P.S. Narayana, J.
1. On 25.1.1999 this Court made the following order:
In spite of service of notices, none appeared for the respondents.
In view of the judgment of this Court in Alapati Venkata Rao v. Nizampatnam Satyanarayana 1988(2) APLJ 209 and in view of the substantial questions of law raised in ground No. 6, the Second Appeal is admitted.
2. The substantial questions of law raised in (a) and (b) of ground No. 6 read as hereunder:
(a) Whether, on the facts and in the circumstances of the case, the Courts below are right inferring that defendants are committing NUISANCE especially when the defendants and prior to them, their predecessor, has been carrying on the same business for the past several years and no one in that area had ever raised any objection to the activities of the defendants except the plaintiff alone and when plaintiff failed to establish that the activities of the defendants are causing unreasonable interference.
(b) Whether on the facts and in the circumstances of the case, the ingredients for the actionable claim of nuisance were made out to warrant the grant of injunction especially when the plaintiff failed to make out that the activities carried on in the premises are unreasonable.
3. Sri M. Ram Mohan, learned Counsel representing the appellants had taken this Court through the findings recorded by the Court of first instance and also the findings recorded by the appellate Court and would maintain that in a case of private nuisance, the aspects of precautions to be taken and the conditions to be imposed while balancing the interest of the parties had not been considered at all and simply on the strength of the oral evidence of PW.1, certain findings had been recorded and the suit had been decreed granting perpetual injunction from causing the alleged nuisance. The learned Counsel while making his elaborate submissions pointed out to the report of the Commissioner and the objections made thereto and would maintain that the report of the Commissioner may not be of much help. The counsel also placed strong reliance on several decisions in this regard.
4. On the contrary, Sri O. Manohar Reddy, learned Counsel representing the respondent would maintain that in the light of the report of the Commissioner and also the clear evidence of PW.1, even if the evidence of DWs.1 and 2 to be taken into consideration since concurrent findings had been recorded by the Court of first instance and also the appellate Court and in the light of the substantial questions of law raised before this Court being predominantly questions of fact, the Second Appeal deserves a dismissal.
5. Heard the counsel on record, perused the oral and documentary evidence available on record, findings recorded by the Court of first instance and also the findings recorded by the appellate Court as well.
6. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as shown in OS No. 802 of 1987 on the file of II Additional District Munsif, Kakinada.
7. The plaintiff instituted the aforesaid suit praying for the relief of permanent injunction restraining the defendants from causing nuisance to the plaintiff and his family members ever using the site in H.No.25-6-39 of Ganjamvari Street, Kakinada, and also Ganjamvari Street, for doing any lorry repair work using big hammers causing big sound and atmospheric pollution and from keeping lorries in the same street and attending their repairs and from keeping the rebore engine kept on of lorry or bus and producing sound and oil smell for 24 hours continuously and for other appropriate reliefs.
8. The plaintiff pleaded in the plaint as hereunder:
The plaintiff and his family members are residing in their house No. 25-6-37, Ganjamvari Veedhi, Kakinada, and it is a residential locality, and he is an Advocate; that the 1st defendant took the vacant site measuring 7 x 20 yards from the brother of the plaintiff and this site is 10 to 15 yards away from the residence and office of the plaintiff, and 1st defendant carrying on engine repair business, and from six months the 1st defendant increased his business i.e., carpentry body building of the lorry, colouring of lorries and busses, dismantling of condemned accident involved lorries and busses, smithy work of lorries and busses, using big hammers for dismantling lorries and busses, tempering lorry springs, reboring engines and keeping the lorries and bus engines working continuously for 24 hours, which are causing unbearable nuisance of sleeplessness, B.P., to the plaintiff and others, and the defendants also blocking the road keeping the vehicles for repair purpose and this nuisance is going on round the clock which is causing physical and mental injury to the plaintiff and his family members and also to the neighbours, therefore, the plaintiff objected the nuisance for which the defendants agreed to shift his work, but he has been dodging and the nuisance becoming more and more, hence the matter was reported to police, and the police filed PTC No. 596 of 1987 and STC No. 1350 of 1987 against the defendant in which the penalty was imposed, but the defendant did not stop this nuisance and due to the hammering and causing tension to springs of lorries, there is a sound pollution, passage obstruction and atmospheric pollution for which the plaintiff got taken photos, and the plaintiff got issued notice dated 19.7.1987 to the defendant and landlady of the defendant to stop the nuisance for which the defendant gave false reply notice while the landlady of the defendant replied expressing her helplessness, and the defendant has no right to commit such acts of nuisance, and the cause of action for the suit arose on 16.7.1987, on 17.7.1987 and on 18.7.1987 and thereafter it subsists, subsequently 1st defendant died and his legal representatives are impleaded as defendants 2 to 6 and they are continuing the same nuisance.
9. 1st defendant resisted the suit by filing a written statement with the following averments:
The plaint averments that the defendant is tenant of the demised premises i.e., consisting of shed and thatched shed in the vacant site as mentioned in the plaint is true, and the landlady of this defendant is the wife of the younger brother of the plaintiff is true, and the issuance of the notice by the plaintiff for which the reply was given is true, and the defendant has been carrying on engine repair business in the demised premises since very long time is true, but the plaint allegations that this defendant has been increased the business, i.e., carpentry building of the lorries, colouring of lorries and busses, dismantling of the condemned lorries and busses, smithy work of lorries by using big hammers in dismantling of the lorries, tempering lorry springs, reboring engines for 24 hours and thereby causing nuisance to the plaintiff and others and blocking the street by keeping the lorries, and the locality of the demised premises is residential and there is sound and atmospheric pollution, and the cause of action subsists, hence the plaintiff is entitled to the relief of permanent injunction as prayed for are all not true, hence denied; and it is further contended that this defendant has been carrying on lorry engine repair work shop peacefully in the demised premises without causing any sort of nuisance to anybody, and the tenancy case filed by his landlady being prosecuted by the plaintiff due to his close relationship with the landlady, and this suit is filed with a view to compel this defendant to enhance the rent to Rs. 250/- per month for the demised premises or to evict him therefrom, and there are several business establishments that are tractor and lorry repair mechanic sheds, transport company and other shops are there in the locality of the demised premises; that this defendant is a statutory tenant is entitled to the benefits of Rent Control Laws, hence the plaintiff cannot seek injunction, and the plaintiff foisted false case against the defendant and coerced him to admit a false charge of nuisance, and this Court has no jurisdiction as the building is governed by Rent Control Act, and the contra allegations of the plaint are not true, and the valuation and court fee of the suit is not correct, and the suit is bad for multifarious reliefs.
10. Subsequent to the filing of the written statement, 1st defendant died and defendants 2 to 6 were impleaded as his legal representatives. The 2nd defendant filed written statement virtually adopting the written statement of the 1st defendant and denying the allegation of nuisance. Defendants 3 to 6 adopted the said written statement by filing a Memo of Adoption.
11. On the strength of the pleadings, the following issues were settled before the Court of first instance:
1. Whether the suit is not maintainable?
2. Whether the defendant is entitled to the benefits of Rent Control Laws?
3. Whether this Court has jurisdiction to entertain the suit?
4. Whether the suit is bad for multifarious reliefs?
5. Whether the valuation and the court fee paid are incorrect?
6. Whether the plaintiff is entitled to injunction prayed for?
7. To what relief?
The plaintiff examined himself as PW.1 and Exs.A1 to A14 were marked. 2nd defendant examined himself as DW.1 and 5th defendant as DW.2 and Exs.B1 to B5 were marked. Ex.C1 also was marked. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiff is entitled to the reliefs prayed for and accordingly decreed the suit. Aggrieved by the same, the matter was carried by way of appeal AS No. 160 of 1996 on the file of IV Additional District Judge, Kakinada and the appellate Court having framed the points for consideration at paragraph 9, proceeded to discuss with the oral and documentary evidence commencing from paragraphs 10 to 16 and ultimately dismissed the appeal. Aggrieved by the same, the present Second Appeal had been preferred.
12.The substantial questions of law, on the strength of which the Second Appeal had been admitted on 25.1.1999, had already been referred to supra.
13. In Alapati Venkata Rao and Anr. v. Nizampatnam Satyanarayana and Anr. 1988(2) APLJ 209 this Court at paragraph 18 observed as hereunder:
Thus, it is clear that in view of the great advances in modern technology and engineering and the methods involved for preventing different types of pollution, the court must consider before granting a permanent injunction, whether the noise, smoke or dust can be adequately prevented by the defendant complying with the conditions imposed by the relevant statutory authorities or whether any further conditions are to be imposed. The court has also to see the nature of the locality, the pre-existing conditions and whether the defendants' unit will or will not substantially add to the existing inconvenience. The Court has also to see the bona fides of the plaintiffs and whether they have been set up by rival businessman.
14. The evidence of PW.1 is clear and categorical relating to the nuisance which is being created at the site in question. Exs.A1 to A3 are the notices, wherein the plaintiff demanded the 1st defendant to stop the acts of nuisance and also indulging acts of nuisance to the landlady of the 1st defendant. It appears that the landlady expressed her helplessness while the 1st defendant had denied the same by issuing a reply notice. Apart from Exs.A1 to A3, office copy of the notices and the reply notice, Ex.A4 the police complaint given by PW.1, Ex.A5 the certified copy of the judgment in STC No. 596 of 1987, Exs.A6 to A12 the photos and Exs.A13 and A14 the receipts had been relied upon.
15. It is no doubt true that except the evidence of PW.1, there is no other oral evidence adduced on behalf of the plaintiff. Ex.C1 is the report of the Commissioner in IA No. 855 of 1987 in OS No. 802 of 1987 and the report of the Commissioner is clear and categorical about his visits and the hearing of sounds and the other aspects. The evidence of DWs.1 and 2 also is available on record and reliance was placed on Exs.B1 to B4 copy of the petition and counter in RCC No. 47 of 1991 and copy of petition and counter in RCC No. 80 of 1987 and the objections to the Commissioner's Report also was marked as Ex.B5. On a careful analysis of the objections made to the report of the Commissioner, they are not substantial objections except vague denial. It is true that the Commissioner was not examined.
16. In V. Appayamma v. L. Sahu : AIR1973AP168 the learned Judge of this Court while dealing with the necessity of examination of Commissioner observed that the report of the Commissioner is a part of record and can be considered as evidence irrespective of the fact that whether the Commissioner is examined as witness or not. Even otherwise, inasmuch as it is a case of private nuisance and also in view of the fact that the report of the Commissioner, Ex.C1, and the contents thereof being self-explanatory, this Court is of the considered opinion that the stand taken by PW.1 in this regard in a way is amply supported by the report of the Commissioner-Ex.C1. It is needless to say that the evidence of DWs.1 and 2 is one of denial of creating any nuisance whatsoever. Reliance also was placed on the judgments reported in Halsey v. Esso Petroleum Co. Ltd. 1961 W.L.R. 683; Bridlington Relay Ltd. v. Youkshire Electricity Board (1865) 1 Ch. 436; Land Mortgage Bank of India v. Ahmedbhoy Habibbhoy I.L.R. 8 Bombay 35; Shaik Ismail v. Venkatanarasimhulu AIR 1986 Madras 905; Raj Singh v. Gajraj Singh : AIR1958All335 ; Stuces v. Bridgeh (1879) II Ch. D. 852; Dhannalal v. Chittarsingh : AIR1959MP240 and Biharilal v. James Maclean AIR 1924, Allahabad 392.
17. In Gotham Construction Co. v. Amulya Krishna Ghose and Ors. : AIR1968Cal91 , it was observed at paragraphs 31 to 33 as hereunder:
No expert has been examined at the trial. Mr. Lala Hemanta Kumar makes that a ground of attack of the judgments under appeal. So he does on the authority of Dttatraya v. Gopisa AIR 1927 Nag 236. This is a case about construction of a cess-pool and latrine from which is said to have emanated offensive smells, which caused a private nuisance to neighbours, the suing party, as the allegation was. In that context, a remit was ordered with a view to finding out how far the nuisance found as a fact was a private nuisance and what ways and means could be devised with the help of medical or sanitary experts' evidence for the prevention of such nuisance. More, it was observed:
For a court to decide rightly whether a particular nuisance is one in that the inconvenience is only to the public or there is a special injury to a particular individual,...expert evidence is of very great value and is an absolutenecessity a passage upon which Mr. Lala Hemanta Kumar strongly relies. If it is thought that this is a proposition of universal application, I must respectfully express my dissent. Each case depends on its own facts. In the case in hand the evidence is overwhelming that a nuisance by noise exists. Furthermore, the finding of fact - and a concurrent finding at that - is just so. Sure enough, whether or no such nuisance exists is a question of fact, as Mr. Mookerjee rightly emphasizes. Still I have to direct a remit for expert evidence. The difference between an expert and a non-expert is that the former has acquired special knowledge, skill or experience in a particular subject, whereas the latter has acquired none. But what is the subject here? The subject is : does the hammering of steel plates with hammers weighing upto four pounds create noise? Far from being beyond the range of common knowledge - a field where experts may flourish - it is the commonest of common knowledge, in which an expert, if any, has no advantage over a non-expert.
Again, in Dattatraya's case AIR 1927 Nag 236, the material on record was not sufficient to decide the case from the point of view (i) whether the nuisance was public or private and (ii) whether or no the owner of the privy would take scientific precautions to ensure the safety of the health of the inmates of the injured party's house. Can this be said of the litigation I am seized of? The material I see, the material upon which the courts of facts come to the finding of fact on the existence of a nuisance by noise, is sufficient to decide that it is a private nuisance by all means affecting the three suing individuals at the date of the suit. And in order to be a public nuisance, it is not necessary that every member of the public must be affected; it is sufficient to show that a representative cross-section of the public has been injuriously affected. See 1957-1 ALL ER 894 (supra). The material on record, which includes the evidence of persons of the neighbourhood complaining of noise and nuisance, makes the existence of a public nuisance so probable too. But, this litigation being what it is, it is hardly necessary to go to that length. Thus, no remit is called for, to have expert evidence on the question whether the nuisance found here is private or public. Nor do I need any expert evidence to ascertain whether scientific precautions are to be taken or not to make the workshop a noise-proof one. Once the finding is that there is a nuisance by noise, as it is here, it is for the appellant to abate such nuisance wholly by resorting to such method which will not allow the noise to travel beyond the workshop. And the appellant does claim that that has since been done : para 41 infra. Still a remit. I find it impossible to hold so.
Then, why this blind faith in experts whom Jessel, M.R. described in Lord Abinger v. Ashton (1873) 17 Eq. 358 at pp.373-374, as remunerated witnesses available on hire to pledge their oath in favour of the party who has paid them. First and last, the court is an expert of all experts and can need no opinion evidence of an expert in order to determine whether hammering of steel plates by hammers up to 4 pounds creates a terrific noise or not and whether such nuisance can be wholly abated or not by treating the workshop with the well-known method of acoustics. The contention on lack of expert evidence must, therefore, fail'. Further, strong reliance was placed on the decision reported in Bhanwar Lal and Anr. v. Dhanraj , wherein the learned Judge of Rajasthan High Court observed at paragraphs 24, 25 and 29 as hereunder:
The term 'nuisance' is incapable of an exact definition as observed in Winfield on Tort (VI Edition) at p.536. But its concept is well understood. As the Author has observed it may be described as 'unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it'. It is a common law wrong having a long history. There must be interference with the use or enjoyment of land, or of some right over or in connection with it, causing damage to the plaintiff. The forms of this are innumerable. Noise, smells pollution of air or water are the most usual instances, but there are many others. The two main heads are injury to property and interference with personal comfort. The escape of fumes, which kill vegetation and cattle, is an illustration of the first, and excessive tolling of church bells of the second. But whatever be the type, it does not follow that any harm constitutes a nuisance. The whole law on the subject really represents a balancing of conflicting interests. Some noise, some smell, some vibration, every one must endure in any modern town, otherwise modern life there would be impossible. It is repeatedly said in nuisance cases that the rule is sic utero tuo ut alienum non laedas, but the maxim is not very informative. If it means that no man is ever allowed to use his property so as to injure another, it is palpably false. If it means that a man in using his property may injure his neighbour but not if he does so unlawfully, it is not worth stating. In fact, the law repeatedly recognizes that a man may use his own so as to injure another without committing a nuisance. It is only if such use is unreasonable that it becomes unlawful. The homely phrases, 'Give and take' 'live and let live' are much nearer the truth than the Latin Maxim. 'A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.Where the interference is with personal comfort, it is not necessary in order to establish a nuisance that any injury to health should be shown. It is enough that there is material interference with the physical comfort of human existence reckoned 'not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people.' The Author proceeds to say that one of the chief tests is reasonableness - 'what is reasonable according to the ordinary usages of mankind in society or more correctly in a particular society' and it is important to distinguish this term in the law of nuisance from its use elsewhere in the law of tort, especially in negligence. Reasonableness plays an important part in determining whether or not there has been a nuisance. Just as in England Courts deal with a case according to English peoples habits of living. In India we have to go by the habits of Indian people.
To my mind, whether by a given set of facts nuisance is or is not established is a mixed question of law and fact. The primary facts would be whether the defendant had committed certain act attributed to him. The allied question will be whether the evidence in that behalf was reliable. Further, this will again be a question of fact whether any discomfort was being caused to the plaintiff or not and if so whether such discomfort was material or substantial. It is on the last aspect of the matter that the question will arise whether the act or omission amounts to a nuisance. Nuisance is a legal wrong i.e., an injury caused to an individual and that can be determined on the given set of facts by the application of the legal principles on which the question has to be judged whether any nuisance was caused or not. As I have quoted from Winfield, the balance has to be maintained between the right of the occupier to do what he likes with his own and the right of his neighbour not to be interfered with and the test is reasonableness. What is reasonable according to the ordinary usages of mankind living in society or more correctly in a particular society, 'here people using the Bazar of Pali!'. What is reasonable so as to constitute nuisance or not would be an inference of law to be drawn by the Court from the proven facts.
18. The question, which had been argued in elaboration is that in the facts and circumstances of the case some conditional decree imposing conditions relating to the measures to be taken or the reasonable care to be taken or the precautions to be taken could have been made instead of granting a perpetual injunction as prayed for. In the light of the evidence available on record, the site in question and also the report of the Commissioner, coupled with the evidence of PW.1 and also the demand made by PW.1 and the helplessness expressed by the landlady, even if the evidence of DWs.1 and 2 to be appreciated and the objections to the report of the Commissioner - Ex.B5, to be taken into consideration, this Court is satisfied that both the Court of first instance and also the appellate Court appreciated the oral and documentary evidence available on record and arrived at the correct conclusion especially taking into consideration the nature of nuisance that is being created at the site in question. Hence, this Court is thoroughly satisfied that the concurrent findings recorded by the Courts below need no disturbance at the hands of this Court and accordingly the said findings are hereby confirmed.
19. It is needless to say that the Second Appeal being devoid of merit, the same shall stand dismissed. However, since the parties are fighting the litigation on the aspect of private nuisance, the parties to bear their own costs.