Lawrence Jenkins, K.C.I.E., C.J.
1. The plaintiff as the representative of a Brahmin temple sues the defendants as representatives of a Kasar's temple for an injunction to restrain disturbance by noise. This noise is alleged to arise out of the Bhajan service conducted in the Kasar's temple and its effect is alleged to be that the performance of the Kirtan in the Brahmin temple is rendered inaudible and serious annoyance is thereby caused to the plaintiff and those whom he represents.
2. The first Court considered that an actionable nuisance was established and granted relief.
3. On appeal, the Joint First Class Subordinate Judge, A. P., at Thana, reversed the decree. He does not express disbelief in the evidence that the Kirtan is rendered inaudible, but his reasoning is that as the Bhajan is of necessity a noisy service, noise created in its performance cannot be a nuisance. He further declined to consider the question whether the defendants were actuated by malice.
4. In our opinion this view of the case is unsound, because though a legitimate calling or trade may involve a serious nuisance by noise, it does not render that noise non-actionable; in other words, noise does not necessarily become non-action able merely because it is an incident of a legitimate trade.
5. It is further clear from the cases that in determining whether an actionabe wrong has been commited and what measure of relief should be granted, the existence or non-existence of malice is a material consideration.
6. Now, as we have indicated, the complaint here made on the part of the plaintiff is that the defendants conduct Bhajan service with so much noise that their Kirtan is inaudible, and that this is done out of malice.
7. We think there should be clear adjudication on the case thus formulated, and accordingly we frame the following two issues :-
(1) Whether the noise created in the performance of the Bhajan in the Kasar's temple is such as materially interferes with the conduct of the Kirtan in the Brahmin's temple?
(2) Whether the defendants in creating the noise in theperformance of the Bhajan ceremony are actuated by malice?
8. No further evidence.
9. The return should be in a month.
10. The lower appellate Court found on the issues sent (1) that at times the noise of the Bhajan did materially interfere with the Kirtans: and (2) that in creating, at those times, the noise as found on the first issue, the Kasars (defendants) were actuated by malice.
11. The case then came up for final disposal before Jenkins C.J. and Russell J. on the 7th December 1905, when their Lordships passed the following
Decree.-The Court reverses the decree of the lower appellate Court and restores that of the Subordinate Judge, and orders that the defendants as representing the Kasar community of Pen are restrained from conducting the Bhajan in their temple of Devi in dispute in such a manner as to disturb the Kirtan in the plaintiff's temple of Rameshwar or to make the same inaudible in any way.