A.N. Grover, J.
1. This order will dispose of both the appeals. (Regular Second Appeal No. 1350 of 1957 and Regular Second Appeal No. 135 of 1958).
2. In order to appreciate the points involved in the appeals it is necessary to state the facts shortly. On the 20th June 1954 Munsha Singh sold a house to Ram Rattan. Later on there was some agreement between Munsha Singh and Ram Rattan in August, 1954 which was attested by Dalip Singh, the son of Munsha Singh, according to which Ram-Rattan was allowed to set up power-looms in they house which had been sold to him. Munsha Singh declared that he would have no objection to the working of the power looms by day or at night.
After applying for sanction of the Municipal Committee, Ram Rattan set up two power-looms in the house which he had purchased from Munsha Singh. Four days before the sanction was granted a suit was filed by Munna Lal, a neighbour of Ram Rattan, and Dalip Singh, the son of Munsha Singh, for a permanent injunction restraining Ram Rattan-and his brother from working the power-looms which, according to the plantiffs, amounted to a nuisance and from continuing the same and making any further addition to the looms. The Municipal Committee was also impleaded as defendant No. 8.
The trial Court after framing the necessary issues came to the conclusion that the working off the two power-looms in dispute caused considerable noise although it was not unbearable but all the same it affected the health, comfort and sleep of the plaintiffs and their family members and if allowed to be aggravated, it might amount to a nuisance. A decree was granted for permanent injunction calling upon defendants Nos. 1 and 2 not to get licence for any further power-looms nor to set up .any other looms besides the two power looms which were already being worked in the premises.
A further decree was granted restraining defen-dant No. 3 from giving licence for any more power-looms to defendants Nos. 1 and 2. The prayer with regard to the grant of permanent injunction restraining defendants Nos. 1 and 2 from working the existing two looms was refused. The plaintiffs and defendants Nos. 1 and 2 were dissatisfied, and filed two separate appeals which were disposed of by the learned Senior Subordinate Judge an 9th November, 1957.
The learned Judge came to the conclusion that from the evidence of the parties it was evident that the locality where the house was situate was industrial and most of the houses had electric meters and in that area various industries were being run and it had become a sort of manufacturing and industrial area. He agreed with the decision of the lower Court that the working of the two power-looms caused considerable noise although it was not unbearable and if allowed to be augmented it anight amount to a nuisance. The appeal of the defendants was dismissed. While disposing of the appeal of the plaintiffs it was stated as follows :
'Considering all the circumstances of the case and while upholding the judgment and decree of the learned lower Court, I further grant the plaintiffs a decree for permanent injunction restraining defendants Nos. 1 and 2 from working the already exis-ting two power-looms in dispute at night from 9 p.m to 6 a.m.'
To this extent the decree was modified. The plaintiffs as well as the defendants have come up in appeal to this Court. The Municipal Committee never filed any appeal before the lower appellate Court nor has any appeal been preferred here by the Committee.
3. Mr. Kishan Sarup Thapar who has argued the defendants' appeal has contended that the lower appellate Court was in error in modifying the decree which had been granted by the trial Court. It is pointed out that no reasons have been given for making the modification in the matter of working of the looms and for restraining the defendants from working the same at night between 9 p. m. and 6 a. m. Mr. Thapar has relied on the decision of the trial Court which was based on a correct appreciation, according to him, of the principles applicable to cases of this nature,
It is urged that there was ample evidence on the record that the locality in question was an industrial area and that the lower appellate Court has also arrived at the same conclusion. It is further pointed out that there are other houses in the neighbourhood or premises where looms are working day and night, and even in the house of plaintiff No. 1 machinery is installed and is working which involves the running of lathes and electric motors. In the house of Dalip Singh also machinery is installed which works all the time and where cycle parts are manufactured.
Apart from this it is in evidence and also in the inspection note of the trial Court that Ram Sarup, another brother of the defendants, is working 23 power-looms in the neighbourhood which also create noise and the plaintiffs have been living and have chosen to live in a locality where noise was already being produced of such a nature that would ordinarily affect comfort of persons residing in that locality. In such circumstances, according to Mr. Thapar, what has to be seen is whether the two looms which were installed by the defendants have increased the noise to such an extent that it can be regarded to amount to a nuisance.
He relies on the test which has been adopted by the trial Court, namely whether the noise had become unbearable so as to affect the health, comfort and sleep of the plaintiffs and their family members. The true test in such cases has been laid down by Mr. Justice Warrington in Rushmer v. Polsue & Alfieri Ltd., (1906) 1 Ch. 234. In that case it has been held that in a locality devoted to noisy trades such as the printing and allied trades, if a printing-house or factory subjects the occupier of an adjoining residence to such as increase of noise as to interfere substantially with the ordinary comfort of human existence according to the standard of comfort prevailing in the locality, that is sufficient to constitute an actionable wrong entitling that occupier to an injunction. The judgment of Warrington J. contained the following statement of the legal principles which, in his opinion, were applicable to such cases --
'The question I have to answer is whether the defendants, by working the machine in question, seriously interfere with the comfort, physically, of the plaintiff and his family in the occupation of his house according to the ordinary notions prevalent among reasonable English men and women Walter v. Selfe (1851) 4 De G. & Sm. 315 at p. 322; and for the purpose of answering this question I am not to look at the defendants' operations in the abstract and by themselves,' but in connection with all the circumstances of the locality, and in particular in reference to the nature of the trades usually carried on there, and the noises and disturbance existing prior to the commencement of the defendants' operations; Sturges v. Bridgman, (1879) 11 Ch. D. 852 at p. 865; St. Helen's Smelting Co. v. Tipping, (1865) 11 H.L.C. 642. But if, after taking these circumstances into consideration, I find a serious and not merely a slight additional interference with the plaintiffs comfort as above defined, I think it is the duty of the Court to interfere; Crump v. Lambert, (1867) 3 Eq. 409. This seems to me to be the true result of the authorities.'
In that particular case it was found that although in the day time the plaintiff must have been subject to soms noise from printing works in the immediate neighbourhood, no disturbance at night had been caused by noise arising from any of those sources. Secondly, regarding the ordinary working hours in the daytime, the plaintiff had not proved such a substantial addition to pre-existing noises as would amount to a legal nuisance.
Thirdly, the night working of the defendants' machines caused a serious disturbance to the plaintiff and his family such as had not previously been experienced by them. On these facts it was held that a legal nuisance had been committed by the defendants entitling the plaintiff to an injunction. The matter was taken to the Court of Appeal. Vauglian Williams L. J. after examining several other cases observed at page 247 as follows :
'Again I do not think the fact that the noise of the defendants' printing machine was a substantial addition to pre-existing noises would amount to a legal nuisance, if such noise was only the result of carrying on the trade in the district devoted to that trade according to the particular and established manner. So to hold would, in my judgment, be to disregard the standard of comfort which a person living in such a district would have a right to expect, and, in effect, to hold, as Mr. Terrell argued, that the plaintiff in such circumstances would have suffered a private actionable wrong, unless the defendant could establish a prescriptive right, which I much doubt whether he could ever do in respect of a nuisance which he could not prevent, and therefore could not acquiesce in. I do not thinly to use the words of Lord Westbury, that the plaintiff would have, in such a district, a good cause of action merely because to himself individually there may arise much discomfort from the trade carried on in* the newly opened printing office. It may be however, that; Warrington J. did not intend by his judgment anything to the contrary of this, and that he really intended to find that the defendants' trade was not being carried on in the particular and established manner of the printing district, but caused serious disturbance to the plaintiff and his family by making noise in excess of those made by carrying on the trade in the particular and established manner of the trade of the district. I should not myself have arrived at this conclusion on the evidence as it appears from reading the notes, but I agree that thi' is not a sufficient ground for reviewing the decision of the learned judge if he, in fact, applied the principles established by (1865) 11 H.L-C. 642, and (1879) 11 Ch. D. 852.'
Cozens-Hardy L. J. at page 250 made certain observations which deserve notice. Before him it had been contended by Mr. Duke that a person living in a district specially devoted to a particular trade could not complain of any nuisance by noise caused by the carrying on of any branch of that trade without carelessness and in a reasonable manner. The learned Lord Justice did not assent to that argument.
According to him a resident in such a neighbourhood must put up with a certain amount of noise. The standard of comfort differs according to the situation of the property and the class of people who inhabit it. This idea was expressed by Thesiger Lord Justice in (1879) 11 Ch D 852, when he said that what might be a nuisance in Belgrave Square would not be a nuisance in Ber-mondsey.
But whatever the standard of comfort in a particular district may be, the addition of a fresh noise caused by the defendant's works may be so substantial as to create a legal nuisance. The matter was taken further in appeal to the House of Lords. The Lord Chancellor, Lord Lorebum, in Polsue and Alfieri Ltd. v. Rushmer, 1907 AC 121 while affirming the judgments of Warrington J., and the Court of Appeal made the following ob-servations:
'There was evidence sufficient to shew that, taking into consideration the character of the locality and the noises there prevailing, yet a serious addition had been caused by the defendants. In my opinion that was quite sufficient to warrant the conclusion arrived at by the learned Judge and the Court of Appeal.
I agree with Cozens-Hardy L. J., when he says: 'It does not follow that because I live, say, in the manufacturing part of Sheffield I cannot complain if a steam-hammer if introduced next-door, and so worked as to render sleep at night almost impossible, although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard; and it would be no answer to say that the steam-hammer is of the most modern approved pattern and is reasonably worked.'
4. The essential test, therefore, is to see whether there has been a serious addition by the working of the power-looms in dispute to the noise which were already prevailing in the locality. P. W. 7, Dalip Singh, one of the plaintiffs, stated that his health had been affected quite a bit by the noise made by the looms of Ram Sarup, but he had no opportunity of making any complaint with regard to them and that the noise which was made by the two looms in dispute was less than the noise created by Ram Sarup's power-looms,
He further stated that he did not object to the working of the looms in question during the day time but lot of discomfort was experienced at night. P. W. 8, Munna Lal, the other plaintiff, stated that owing to noise which had been created by the looms in dispute he had developed as-thema and colds and that the noise interfered with the ordinary comfort of the ordinary man and that it also affected the nervous system.
He further stated that the factory of Ram Sarup was three houses away from his house. In Ram Sarup's factory eighteen or nineteen looms had been installed before he started living in the locality. The noise created by the looms in dispute coupled with the noise produced by Ram Sarup's looms became very substantial. It was further stated by him that before the two looms in dispute had been installed, the discomfort was not so great from the noise which was created by the looms in Ram Sarup's factory.
It is difficult to come to a finding from this evidence that there had been a serious addition to the noises which already existed in the locality although there can be no doubt that there had been an addition of a fair amount of noise. The trial Court had also come to the conclusion that although the working of the. two power-looms caus- ed considerable noise, it was not unbearable. This finding was sustained by the lower appellate Court.
According to Mr. Wadehra, who appears on behalf of the plaintiffs, the test that had to be applied was one of reasonable. discomfort, and it the looms in question created a noise which caused discomfort and affected the health of the inhabitants living in the locality, it amounted to an actionable nuisance. It is further contended by him that according to the evidence there can be no manner of doubt that there was material interference with the comfort of the plaintiffs by reason of the two looms which had been installed.
I consider, after examining the whole matter carefully, that the findings which have been arrived at by the Courts below are based on a correct appreciation of the evidence and the principles which are applicable to such cases. The use of the word 'unbearable' may not be happy, but what appears to have been found is that there has not been such a serious addition to the noise which already existed in the locality as to warrant the conclusion that a nuisance is being caused by the working of the two looms.
The question still remains whether the order of the lower appellate Court with regard to the restraining of the working of the looms at night should be interfered with or not. Mr. Thapar who appears on behalf of the defendants has pointed out from the inspection note that if the windows on the western side and the outer door are kept closed, then the noise created by the two looms is considerably lessened. Mr. Thapar on behalf of his clients has offered to undertake that the aforesaid windows and the door will be kept closed at night. In the circumstances of the case consider that on this undertaking being given the defendants should be allowed to work the looms at night as well.
5. Another point was raised by Mr. Thapar with regard to the injunction which has been granted by both the Courts below to the plaintiffs restraining the defendants from setting up more power-looms in addition to the two looms which ure already working. According to Mr. Thapar, there was no immediate prospect of the additional looms being installed and therefore no injunction ought to have been granted. This matter, how-ever, was not agitated in the grounds of appeal before the lower appellate Court nor was it argued before it.
Even in the grounds of appeal which have been filed here this point has not been raised in so many words. There is already an injunction which has been granted against the Municipal Committee restraining the Committee from granting any license to the defendants for more power-looms. That injunction stands as the Municipal Committee has not appealed and there can be no interference with that part of the decree of the Courts below. In these circumstances, I am not inclined to accept the contention that has been raised with regard to the injunction granted in the matter of installing additional power looms.
6. In the result, the appeal of the defendants is allowed only to this extent that instead of the modification made by the lower appellate Court, the order of the trial Court shall be modified only to the extent that the defendants shall be restrained from working the power-looms in dispute at night from 9 p. m. to 6 a. m. unless they keep the windows situate on the western side and the outer door closed.
In other words if they keep them closed, they shall not be restrained from working the looms muring that period as well. In all other respects the order of the trial Court is maintained. In view of what has been stated above, I do not find any force in the appeal of the plaintiffs which is dismissed In the circumstances of the case the parties will be left to bear their own costs in this Court in both the appeals.