Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of the learned Subordinate Judge, Second Court, 24-Pargannahs, whereby he dismissed the plaintiffs' suit. The plaintiffs are the owners of certain premises, No. 32, Kali Krishna Tagore Road, which lie on the north side of the road, and the defendants are the owners of certain mills, which He on the south side of that road. The plaintiffs' premises include a consecrated temple at which, it is alleged a large number of people call daily and on festive occasions to worship the Thakur and the plaintiffs and their relations also worship the said Thakur an ceremonial and other occasions. In addition, the priest and other people live on the premises throughout the year for the purposes of service of the said Thakur.
2. There is septic tank on the south side of the road on the defendant's premises and lying to the east of the plaintiffs' premises and it is alleged that offensive smells emanated from that septic tank and complaints had been made from time to time in respect to that. In July 1919, the plaintiffs, through their Attorney, wrote to the defendants' Managing Agents a letter intimating in effect that they had been informed that the defendants were about to erect another septic tank on the south side of the road and opposite to the plaintiffs' premises and alleging that inconvenience and nuisance were likely to arise therefrom and asking them to abstain from erecting the septic tank in that particular place. No answer was given to that letter, with the result that this suit was instituted on the 22nd August 1919, and an ad interim injunction was granted until the hearing of the suit with the re-suit that the erection of the new septic tank, which had been partially constructed, was stopped for the time being. The suit was heard by the learned Subordinate, Judge and he dismissed the suit on the 1st July 1920. We were informed by the learned Counsel for the defendants that the Hew septic tank was completed within about two months of the 1st July 1920. This appeal was filed on the 23rd July 1920, and we have now to consider whether, in our judgment, the decision at which the learned Judge arrived was a correct decision.
2. It is to be noticed that, at the time the suit was brought, no nuisance had, in fact, been committed in respect of the new septic tank, because, as I have already stated, the septic tank was not completed at the time the suit was instituted. The question, in the first place, is what is the principle upon which such a suit as this is to be decided. The main prayer in the plaint was that a permanent injunction should be granted restraining the defendant Company from erecting a septic tank at the place which I have already described, and from using the place as a latrine or permitting any such use. In my judgment, the principle is correctly laid down in Kerr on Injunctions, 5th Edition, at page 157. There I find it stated as follows:
The Court will not in general interfere until an actual nuisance has been committed; but it may, by virtue of its jurisdiction to restrain acts which, when completed, will result in a ground of action, interfere before any actual nuisance has been committed where it is satisfied that the act complained of will inevitably result in a nuisance. The plaintiff, however, must show a strong case of probability that the apprehended mischief will in fact arise in order to induce the Court to interfere.
3. In the case to which the learned Subordinate Judge has referred, namely Fletcher v. Bealey (1885) 28 Ch. D. 668 : 54 L.J. Ch. 424 : 52 L.T. 541 : 33 W.R. 745 the learned Judge after referring to certain well-known cases such as Earl of Ripon v. Hobart (1834) 3 My. & K. 169 : Coop. t. Brougham 333 : 3 L.J. (N.S.) Ch. 145 : 41 R.R. 40 : 40 E.R. 65 and Attorney-General v. Corporation of Manchester (1893) 2 Ch. 87 : 62 L.J. Ch. 459 : 3 R. 427 : 68 L.T. 608 : 41 W.R. 459 : 57 J.P. 343, is reported to have said, 'I do not think, therefore, that I shall be very far wrong if I lay it down that there are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes; be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown that, it the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia twist action.' I propose to apply those principles to the consideration of this case. It is clear to my mind on the evidence that the use of the septic tank had been approved by the proper authorities and by fully qualified scientific men as a proper system in a neighbourhood where there is no sufficient, drainage system, and on the evidence given by both sides 1 n this case, to my mind, it is clear, that the septic, tank which was proposed to be erected at the time this suit was tried, ought not to be a nuisance if it were properly used and if its capacity were not over-taxed. The only nuisance which is anticipated in this, case is that of an offensive smell, and the learned Judge's finding of fact is as follows: 'It is has been abundantly proved by the witnesses examined on defendants' side and also by Dr. Brown (who is also a great authority and who is plaintiffs' witness) that the new septic tank, if property run and used, would emit no smell, would cause no nuisance.'
4. The learned Vakil, who has argued this case for the appellants, has not disputed that point, but he has argued that upon the evidence the Court ought to come to the conclusion, that' this new septic tank must inevitably become a nuisance, inasmuch as the capacity of the new spetic tank must inevitably be over-taxed. He has drawn our attention to the number of workmen for whose use the privy and the urinals were to be erected. He has drawn our attention to the amount of water which would flow through the septic tank during the course of the day and he has drawn our attention to the fact that the matters which are alleged to be improvements upon the old tank were not in fact included in the plans which were submitted to the respective authorities, Dealing with the last question first, I am satisfied upon the evidence, that the site was approved by the Municipal Authorities, and although there may be some doubt as to which plan was submitted to which official, I am satisfied that the Sanitary Commissioners did approve of the design of the new septic tank and that at the time when this suit was tried, it was stated by those who were responsible for the erection of the septic tank that the improvements which were mentioned, were to be carried out. In my judgment, it is clear upon the evidence, that if those improvements were carried out there should be no reason why the capacity of the new septic tank should be over-taxed; nor would there be any reason why the new septic tank should become a nuisance. On these findings of fact, applying the principle which I have already stated, and which must be applied to a case of this kind, in my judgment, it is impossible to overrule the learned Judge's decision, viz., that at the time when he tried this suit, the plaintiffs had not proved sufficient to entitle them to an injunction restraining the defendants from erecting the new septic, tank. The learned Judge ,in his judgment said, 'If it turns out that the new tank is not properly working and emitting an offensive smell, plaintiffs would have the right to bring another action hereafter.' He then referred to the case, of Fletcher v. Beaky (1885) 28 Ch. D. 668 : 54 L.J. Ch. 424 : 52 L.T. 541 : 33 W.R. 745. I, understand, that the learned Judge meant by that reference that his judgment was given without prejudice, to any future proceedings which the plaintiffs might be, advised to take in case the new septic tank should in fact become a nuisance; at any rate, as far as my judgment is concerned, it is to be understood that it is without prejudice to any future proceedings which the plaintiffs may be advised to take in case the new septic, tank does prove to be a nuisance.
5. For these reasons, in my judgment, the decree of the learned Subordinate Judge should be upheld and this appeal dismissed. The learned Vakil for the appellants submitted that his clients should not be ordered to pay the costs of these proceedings. Ordinarily, the rule is that costs should follow the event, and I can see he reason why that rule should, not apply to this case. The effect of learned Judge's judgment is that the plaintiffs brought their suit too soon. Having regard to the facts of this case, in my judgment, it was not absolutely necessary for them to have brought this suit. They could have, taken steps by which they could have entered a protest against the erection of the septic tank and they might have stayed their hands until an actual nuisance had been committed.
6. In my judgment this appeal must be dismissed with costs.
7. I agree so fully with the judgment of the learned Subordinate Judge and with the judgment which my Lord has just delivered that there is nothing which I can usefully add.