DASAPPA Vs. RAMACHANDRA

JUDGEMENT

(1.) This revision petition arises out of an order granting temporary iniunction against the defendant restraining him from operating his flour and oil mill by the side of the eastern wall of the plaintiff's house.

(2.) The plaintiff and the defendant are owners of adiacen houses. The plaintiff is having a two storied buildine. The defendant has installed a flour and oil mill in his own premises. The plaintiff objected before the local Municipalitv against the grant of licence to the defendant. Unable to get an effective relief through the Municipality, he approached the Court with a suit for injunction complaining that his eastern wall is in a great danger and in all probability, might fall down due to the vibrations caused from the operation of the mill. He also said that the operation of the mill would cause nuisance to his peaceful life. The defendant resisted the suit by denying the above allegations and further stating that he has a right to carry on his business in his own premises. He also said that the plaintiff is having three grinders in his own premises, the working of which has not been complained of by him, whereas the plaintiff has been unnecessarily interfering in his affairs.

(3.) The plaintiff obtained an ex-partc injunction restraining the defendant from installing the oil mill. In the proceedings for dissolving that injunction, the Court appointed a Commissioner who was an Electrical Engineer to report as to whether the running of the oil mill will in any way cause damage to the foundation of the building or to the eastern wall thereon. The said Commissioner, after local inspection, reported in the negative. On considering the report and other material revealed by the affidavits, the learned Munsiff was satisfied that it was not a case for continuing the temporary injunction. Accordingly, he vacated the ex-parte order. While, making the order, he observed that the plaintiff's contention that running of the mill would cause nuisance to him cannot be a ground at that stage of the case as he himself is having a shop where 3 grinders are being operated. He also observed that the balance of convenience is in favour of the defendant, since he has already installed the flour mill by spending a large amount, and if he is prevented from operating the mill, it would cause him great inconvenience. The plaintiff appealed against the said order before the Court of the Civil Judge. During the pendency of the appeal, the parties requested the Presiding Judge to have a local inspection of the suit premises. The learned Judge acceded to the request and visited the place along with the advocates and the parties when the mill was working. He could not notice any vibration in the common wall, but he felt slight vibration in the windows and wall as he proceeded to the upstairs of the plaintiff's building. The learned Judge, however, felt his inability to express his view, whether the said vibration was in anv way dangerous to the plairttiff's wall or the building. That perhaps set the parties to move the Court for the appointment of another Commissioner. Accordingly, by consent of parties, a local Civil Engineer was appointed as a Commissioner to ascertain the following four points :