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Radhey Shiam Vs. Gur Prasad Serma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 133 of 1971
Judge
Reported inAIR1978All86
ActsSpecific Relief Act, 1963 - Sections 38; Code of Civil Procedure (CPC) , 1908 - Sections 100
AppellantRadhey Shiam
RespondentGur Prasad Serma and anr.
DispositionAppeal dismissed
Excerpt:
.....100 of code of civil procedure, 1908 - findings of lower appellate court - installation and running of flour mill would seriously interfere with physical comfort of plaintiff and his family members - lower appellate court issued injunction against defendant restraining from making and causing to be made noise and vibration from operation of flour mill - findings of lower appellate court based on appraisal of evidence - court did not err in issuing injunction and findings not open to interference in second appeal. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of..........shyam and 5 others for permanent injunction restraining the defendant no. 1 from installing and running flour mill in the premises occupied by the defendant no. 1 on 7-ashok marg, lucknow. the plaintiffs alleged that a portion of the first floor of the said premises was occupied by plaintiff no. 1 as ,a tenant. just below that portion lay the shop of the defendant no. 1 on the ground floor. the plaintiff no. 2 occupied a shop adjoining the shop of defendant no. 1 on the ground floor of the premises. the de-fendant no. 1 operated upon an oil expeller machine in his shop for about six months and thereafter he planned to instal a flour mill therein. it was alleged that prior thereto the defendant no. 1carried a kirana business in the shop. the installation of flour mill was opposed by.....
Judgment:

T.S. Misra, J.

1. Gur Prasad Saxenaand another filed suit No. 595 of 1964 against Radhey Shyam and 5 others for permanent injunction restraining the defendant No. 1 from installing and running flour mill in the premises occupied by the defendant No. 1 on 7-Ashok Marg, Lucknow. The plaintiffs alleged that a portion of the first floor of the said premises was occupied by plaintiff No. 1 as ,a tenant. Just below that portion lay the shop of the defendant No. 1 on the ground floor. The plaintiff No. 2 occupied a shop adjoining the shop of defendant No. 1 on the ground floor of the premises. The de-fendant No. 1 operated upon an oil expeller machine in his shop for about six months and thereafter he planned to instal a flour mill therein. It was alleged that prior thereto the defendant No. 1carried a Kirana business in the shop. The installation of flour mill was opposed by the owners of the said building as also by the plaintiff No. 1. The plaintiff's alleged that they would lose their peace on account of rattling notice of the flour mill and their health would be adversely affected if the flour mill was allowed to be run. The defendant No. 1 did not agree to give up the idea of installing the flour mill hence the plaintiffs filed a suit on 23rd December, 1964. The suit was contested by the defendant No. 1 pleading inter alia that no nuisance had been caused or would be caused because of any of his alleged acts and that the plaintiffs had no right to sue. The trial court, having found that the running of the flour mill was not an actionable nuisance and that the oil plant of the defendant No. 1 was being run without causing any nuisance to the plaintiff, dismissed the suit. Against that decision the plaintiffs filed Civil Appeal No. 59 of 1968.

2. Gur Prasad Saxena filed anotherSuit No. 34 of 1966 on 10th January, 1936 against Radhey Shyam and 5 others for permanent injunction restraining the defendant No. 1 from running or continuing to run the oil expeller plant in his shop. This suit was also based on the ground of private nuisance. It was resisted by the defendant No. 1. The trial court having found that the running of the oil expeller plant by the defendant No. 1 was not a source of nuisance to the plaintiffs and that it would not weaken the building, dismissed the suit. The plaintiff preferred Civil Appeal No. 58 of 1968 against that decision. Both these appeals were heard together and decided by a common judgment by the learned Civil Judge, Mohanlalganj, Luck-now. The appeals were allowed and injunction was issued restraining the defendant No. 1, his servants, workmen and agents from making and causing to be made noise and vibrations from the impugned machines lodged in his premises on the ground floor of the building in question, so as to occasion nuisance, disturbance and annoyance to the plaintiff appellants, as the occupier of the residential portion of the first floor of the same building.

3. Aggrieved, Radhey Shyam has filed second appeal Nos. 133 and 134 of 1971. The appeal No. 133 of 1971 arises out of Suit No. 595 of 1964 whereas the Appeal No. 134 of 1971 arises out of Suit No. 34 of 1966. Since common questionsof law and fact are involved in both these appeals, they are being disposed of by one judgment.

4. The appellate court below has, on reappraisal of evidence adduced by the parties, recorded a finding in the following terms:--

'Having regard to the locality and the situation of the property and the class of people who inhabited the same, it appears to me that the running of the impugned machines seriously interferes with the comfort physically of the plaintiff appellant and the members of the family in the occupation of his house according to the ordinary notion prevalent among reasonable men and women.' The learned counsel for the appellant submitted that this finding should not be accepted and he referred me to the inspection note of Sri G. P. Srivastava, Civil Judge, Mohanlalganj, dated 10-9-1969. I have gone through that inspection note. It was found by the learned Civil Judge on his inspection that there was no residential premises immediately above the flour mill run by Mahabir Prasad. The shop of the defendant No. 1 is on the ground floor. In the same premises the plaintiff No. 1 resides on the first floor and has his professional office just above the shop of the defendant No. 1. The learned Civil Judge had inspected all the rooms occupied by the plaintiff No. 1 and he found that if the palm of the hand was placed on the walls vibrations could be noticed because of the running of the oil expeller machine. He also noticed that there was monotonous and continuous feeling of slight tremor or 'Zoom' sound because of the running of the oil expeller machine. The observation made by the learned Civil Judge were considered by the appellate court below while disposing of the aforesaid two first appeals. A commission was also issued by the trial court to make local inspection. His report and the site plan prepared by him are paper Nos. C-30 and C-31 which indicate that the residential portion of the plaintiff is just above the shop wherein the impugned machine is installed. The Commissioner had also reported that there were two other flour mills on the southern side of the lane shown in his map but they were covered by the tin shed and there was no residential portion over those flour mills. The flour mill of Mahabir Prasad is, however, situated in the same premises but there was no residential portion over that flour mill aswell. On these facts it was contended that the plaintiff who is a tenant in the premises in question has to put with certain amount of noise which is caused by the running of the oil machine and therefore, no injunction should have been issued in the case. The principles relating to private nuisance are by now well settled. In Dhanna Lal v. Chittar Singh (AIR 1959 Madh Pra 240) those principles have been succinctly enumerated as under:--

' (1) Constant noise, if abnormal or unusual, can be an actionable nuisance if it interferes with one's physical com-forts.

(2) The test of a nuisance causing personal discomfort is the actual local standard of comfort, and not an ideal or absolute standard.

(3) Generally, unusual or abnormal noise on defendants' premises which disturbs sleep of the occupants of the plaintiff's house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the plaintiff's house or which can not allow the occupants of the plaintiff's house to carry on their ordinary work is deemed to be a noise which interferes with one's physical comforts.

(4) Even in a noisy locality, if there is substantial addition to the noise by introduction of some machine, instrument or performance at defendant's premises which materially affects the physical comforts of the occupants of the plaintiff's house, then also the noise will amount to actionable nuisance.

(5) If the noise amounts to an actionable nuisance, the defence that the defendant is making a reasonable use of his own property will be ineffectual No use of one's property is reasonable if it causes substantial discomfort to other persons. 'If a man creates a nuisance' said Kekewish J. in Attorney General v. Cole & Sons, (1901) 1 Ch 205 at p. 207. 'He cannot say that he is acting reasonably. The two things are self-contradictory.'

(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 caseof public nuisance, but not in that of a private nuisance.

(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.

(8) The right to commit a private nuisance can in certain circumstances, be acquired either by prescription or by the authority of a statute.'

5. Applying principle No. (4) set forth above, 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. The appellate court below has found as a fact that the running of the impugned machines would seriously interfere with the physical comfort of the plaintiff ,and the members of his family according to the ordinary notions prevalent among reasonable men and women. This finding being based on evidence is not assailable in second appeal. The plaintiffs were therefore, rightly held to be entitled to the injunction claimed by them. There is no merit in both the appeals.

6. The appeals Nos. 133 of 1971 and 134 of 1971 are accordingly dismissed with costs.


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