proved by legal evidence. Intolerableness of pollution could have been proved by direct evidence based on intensity in terms of the decibels and duration which is the quotient of measurement of intensity of sound thereof by use of equipments apart from other primary evidence.
23. The plaintiff could have certainly secured evidence to prove his plea of nuisance and may have succeeded in the suit and now Plaintiff cannot blame any one including the court, except himself.
24. The facts as regards nuisance were not admitted facts and such suit could not have been decreed on admission of single segregated fact without proof of alleged nuisance.
25. It is seen that "decree" meant final pronouncement by court and does not mean that essentially every decree must be and should always be favourably to the plaintiff. Dismissal of suit, too is a decree.
26. The facts in issue as identified and noted by this court in paragraph 13 were such that issue no. 1 was an admitted fact in view of the contents of the written statement.
(a) The fact in issue at point (b) and (c) were the matter of onus of proof by the plaintiff. Plaintiff due to his choice has failed in discharging the same.
In the result, the facts in issue which constituted the status of ingredient for grant of relief are not proved.
27. Present is a simple case of plaintiff''s election between duty to prove and to choose by taking a risk, to rely on admission, and has got the fruits he craved for. Mostly plaintiff was satisfied that he does not have evidence to prove his claim. Now he cannot take a stance topsy-turvy and exert to resurrect to save his suit.
28. This appeal is seem to be continuation of same attitude, lacking either strength and/or sincerity and for sure is an exercise, vexatious in nature. Appeal has no merit and is dismissed.
29. In the light of foregoing discussion, this court answers the points formulated in paragraph 10 as follows:-
(a) The learned Judge was right in dismissing the suit since the admission relied upon by the plaintiff was not adequate to decree the suit.
(b) The learned trial court was not bound to relegate the plaintiff to prove the claim since there was no prayer for that purpose and that plaintiff had voluntarily chosen the path of craving for judgment on a inchoate admission.
It is clarified that since the suit was dismissed without trial, it is clarified that no fact finding is done by the trial court or by this court too.
