K.N. Wanchoo, C.J.
1. This is a revision by Achalchand against the order of the Sessions Judge of Jodhpur in a case under Section 133 of the Code of Criminal Procedure.
2. The facts of the case which have led to this revision are these. Surajraj, opposite party, and Achalchand are neighbours with a common wall between their houses, Achalchand made certain constructions on this common wall. Surajraj felt that these constructions were dangerous and the wall was likely to fall down causing injuries to him and members of his family. He consequently madean application under Section 133 of the Code of Criminal Procedure to the Magistrate and prayed that action should be taken against Achalchand.
The Magistrate made an enquiry into the matter and found on evidence, which is not in dispute, that certain new constructions had been raised by Achalchand on the old common wall and that part of these constructions was in a dangerous condition inasmuch as according to the expert evidence, the wall was not in a plumb line and was displaced by 7 1/2 inches and was thus likely to fall down. The Magistrate, therefore, ordered Achalchand to make certain repairs,
3. Achalchand filed a revision before the learned Sessions Judge and the main contention raised on his behalf was that such a case was not covered by Section 133 of the Criminal Procedure Code. This contention was repelled by the learned Judge and the revision was dismissed. Consequently, Achalchand has come to this Court and the only contention raised on his behalf before me is that such a case is not covered by Section 133 Cr. P. C. The main argument is that Section 133 Cr. P. C. deals with public nuisances and this is not a case of public nuisance.
4. It is no doubt correct that Section 133 appears in Chapter X which is headed Public Nuisance. But we have to look at the relevant words of the section to decide whether action can be taken by a Magistrate in circumstances like the present. Now the relevant portion of Section 133 is in these words:
'Whenever a District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit,
that any building, tent or structure, or any tree is in such a condition that it is likely to fall and; thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary such magistrate may make a conditional order .........'
5. Learned counsel for the applicant urges that what Section 133, Criminal P. C., contemplates is public nuisances and where as in this case a wall is likely to fall down inside the house of a neighbour and cause injuries to him and members of his family, the case is not covered by Section 133. I am of opinion that there is no force in this contention. Looking to the relevant words, with which I am concerned, all that is required in a case of this kind is that the building should be likely to fall down and thereby cause injury either to persons living or carrying on business in the neighbourhood or to those passing by.
It may be accepted that perhaps in this case no damage will be caused to persons passing by, for the wall in dispute is perpendicular to the road and only a corner of it abuts the road and that corner is not said to be in a dangerous condition. But the evidence is that the inner part of the wall is likely to fall down into the house of a neighbour, namely Surajraj and if it does so, injury may be caused to Surajraj and members of his family living in that house. To my mind, it is enough if a building is likely to fall down and by so falling down cause injury to persons living in the neighbourhood. The building in which Surajraj is living is in the neighbourhood of Achalchand. The constructions in question belong to Achalchand. They are likely to fall down and cause damage to his neighbour. In such a case, Section 133 would apply and I would go as to say that it would be a case even of public nuisance. In the present case there is some complication as the wall is said to be joint wall and there is some dispute as to who should repair it.
But take a simple case where there are two houses next to each other. One of the houses is very high and at the top storey is a dilapidated structure which is likely to fall down any time into the neighbour's house. In such a case, there can, in my opinion, be no doubt that that structure in the top storey is a public nuisance inasmuch as it is in a dangerous condition and likely to fall down in the neighbour's house and cause injury to the neighbour.
The fact that the neighbour is known is no reason for holding that it will not be a public nuisance land action cannot be taken under Section 133 of the Code of Criminal Procedure. Learned counsel for the applicant referred in this connection to Queen-Empress v. Jasoda Nand, ILR 20 All 501, where a house stood inside a compound. In such a case, even if the house fell down, there would be no danger to any neighbour or to any person living or carrying on business in the neighbourhood or to anyone passing by; the danger, if any, would only he to the persons living in the house.
Of course, Section 133 does not contemplate action by a Magistrate when the danger is only to the inmates of the house or building which is said to be in a dangerous condition. But here the danger is not merely to Achalchand. It is also to his neighbour Surajraj. As soon as danger appears to a neighbour also, the conditions of Section 133 o the Code of Criminal Procedure are fulfilled and such a dangerous structure can even be called a public nuisance. There is no force in this revision and it is hereby dismissed.