- 1 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 4478 OF 2025 (CPC) BETWEEN: SMT. SHANTHA NAGESHA RAO SINCE DECEASED REPRESENTED BY HER LR's 1. SRI. B.N. KUMARASWAMY S/O LATE B. NAGESH RAO AGED ABOUT 70 YEARS 2. SRI. B.N. LOKESH S/O LATE B. NAGESH RAO AGED ABOUT 67 YEARS BOTH RESIDING AT NO.1007 26TH MAIN, 4TH T BLOCK JAYANAGAR, BENGALURU - 560 041 3. SMT. B.N. VEENA W/O SRI. M.R. RANGARAJU AGED ABOUT 59 YEARS R/AT NO.119, 5TH MODEL HOUSE STREET BASAVANAGUDI BENGALURU - 560 004 …APPELLANTS (BY SRI. ABHINAV R, ADVOCATE) AND: 1. SRI. SHIVANANDA SHARMA MEMORIAL RASHTRIYA, VIDYALAYA DEGREE COLLEGE, NO.17, 26TH MAIN Digitally signed by ANJALI M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 36TH CROSS, 4TH 'T' BLOCK JAYANAGAR, BENGALURU 560 041 REPRESENTED BY ITS PRESIDENT AND SECRETARY 2. RASHTRIYA SHIKSHANA SAMITHI TRUST R.V.ROAD, BENGALURU-560 004 REPRESENTED BY ITS MANAGING TRUSTEE 3. BRUHAT BENGALURU MAHANAGARA PALIKE N.R.SQUARE, BENGALURU-560 002 REPRESENTED BY ITS COMMISSIONER …RESPONDENTS (BY SRI. G.B. SHARATH GOWDA, ADVOCATE FOR C/R1 & R2) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.12.03.2025 PASSED ON IA NO.1 IN O.S.NO.3213/2019 ON THE FILE OF THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-25), BENGALURU, DISMISSING IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC. THIS MFA HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR - 3 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 CAV JUDGMENT (PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This Misc.First Appeal is filed under Order 43 Rule 1(r) read with Section 151 of CPC, 1908 calling in question the legality and correctness of the order dated 12.03.2025 passed by the learned III Addl.City Civil and Sessions Judge, Bengaluru in OS No.3213/2019, whereby, the learned trial Court dismissed I.A.No.1 filed by the appellants (herein original plaintiffs) seeking an order of temporary injunction to restrain the respondents from operating a sewerage treatment plant (STP) located in the set back area adjoining the plaintiffs' residential property. The factual matrix of the case are as under: 2. It is the case of the appellants that, they are the legal representatives of original plaintiff, a senior citizen then, who had instituted the suit during her lifetime seeking both mandatory and permanent injunctions against the operation of the STP by the first and second - 4 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 defendants. It is the specific allegation of the appellants that STP has been installed illegally by the respondents in the set back area of the property bearing Schedule-A which abuts the plaintiff's residential house. It is further alleged that the said STP causes persistent foul smell, environmental nuisance and infringes upon the plaintiff's rights to clean air, peaceful residence and dignified living and thereby constituting a direct violation of their fundamental rights. 3. The main grievance of the appellants is that, the trial Court has failed to appreciate the nature of the relief sought and the serious hardship caused due to the illegal installation and continuous operation of the STP. But, the interim application so filed by the appellants was dismissed by the trial Court by the impugned order challenged in this appeal. 4. The learned counsel for the appellant Sri Abhinav R., argued that, the trial Court erred in - 5 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 ignoring the relevant materials, including statutory notifications and guidelines which prohibit the establishment of STPs in set back areas. He would submit that, the plaintiffs are particular about the office memorandum dated 1.3.2021, which prescribes that STPs shall preferably be located away from residential premises and not in set back areas. Learned counsel for the appellants have also brought to the notice of this Court that alternative spaces such as southern portion of Schedule A property which is currently being used for parking, are available for relocation of the STP. 5. Per contra, the learned counsel for the respondents Sri G.B.Sharath Gowda, specifically contend that, the said notification is prospective in nature and rightly the trial Court has observed so in the course of the order. The said STP was installed in the year 2013. He submits that more than 2000 students are studying in the college run by respondents and if any interlocutory order is passed, it is the respondents who would be put to - 6 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 greater hardship and loss. He further submits that, the trial Court has passed a reasoned order which cannot be interfered. 6. As against this submission, by way of reply, the learned counsel for the appellants would submit that, the legal requirement for maintaining public health and safety is a continuing obligation and any installation causing health hazards or nuisance can be subjected to regulation irrespective of its date of installation. He would submit that, the right to ones property without undue interference is a recurring and continuing right and cannot be defeated merely nuisance existed for some time without judicial intervention. 7. He further made another ground of challenge pertaining to the trial Court order relying on the principle of acquiescence. According to him, the trial Court has held that since the STP was installed long back and continued to function for several years, the plaintiffs are deemed to - 7 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 acquiesce to its presence. However, pleadings and documents on record clearly establish that the plaintiffs had initially believed STP to be for treating kitchen waste water and later it was discovered that it was in fact posing raw sewerage including faecal matter. He submits that, upon such discovery, approached the civil authorities and eventually filed the present suit. Therefore, he submits that the plea of acquiescence which was not even raised by respondents in their pleadings, could not have been assumed or inferred by the trial Court, particularly, in a matter involving environment safety and statutory violations. 8. The learned counsel for the respondents supported the findings of learned trial Court and according to him, no prima facie case is made out by the plaintiffs to consider the prayer and no balance of conveniences leans in favour of plaintiffs and if STP is ordered to be stopped, it is respondents who would be put to greater hardship. - 8 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 9. Having heard the arguments of both the side and on perusal of the records, it is significant to note that, trial Court has placed the burden on the appellants to prove that the respondents had alternative space for installing the STP. This reversal of burden of proof is legally untenable. The obligation to justify the legality of the installation and to demonstrate compliance with applicable regulations, including approval from statutory authorities, lies squarely upon the respondents who are operating the STP. Till date, no such permission or document is produced by the respondents ether before trial Court or before this court, therefore, trial Court's finding suffer from a grave perversity in appreciation of evidence and legal burden. Moreover, the trial Court has acknowledged in Para.13 of its order that, a case for trial has been made out. In suits of this nature, once a prima facie case is established and a serious hardship is demonstrated, it is incumbent upon the Court to grant interim protection so that, plaintiff's rights are irreparably - 9 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 prejudiced pending adjudication. The denial of interim relief despite the matter triability, defeats the very object of interlocutory remedies and results in continued injury to the appellants. 10. The learned counsel for appellants relied upon the following three judgments in support of his submission: (i) Thressiamma alias Valsamma V/s. Sebastian Mathew, alias Sunny- 2001 SCC Online Ker 249. (ii) Radhey Shiam V/s. Gur Prasad Serma and Another- 1977 SCC Online All 247. (iii) Shanmughavel Chettiar and 3 others V/s. Sri. Ramkumar Ginning Firm- 1985/S.A No.334 of 1980, Madras High Court. 11. In Thressiamma supra, specifically laid down that, "in our opinion a nuisance actually in existence stands on a differing footing than a possibility of nuisance or a future nuisance. An actually existing nuisance is capable of being assessed in terms of its quantum and the relief which will protect or - 10 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 compensate the plaintiff consistently with the injury caused to his rights is also capable of being formulated. In our opinion a nuisance actually in existence stands on a differing footing than a possibility of nuisance or a future nuisance. An actually existing nuisance is capable of being assessed in terms of its quantum and the relief which will protect or compensate the plaintiff consistently with the injury caused to his rights is also capable of being formulated." 12. In this case, right from the filing of the suit, the plaintiffs are agitating that this STP being operated by the defendants is causing nuisance as it emits foul smell. Even in future also if it is continued, it may cause injury to the plaintiffs. In the second decision Radhey Shiam stated supra, the Hon'ble Allahabhad High Court has observed that, it is settled that, "it is manifest that a person can claim injunction to stop nuisance if in a noisy locality there is substantial addition to the noise by introducing of some machine, instrument or performance at defendant's premises which materially affects the physical comforts of the occupants of the plaintiff's house." - 11 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 13. In the third judgment Shanmughavel Chettiar supra relied by the counsel for the plaintiff, the Hon'ble Madras High Court was dealing with the actionable nuisance and the principles of granting such injunction with regard to the brick kiln. In the course of judgment at sub-para (6) and (7) of para.16 it is observed as under: "16. In Dhanna Lal v. Chittar Singh, , the principles relating to private nuisance have been succinctly enumerated as follows : (1) xxx (2) xxx (3) xxx (4) xxx (5) xxx (6) If the defendant is found to be carrying on his business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards them, and may be restrained by injunction, although he may be conducting his business in a proper manner according to rules framed in this behalf either by the Municipality or by the Government. The latter defence can be effective in a case of public nuisance, but not in that of a private nuisance. - 12 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 (7) If an operation on the defendant's premises cannot by any care and skill be prevented from causing a private nuisance to the neighbours, it cannot be undertaken at all, except with the consent of those injured by it." 14. In view of the pleadings of both the parties, as well as submission of both the side, this Court is of the considered opinion that, the trial Court has failed to appreciate the scope of its jurisdiction under Order 39 rule 1 and 2 of CPC and has delivered a cryptic order which is legally unsustainable order without assigning cogent reasons or discussing the relevant statutory guidelines. The material on record prima facie disclose that, the STP has been set up in the set back area in contravention of Urban developments norms and specific govt. instructions which discourage such installations near residential dwellings. 15. As stated above, till date, the defendants have not produced and permission or licence or NOC from the competent authorities to install the said STP in the set - 13 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 back area near the residential dwellings. The ultimate burden is on the defendants to prove that the said STP is installed in accordance with rules and regulations framed by the authorities concerned. 16. This Court is not oblivious to the fact that the STP may be necessary infrastructure for the functioning of the educational institution run by the respondents and any abrupt discontinuation may disrupt public utility functions. Therefore, the strike a balance between the competing interest and prevent continuing injury to the appellant while also safeguarding the operation of essential facilities, a modified arrangement is warranted. 17. Accordingly, this Court finds it just and proper to allow the present appeal, set aside the impugned order passed by the trial Court with a direction to the respondents to take immediate and concrete steps to mitigate the hardship caused to the appellants. The respondents shall make temporary or alternative - 14 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 arrangements to ensure that the foul smell and nuisance emanating from STP does not affect the appellant's premises. Further, the STP operation shall conform to the guidelines issued by the competent authorities and shall not cause health hazards or infringement of residential rights. 18. It is also to as directed that, the trial Court shall expedite the hearing of suit in OS No.3213/2019 and dispose of the same expeditiously with all its promptitude without being influenced by observations made in this judgment. Resultantly, following: ORDER (i) The Appeal is allowed. (ii) Order dated 12.3.2025 passed on I.A.1 in OS No.3213/2019 by the III Additional City Civil And Sessions Judge, (CCH-25), Bengaluru is set aside. - 15 - HC-KAR NC: 2025:KHC:26680 MFA No. 4478 of 2025 (iii) The respondents are directed to make immediate alternative arrangements or modify the operation of STP in such a manner that no foul smell or effluents or environmental nuisance affects the appellant's property and the residential property until final disposal for the suit. (iv) The trial Court is requested to expedite the trial with all its promptitude. Under the circumstances, costs made easy. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 1 Sl No.: 33