Tek Chand, J.
1. This is plaintiffs appeal from the judgment and decree of the Additional District Judge, Ambala, reversing the judgment and decree of the trial Court which had decreed plaintiff's suit. The plaintiff had instituted suit for permanent injunction restraining the defendants from erecting or working flour mill, oil nxpellers. cotton ginning machine or any other power driven machinery in the premises shown as A B C D in the plan annexed to the plaint. The premises are situated in the new grain market within the municipal limits of Jagadhri, Defendants 5 and 6 Municipal Committee, Jagadhri and Market Committee, Jagadhri, are pro forma defendants. The plaintiff alleged that he was the owner of the plot marked C D E F on the plan and the defendants owned the contiguous plot marked A B C D. The plaintiff built a residential house on his plot C D E F and has been living there with his family, son and grandchildren. The contiguous plot of the defendants had been lying vacant for nearly ten years. The defendants 1 to 4 built a house in which they have installed a power driven flour mill, two oil expellers and rice husking machine and they are intending to set up there a cotton ginning plant The machinery was working day and night. It was stated in the plaint that the premises were reserved for residential purposes and as shops for sale. of agricultural produce and other consumer articles. The room in which the machinery has been installed is separated from the plaintiff's house by a wall. The noise and vibration caused by the working of the machinery are resulting in permanent loss of confort to the plaintiff, his family, their health and also in damage to the property. The working of the machinery is a continuing nuisance. The building has been actually damaged. It was stated that the installation of the machinery was against the rules and bye-laws of defendant No. 6. It was also mentioned in the plaint that M/s. Kirn Lal Dev Dutt of Jagadhri had filed a suit in 1958 in the Court or the Sub Judge against the Municipal Committee seeking an injunction restraining the said Committee from interfering with the working of the metal factory situated in the new grain market. This suit was dismissed, and it was held, that the running of a factory in that area would frustrate the very object for which grain market was established and the action of the Municipal Committee in refusing licence to the plaintiff was proper and reasonable.
2. The contesting respondents 1 to 4 in their written statement have denied the allegations and have, inter alia, contended, that the working of the machinery is not an actionable nuisance. The pleadings of the parties gave rise to the following issues:--
(1) Whether the working of and additional installation of the factory is nuisance to the plaintiff as alleged?
(2) Whether the defendants Nos. 1 to 4 have contravened any terms on which the property was sold to the parties as alleged? It so, to what effect?
(3) Whether the plaintiff has got no locus standi to file this suit?
On the first issue, the trial Court was of the view that no case of actionable nuisance was made out. On the second issue, the trial Court found that the erection of the machinery was in contravention of Punjab Agricultural Produce Markets Act. The third issue was not pressed by the defendants and was, therefore, decided against them. In view of findings on issue No. 2, the plaintiff's suit was decreed and permanent injunction was granted restraining defendants 1 to 4 from working the disputed factory or from erecting any other power driven machinery
3. The decision of the trial Court was successfully assailed by the defendants before the Additional District Judge, Ambala. On the first issue, the decision of the trial Court was affirmed hut on the second issue, the view of the lower appellate Court was, that if the defendants were carrying on the work without a proper licence from the Committee, then right of action belonged to the Committee but not to the plaintiff unless the defendants act amounted to a nuisance. He allowed the appeal.
4. The plaintiff-appellant in this Court has contested the finding of both the Courts on the first issue. The counsel for the respondents has maintained, that the finding that no actionable nuisance has been caused is a finding of fact and cannot be called into question in the second appeal. The plaintiff-appellant's counsel maintains that the finding of facl has been vitiated by errors of law committed by both the Courts. In view of the sketchy judgments of the lower Courts. I have cone through the evidence in this case. The lower appellate Court has disposed of the matter in the following two sentences:--
'The trial Court has found the issue of injunction against the plaintiff and nothing had been argued against that finding before me. Just because some noise would be emitted by working of the machinery, it cannot be called a nuisance'.
Actually, there is no 'issue of injunction'. The lower appellate Court does not refer to the first issue and does not say whether it has considered the finding of the trial Court, and on what grounds, it has come to its own conclusion. The second sentence is hardly a finding on the merits of the case. The principles of law which govern the nuisance of mis character were not referred to. There was no appraisal of the evidence. It is said, that nothing had been argued against the finding on the issue of injunction. If no arguments hud been addressed on the first issue, assuming that that is the issue which the lower appellate Court calls 'issue of injunction', there was no point in stating that in its view, the noise coming from the working of the machinery could not be called a nuisance. To my mind, this is the vital issue in this case and was put in the tore-front in the grounds of appeal before the lower appellate Court. Coming to the trial Court, the evidence of the witnesses by either party, has nut been referred to. The entire evidence consisting of ten witnesses, has been disposed of by the trial Court in one sentence namely, 'no case of actionable nuisance is made out from the statements of the plaintiff's witnesses'. The trial Court has not taken the trouble of adverting to a single witness or to his testimony. The evidence should have been mentioned in the judgment, duly weighed, and reasons for rejecting it should have been stated. The trial Judge has referred to the inspection note of his predecessor but the last sentence of the inspection note has been omitted. As translated, the inspection note reads:
'Seen the spot. In one room the oil ex-peller is working and in the other, the flour mill is working. The spot was also seen from inside the house of the plaintiff. The sound comes in the house of the plaintiff'. The next sentence of the inspection note which was not referred to by the trial Court is 'Ziyada tafseel na dekhi gai thi, kal pesh ho' -- (greater details were not gone into. To come tomorrow).
5. Order 20, Rule 4, Civil Procedure Code, requires, that judgments other than those of a Court of Small Causes, shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. In this case, no reasons have been given for arriving at its decision. The decision of a Court should rest not upon a conjecture, surmise or suspicion but upon legal grounds substantiated through legal testimony. No reference, whatsoever, has been made to the evidence either in support or in rebuttal of the first issue. It does not appear that the evidence has been considered at all. The matter has been disposed of by a single sentence, that no case of actionable nuisance is made out from the statements of the plaintiff's witnesses. I do not consider it a proper disposal according to the requirements of Order 20, Rule 4. It is not even a colourable pretence at considering the evidence. In the words of the Division Bench of Hyderabad High Court:
'Failure of Court to consider matter onevidence produced would ba regarded as dere- liction of duty'
vide Komrusetti Agayya v. Sub Judge, Secunderabad, AIR 1953 Hyd 190. In the instant case, no thought appears to have been bestowed upon the evidence which has not been considered, and obviously, has not been discussed. The colourable finding of fact cannot stand the scrutiny of law. To the alleged encroachment of the plaintiff's legal rights,correct tests have not been applied. Failure toconsider material evidence in arriving at a conclusion, or, resting decision on surmises andconjectures without considering the legalprinciples governing the conclusions as to theexistence of nuisance or not, vitiates a seemingfinding of fact. In the exercise of powers conferred on this Court under Section 103 of theCode of Civil Procedure, it is necessary todetermine issues of fact for the proper disposalof the second appeal and I proceed to do so.(After examining evidence in paras 6 to 17 hisLordship proceeded:--Ed.)
18. The evidence led by the plaintiff is credible and it shows that, apart from considerable discomfort which is experienced as a result of working of the machines, the plaintiff's building has also been damaged. The vibrations, shaking and the noise which the machines cause are or considerable intensity.
19. Actionable nuisances are of multiple varieties; and they include unreasonable noises or vibrations and other causes which are responsible for personal inconvenience resulting in interference with one's quiet enjoyment. In the very nature, it is not possible to lay down absolute standards. It is always a question of degree whether interference with comfort or convenience is sufficiently serious to constitute a nuisance. The seriousness is governed by time, place, extent or the manner of performance of operations that are said to have become a nuisance. In our modern society and in the machine age, every one must put up with certain amount of discomfort resulting from legitimate activities of one's neighbour. In the Courts, the old maxim sic utere tuo, ut alie-num non laedas--so use your own property as not to injure your neighbours, and the homely phrases 'give and take', 'live and let live' are indicative of the principles which are borne in mind, but these do not serve exact yardstick, for it is not possible to measyre -the extent of the discomfort or annoyance. It is generally conceded, that in determining the question whether a nuisance has been caused, a just balance must be struck between the right of the defendant to use property for his own lawful enjoyment, and the right of the plaintiff to the undisturbed enjoyment of his property. In order to be actionable, a nuisance mult materialy interfere with the comfort or convenience of ordinary persons judged by the standards of an average man. The substantial extent ot the discomfort has to be determined not merely with reference to the plaintiff, but from the point of view of any person occupying theSlaintiff's premises irrespective of his position in life, age or state of health. In the words of Knight-Bruce, V.C.. in Walter v. Selfe, (1851) 87 R.R. 387:
'Such an interference must be, 'an inconvenience materially interfering with the ordinary comfort physically of human existence not merely according to elegant or dainty modes of habits of living, but according to plain and sober and simple notions.
We have to bear in mind that lex non favet dellcatorum votis--the law favours not the wishes of the dainty. Another consideration to be borne in mind is the character of neighbourhood. A person living in the heart of the large manufacturing town cannot reasonably expect the same freedom from noise as in a secluded countryside.
20. In Sturges v. Bridgman, (1879) 11 Ch D 852 at p. 856, Thesigar, L.J., laid it down that 'whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermendsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting & public nuisance, judges and Juries would be justified in Ending, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong.'
21. In Cavey v. Ledbitter, (1863) 134 R.R. 610, Erle, C.J., said:
' 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.'
22. In Rushmer v. Polsue & Alfieri, Ltd., (1906) 1 Ch D 234, in a locality devoted to noisy trades, such as the printing and allied trades, the noise was increased to such an extent as to interfere substantially with the ordinary comfort of human existence according to the standard of comfort prevailing in that locality. That was considered sufficient by the Court of Appeal to constitute an actionable wrong, entitling the occupier to an injunction. The argument was advanced but repelled that a person living in a district specially devoted to a particular trade, cannot complain of any nuisance from noise caused by the carrying of any branch of that trade without carelessness and in a reasonable manner. It was conceded, that a resident in such a neighbourhood must put up with a certain amount of noise, and the standard of comfort differs according to the situation of property, and the class of people who inhabit it. It was observed that if a substantial addition in the noise had been substantiated, it was no answer to say that the neighbourhood was noisy. This decision of the Court of Appeal was affirmed by the House of Lords, vide Polsue & Alfieri, Ltd. v. Rushmer, (1907) AC 121.
23. Hoare and Company v. McAlpine, (1923) 1 Ch D 167 was a case of vibrations which had caused structural damage to an old house belonging to the plaintiffs. The observations of Lord Robertson in Eastern and South African Telegraph Co. v. Cape Town Tramways, (1902) AC 381 at p. 393 saying a man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure' were cited with approval, vide p. 173. It was found that an old building did not lose its ordinary right of protection against destruction from extraordinary forces that might be let loose to operate against them.
24. The above principles have been adopted by the Courts in India. Constant noise, if unusual or abnormal, interfering with one's physical comforts is an actionable nuisance, the test being that it causes personal discomfort according to the standards of comfort in the locality. Unusual or abnormal noise at defendants' premises disturbing the sleep of the occupants of the plaintiff's house during night and interfering with the occupants in carrying on their ordinary work is liable to be restrained by injunction. Even in a noisy locality, the additional noise caused by the defendants materially affecting the physical comforts of the occupants of the plaintiff's house, is liable to be restrained. In 'such a case, the defence that a reasonable use is being made by the defendant of his own property will be ineffectual. No use of ones property can be deemed reasonable if it causes substantial discomfort to others. Among decisions upholding the above principle, reference may be made to Ram Rattan v. Munna Lal,- AIR 1959 Punj 237 and Dhannalal v. Thakur Chittarsingh Mehtapsingh, AIR 1959 Madh Pra 240.
25. From the review of authorities, the following principles may be deduced:--
(1) In determining whether an actionable nuisance exists, the degree or the extent of the annoyance or the inconvenience is to be con-sidred. For what may amount to a nuisance in one locality may in another place and under different surroundings be deemed unobjectionable.
(2) As the precise degree of annoyance or inconvenience does not admit of exact calculation, each case depends largely on its own facto.
(3) The injury or annoyance which warrants a relief against the nuisance complained of must be of real and substantial character disturbing comfort or impairing enjoyment of property. For slight, trivial or fanciful inconvenience resulting from delicacy or fastidiousness, no relief can be granted.
(4) As a general rule, but allowing for known exceptions, a nuisance involves the idea of continuity or recurrence. Such a nuisance, if continued indefinitely, will be actionable though, not if indulged in only on one or two occasions.
(5) Actionable nuisance does not admit of enumeration and any operation which causes in-jury to health, to property, to comfort, to business, or to public morals, would be deemed a nuisance.
(6) In certain circumstances and under certain conditions, even a natural tendency to cause injury, and a substantial fear or reasonable apprehension of danger, may constitute a nuisance.
(7) Jarring and vibration caused to the plaintiff's premises, and noises exceeding a certain norm and interfering with the actual physical discomfort of persons of ordinarv sensibilities, are deemed actionable nuisances. They have to be of such an intensity as unreasonably interfere with the comfort and enjoyment of property although no physical injury to the health of the complaining party or his family is shown. But no fixed standard can be set as to quantum of noise that constitutes actionable nuisance and it is a matter which depends upon the circumstances of each case.
(8) Once a noise is considered to be a nuisance of the requisite degree, it is no defence to contend, that it was in consequence of of a lawful business or arose from lawful amusements or from places of religious worship.
26. In this case, the Courts below did not touch upon the legal principles which they were required to apply to the established facts of this case They did not consider, the evidence on the first issue, much less sift it. On the file of this case there is sufficient credible material to support the plaintiffs case for actionable nuisance. The nuisance consists not only in the excessive noise produced by the machines, but also in the vibrations, jarring and shaking of the plaintiff's house caused by the working of the defendant's machines; and on that account it has developed cracks, and has been damaged and rendered unsafe. If this nuisance is allowed to continue unabated, there is a reasonable apprehension of further damage.
27. Applying the legal principles mentioned above, to the proved facts and attendingcircumstances of this case, I am satisfied thatthe defendants are liable for the nuisance committed by them, which is of a degree and ofsuch intensity as to make it actionable. I, therefore, allow the appeal and grant permanent injunction restraining the defendants from the useof the machinery which has been installed inthe contiguous room indicated in the plan. Theappellant will be entitled to his costs.