Kan Singh, J.
1. This is a defendant's revision and is directed against an appellate order of District Judge, Alwar dated 8-5-67 and arises out of an application for grant of a temporary injunction pendente lite by the plaintiff-respondent.
2. Plaintiff Smt. Mahadevi and defendant Girdharilal are neighbours and have their houses adjacent to each other in the city of Alwar. In his house the defendant had first established a flour mill in March, 1965 and then some time in the last week of Feburary, 1967 he also established an oil mill consisting of a pair of 'Kolhus.' This led the plaintiff to bring a suit for a permanent injunction against the defendant for restraining him from working his flour mill as well as the oil mill. It was averred by the plaintiff that the running of the two mills was a cause of nuisance to her. According to her, as a result of the working of the two mills her house shakes and as a result of the shaking a crack has also been caused in that house. It was also alleged that the plaintiff was a heart patient and as a result of the thunderous noise created by the running of the two mills her ailment was aggravated. Also on account of the running of the flour mill and oil mill it was difficult to have good sleep at night, nor could the children living in the house be able to study Lastly, it was added that the crushing of 'Sarsen' emitted bad smell and thus plaintiff's living in the house had become very discomfortable. Plaintiff also made an application for grant of a temporary injunction under Order 39 Rule 2 of the Code of Civil Procedure. On this application the learned Munsif at the out set granted an ad interim injunction restraining the defendant from working the two mills beyond 8 p. m. When this matter came up for hearing before the learned Munsif, after the defendant was served with the notice, the learned Munsif confirmed the ad interim injunction in the terms in which it was granted. The learned Munsif in doing so observed as follows:--
'The main point to be decided in this case is whether the running of mills amounts to nuisance or not. Just because it makes noise it cannot be termed as nuisance. It remains to be seen from evidence, whether it is a nuisance or not. Prima facie defendant is working the machines with permission as provided in the law. If he is absolutely restrained from doing so then his machines could remain idle and he will suffer considerable loss and inconvenience.
In my opinion plaintiff has not made out a case for grant of injunction and complete stoppage of machines. I see no reason to change the interim order passed earlier. The plaintiff's application is dismissed.'
This order was passed on 29-3-67. Against this order of the Munsif both the parties lodged appeals before the learned District Judge; the plaintiff feeling aggrieved as temporary injunction was not granted in the terms it was desired by her, and the defendant felt aggrieved on account of the grant of temporary injunction. The learned District Judge, however, allowed the plaintiff's appeal and he set aside the order of the learned Munsif declining to issue the temporary injunction in the terms it was desired by the plaintiff and restrained the defendant from working the oil mill altogether. He, however, did not interfere with the order of temporary injunction so far as the running of the flour mill upto 8 p.m., as ordered by the Munsif, was concerned. Aggrieved by this order the defendant has made this revision application.
3. It was contended on behalf of the petitioner that the order of the learned District Judge was not only erroneous but it showed that the learned District Judge has completely disregarded the principles that should guide an appellate court in dealing with the grant of temporary injunction and in interfering with the order of a trial court in such matters. It is pointed out that the learned District Judge has really given no reasons for upsetting the order of the learned Munsif and, at any rate, he has not met the reasons adduced by the learned Munsif in support of the order. Apart from this, it is submitted that no expert has been examined by the plaintiff for showing that any cracks have been caused in the house of the plaintiff on account of the running of the oil mill or the flour mill. It is then argued that both the flour mill as well as the oil mill were erected after obtaining permission of the Municipal Board and the plaintiff had in the circumstances not made out any prima facie case. It is urged that the question whether there was any nuisance so as to amount to an actionable wrong has to be judged in the light of what obtains normally in the present day society in an urban area. It is submitted that flour mill or an oil mill are thereto serve the necessities of people living in the area and people have to bear a little discomfort also and for judging the reasonableness or the degree of discomfort the matter has to be approached from the point of view of an average individual and the mere fact that a particular individual may be suffering from some ailment will be no ground to prevent the carrying on of a normal avocation. In particular, attention was invited to the fact that the learned Munsif has taken into consideration the hardship that might result to the defendant with the complete stoppage of the running of the two mills as thereby he would be put to much loss and the learned District Judge has not paid due regard to the inconvenience or hardship of the defendant. Learned counsel invited my attention to Behari Lal v. James Maclean, AIR 1924 All 392, George Phillip v. Subbanmmal, AIR 1957 Trav-Co 281, Controller, Amanat Hai v. Wahid Ali, AIR 1956 Bhopal 48, Mathew Phillips v. P. O. Koshy, AIR 1966 Mys 74, Musa v. Badri Prasad, ILR (1953) 3 Raj 257 and Chand Sultana v. Khurshid Begum. AIR 1963 Andh Pra 365.
4. It was, on the other hand, argued by learned counsel for the respondent that a revision against the appellate order of the District Judge was not maintainable as, in the circumstances, it cannot be said that the court below has acted without jurisdiction or has committed any illegality in the exercise of its jurisdiction. On the merits learned counsel argued that a prima facie case has been made out by the plaintiff and that has been taken to be so by the learned District Judge. Learned counsel has placed reliance on Hari Shankar v. Gir-dharilal. AIR 1963 SC 698, M. L. & B. Corporation Ltd. v Bhutnath Banerjee, AIR 1964 SC 1336. Abbasbhai v. Gulamnabi, AIR 1964 SC 1341, Mishrilal Parasmal v. Sadasiviah, AIR 1965 SC 553, State of Ker-ala v. K. M. C. Abdulla and Co., AIR 1965 SC 1585, and Pandurang v Maruti. AIR 1966 SC 153. He also submitted that the learned Munsif had ordered the appointment of a Commissioner for going to the site and this was avoided by the defendant and learned District Judge has taken this fact also into consideration
5. I have carefully gone through the various cases to which my attention was invited by learned counsel on either side. The observation that their Lordships had made were in respect of exercise of revi-sional jurisdiction generally and in my view it will depend upon the facts and circumstances of each case whether in any particular case it can be predicated that the court below had acted without jurisdiction or in excess of it or it has committed any illegality or material irregularity in exercising its jurisdiction in a certain matter. A particular reference may be made to a Division Bench authority of this Court ILR (1953) 3 Raj 257 cited by Shri Lodha. It was a bench decision of this Court and it related to the grant of a temporary injunction pendente lite under Order 39 Rule 2 of the Code of Civil Procedure. In that case the plaintiff had brought a suit for a pt t petual injunction restraining the defendants from interfering with the plaintiff's fitting a motor engine in a certain well and from interfering with plaintiff's cultivating the land appurtenant to the well. The matter was first decided by the trial court and then an appeal was taken to the District Judge. It was against the appellate order of the District Judge that this Court was hearing the revision. It was pointed out in clear terms that 'it is a well established principle in the matter of temporary injunction that it is a discretionary order and the decision of the first court should not be easily interfered with even by the appellate court.' Their Lordships pointed out that the decision of the first court in that case was in favour of the defendants and, therefore, the appellate court ought to have been slow in interfering with the order of the first court. Then their Lordships stated the general principles that should govern a grant of a temporary injunction and their Lordships stated such principles in the following terms:
'Another well established principle in connection with temporary injunction is that the plaintiff should be able to satisfy that the following conditions exist: 1. that the plaintiff has a prima facie case,
2. that the court's interference is necessary to protect the party applying for temporary injunction from that species of injury which the court calls irreparable, before his legal right is established by the trial court, and
3. that the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it or in another words the balance of convenience.'
6. I will deal with the submission ot Shri Gupta that the view taken by this Court stands overruled by the Supreme Court cases noticed above, a little later. I may at the moment deal with the point whether the District Judge can be said to have dealt with the matter in the light of the principles laid down by this Court in Musa v. Badri Prasad's case, ILR (1953) 3 Raj 257. I will let the learned District Judge speak for himself. He observed:
'It may be stated here that for granting a temporary injunction the court has first to be satisfied that the plaintiff has made out a prima facie case, that the court's interference is necessary to protect him from irreparable or at least serious -injury, that the balance of convenience is in his favour and that there is no other remedy open to him by which to protect himself. In my opinion, all the requirements are fulfilled in the present case. Even the defendant has not seriously disputed that the house of the plaintiff shakes but has said that there is no danger of its falling. The fact that the plaintiff is a heart patient has also only been feebly denied and further it has been said that due to working of the machines the heart trouble had not occurred to the plaintiff. In the instant case, I am satisfied that it is fit and proper to restrain the defendant from working the oil mill (pair of Kolhus) till the disposal of the suit.'
7. In all fairness to the learned District Judge, it must be said, that he has, broadly speaking, stated the legal principles correctly, but he has left much to be desired in trying to apply them to the mat-ter before him. It was his duty to inter alia see that court's interference was necessary to protect the party from the particular kind of injury which the court could call irreparable, before the legal right of the plaintiff was established at the trial. Then it was further necessary to see as to what would be comparative mischief and inconvenience resulting from the refusal of such an in junction in relation to one result-i ing to the other side in the event of it being granted. The first court has in clear terms taken notice of the fact that by complete stoppage of the flour mill and the oil mill loss and inconvenience would be caused to the defendant and, therefore, it was in order to minimise this and at the same time to ensure reasonable enjoyment of the plaintiff's own property that the first court granted the temporary injunction in limited terms. The learned District Judge has not given sufficient thought to the resulting hardship or inconvenience to the defendant much less has he taken pains to make a comparison between the convenience of two sides and then arrived at a judicial verdict. He has been carried away by the fact that the plaintiff was the heart patient and that this fact has only been feebly denied by the defendant.
8. In AIR 1924 All 392 after referring to the observations of Lord Westbury in a case before the House of Lords, the learned Judges pointed out that a discomfort to be actionable should be substantial and the same should be substantial not merely with reference to the plaintiff but 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. In that case the plaintiff who was a lady doctor brought an action for restraining the defendant from running his mill in the neighbouring house as, according to the plaintiff, the running of the mill caused discomfort to the inmates of the plaintiff's house and also as the lady doctor was receiving heart patients for consultation, the patients also were put in serious discomfort and it was not possible for the lady doctor to examine them properly with her stethoscope.
9. While I do not propose to anticipate the verdict of the learned Munsif which will be arrived at after the consideration of the evidence and the legal principles that in his view may be applicable yet, as the matter stands, the learned District Judge has not approached the matter from correct legal principles and, therefore, his decision stands vitiated. He has not given sufficient reasons to deal with the grounds contained in the order of the learned Munsif. Learned District Judge has, however, referred to the conduct of the defendant in not giving proper facility for inspection and he has also said that the house of the plaintiff shakes and this was endangering the house making it unsafe to the inmates living under the roof there.
10. Now the matters do not stand merely at that. The thing which strikes me most is that the running of the flour mill has been permitted by both the courts, though it is up to 8 p.m. It cannot be denied that flour mill will also be producing vibrations. It has not been clarified whether the oil mill has an engine of a higher calibre and whether the oil mill produces more vibrations and consequent shaking of plaintiff's house. A perusal of the plaint shows that the plaintiff felt aggrieved on account of the running of both the flour mill as well as the oil mill and she made no effort to draw any distinction between the two. Perhaps the learned District Judge did not realise how the discomfort and damage will be prevented by al-allowing the flour mill and stopping altogether, the oil mill. These matters should have been thoroughly considered by the learned District Judge particularly when this Court had pointed out that an appellate court should be slow in upsetting a decision of a trial court in a matter relating to grant of a temporary injunction. Disregard of the well known principles laid down by this Court, in my view, constitutes an illegality in the exercise of jurisdiction on the part of the learned District Judge.
11. As already observed above. Shri Gupta endeavoured to show that the pronouncements of their Lordships of the Supreme Court in the cases cited by him has the result of overruling ILR (1953) 3 Raj 257. Having read what their Lordships were pleased to lay down. I am unable to come to this conclusion. AIR 1963 SC 698 related to the interpretation of Section 35 of the Houses and Rent Control Act In AIR 964 SC 1336 their Lordships were examining whether in a case where benefit of S 5 of the Limitation Act had been allowed, the High Court could have interfered in such a matter. Similarly, the other cases also turn on the question whether the findings of facts given or errors of law committed by lower courts could be interfered with. I am, however, unable to read these several cases to lay down that even in a case where the court comes to the clear conclusion that the court below has committed an illegality in exercise of its jurisdiction, the High Court will not be in a position to interfere with such an order in exercise of the revisional jurisdiction.
12. In the present case let us envisagea position where the District Judge weremerely to say that he has borne the principles underlying Order 39 Rule 2 of theCode of Civil Procedure in mind and having examined the order of the trial courthe comes to the conclusion that the orderhas to be interfered with. A serious question arises whether a District Judge couldbe allowed to deal with a matter like thisin appeal and whether the High Court willbe in no position to interfere with such anorder. In my view, where the approachof an appellate court in hearing an appealagainst an order under Order 39 Rule 2 ofiCivil P. C. has been wholly wrong andis contrary to the well-established principlesas laid down by this Court and furtherwhere the appellate court has not dealtwith the reasoning that has prevailed withthe trial court, it will be a case where thisCourt will be competent to exercise itsrevisional jurisdiction under Section 115 ofthe Code of Civil Procedure and, in myview the revisional jurisdiction of theCourt does not stand ousted in such a matter on account of the pronouncements towhich Shri Gupta has made a reference.At any rate, it is more than I can say thatthe Division Bench case of this Court doesnot hold the field or it stands overruled bythese decisions of their Lordships of theSupreme Court. This Court in ILR (1953)3 Raj 257 has clearly dealt with a matter ,decided by a District Judge in appeal arisingout of an application under Order 39 Rule 2of the Code of Civil Procedure and thatcase affords ample guidance for deciding thepresent revision application.
13. Now the learned Munsif had allowed both the flour mill and the oil Mill tobe run by the defendant upto 8 p.m. Therespondent has obviously reconciled to theposition that flour mill may be allowed torun upto 8 p.m. It is common knowledgethat flour mills or the oil mills do not runall the time. It depends on several factors,such as, supply of power and the getting ofrequisite customers to necessitate their running. It cannot be disputed that the complete stoppage of the oil mill altogethereven during the period of the flour mill maynot be running would result in avoidablehardship to the defendant. I consider, inthe circumstances, that it will be just and proper if the defendant is allowed to run either of the two mills, that is. flour mill or the oil mill one at a time on each day between the hours 8.00 a.m. to 8 p.m.
14. In the circumstances I allow this revision application in part and setting aside the order of the District Judge dated 8-5-67. I hereby order that the defendantshall be restrained only from running boththe mills simultaneously, but the defendantshall be free to run either of the two millsbetween the hours 8.00 a.m. to 8.00 p.m.The parties are left to bear their own costsof this revision application.