Kanhaiya Lal and Mukerji, JJ.
1. The plaintiff, Tmamuddin, owns a house situated in Bazar Katra Ahmadganj, in Farrukhabad city. The house is occupied by the other plaintiffs, one of whom is a clergyman and the other, who is his wife, practises as a lady doctor. Behind this house is situated a house belonging to the defendant where a flour mill worked by an oil engine has been recently started. The allegation of the plaintiff was that the working of the flour mill caused great trouble to the occupants of the house and interfered with their business and ordinary physical comfort. The defendant stated that be had been working the flour mill in another house situated at a distance of about 20 to 25 paces from that place from nine years, that that house was recently purchased by Mathura Prasad who started a steam engine of his own in that locality, and that he had consequently to shift from that place to the present house.
2. Both the courts below inspected the locality and came to the conclusion that the working of the flour mill in that locality undoubtedly interfered with the comfort of the occupant's of the house and disturbed them in carrying on their usual business. The Court of first instance referred to the evidence of one of the plaintiffs and stated that the soot arising from the chimney of the oil engine would spread iniio the house of the plaintiffs and fall upon the articles kept there, that there would be bad smell produced from the kerosine oil used in the engine, and that the noise resulting from the close proximity of the house of the plaintiffs to the place where the engine was worked would cause substantial inconvenience to the tenants occupying the same and more so to the lady doctor who had to use a stethoscope to examine the hearts and the lungs of the patients coming to her for treatment. The lower appellate court made no attempt to discuss the evidence at all. The view taken by it was that the smell of the smoke from the engine caused little discomfort' but the noise and regular throb of the engine so close to the house of the plaintiffs was '' a distinct and pervading nuisance' to the occupants of the house, whose nerves would naturally be disturbed till in course of time they got accustomed to the same.
3. What may, however, cause inconvenience to persons with dainty or elegant modes or habit of living may not cause similar inconvenience to persons accustomed to live in the busiest portion of a town. A discomfort to be actionable should be substantial. It should be substantial not merely with reference to the plaintiff; it must be of such a degree that it would be substantial to any person occupying the premises of the plaintiff, irrespective of his position in life, age, or state of health. As pointed out by Lord WESTBURY, in St. Helen's Smelting Co., v. Tipping (1865) 11 H.L.C., 642, there is a distinction between an action for a nuisance in respect of an act producing a material injury to property, and one brought in respect of an act producing personal discomfort. As to the latter a person must, in the interest of the public generally, submit to the discomfort of the circumstances of the place, and the trades carried on around him The nature of the interference has to be examined in each case in the light of the circumstances of the place where the thing complained of actually occurs, and the degree of inconvenience caused must determine the nature of the relief to which the person complaining may be entitled.
If a man lives in a town,' said Lord WESTBURY, 'it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop.
4. But where an occupation is carried on by one person in the neighbourhood of another, and the result of that trade or occupation or business is a material or substantial interference with the ordinary physical comfort and convenience of another person, residing in that locality, then very different considerations unquestionably arise.
5. No attempt was made by the courts below to determine how long this oil engine had been at work, if not in this house, at least in the locality close to this building. The lower appellate court does not say that the disturbance would be so substantial as to render the house practically uninhabitable for ordinary people without serious discomfort. It is in evidence that Mathura Prasad had a flour mill worked by a gas engine at about 20 to 25 paces from this locality. It is also in evidence that the present Chairman of the Municipal Board has in his own compound at Fatehgarh, close to a public hospital, where patients have to be examined from time to time by the medical attendants, a flour mill in working order, to which no objection has ever been taken on the score of discomfort or otherwise by the residents of the locality. There is also evidence to show that an attempt was made to move the Municipal Board under Section 245 of the U.P. Municipalities Act (I of 1916) to remove the oil engines working within Municipal limits or to stop the starting of factories worked by oil engines there, and that the Municipal Board refused to take any action in the matter. Several residents of the locality, where the flour mill engine is at work, were produced on behalf of the plaintiffs to show that no discomfort was. suffered by the neighbours or residents of that locality. A sub-assistant surgeon was, moreover, examined who stated that he had seen the flour mill engine actually at work and that the noise produced by the oil engine was of an ordinary character and that no injury to the health of the residents of the locality was likely to result from the working of that engine at that place. We are prepared to give due weight to the observations made by the court's below on an examination of the locality and have no doubt that the noise produced by the engine must be a source of some inconvenience to the persons residing there. But a flour mill worked by a gas engine is already in existence in that locality and from the fact that such flour mills exist in. other parts of the town, we are not prepared to say that any reasonable case for the removal of the flour mill or oil engine has been made out.
6. Whether anything is a nuisance or not is a question to be determined not merely by an abstract consideration of the thing itself but with reference to its circumstances; and where a locality is used for the purpose of carrying on a trade or manufacture, the fact that such trade or manufacture does exist elsewhere, not far from the place, cannot be left out of account. As pointed out by Clerk and Lindsell, the affairs of life in a dense neighbourhood cannot be carried on without mutual sacrifices of comfort; and in all actions for discomfort the law must regard the principle of mutual adjustment; and the notion that the degree of discomfort which might sustain an action under some circumstances must, therefore, do so under all circumstances is as untenable as the notion that if the act complained of was done in a convenient time and place, it must therefore be justified, whatever was the degree of annoyance that Was occasioned thereby. (Clerk and Lindsell on Torts, 6th edition, p. 419).
7. It is not seriously suggested that the house of the plaintiffs will become wholly untenable by reason of the construction of the flour mill or the use of the oil engine; and we do not consider that any substantial interference with the physical comfort and convenience of the residents of the house has been made out. In these circumstances we allow the appeal and dismiss the plaintiffs' suit with costs here and hitherto.