ANILKUMAR Vs. N RAVI

JUDGEMENT

(1.) Appellant is the defendant in OS No.76 of 2011 before the Court of Munsiff , Adoor. The suit is one for permanent prohibitory injunction restraining the defendant from running a cement block manufacturing unit in plaint 'B' schedule property with hydraulic machines. In the alternative, it was prayed that a permanent prohibitory injunction restraining the defendant from using any machinery in his industrial unit in 'B' schedule, of a capacity exceeding 4.5 HP, and also to direct him to relocate such machineries to a distance of 15(fifteen) metres form plaint 'A' schedule property. The trial court after taking evidence and considering the contentions on both sides, dismissed the suit. Dissatisfied with the judgment and decree, the plaintiff approached the court of the District Judge, Pathanamthitta with AS 83 of 2014. The lower appellate court after considering the rival contentions and evidence on record, decreed the suit in following terms.

(2.) In the result, the appeal is allowed in part and a decree of permanent prohibitory injunction is passed in favour of the plaintiffs/appellants restraining the defendant from running a cement hollow bricks and solid block manufacturing industrial unit in plaint 'B' schedule property with hydraulic machines within a radius of 15(fifteen) meters of the residential building of the plaintiff situated in plaint 'A' schedule property. However, I make it clear that this decree will not be a bar for running a cement hollow bricks and solid block manufacturing industrial unit in plaint 'B' schedule 15 (fifteen) meter away from the residential building of the plaintiffs. Parties are directed to bear with their respective costs.

(3.) Heard the learned counsel for the appellant and the respondents. Learned counsel for the appellant submitted that the decree passed by lower appellate court is legally unsustainable and the lower appellate court failed to take note of the fact that Pollution Control Board, local authority etc., who are necessary parties to the suit were not impleaded and for that reason alone, the suit was incompetent. It was also contended that the appellant started functioning the industry in 1998. The respondents purchased the plaint 'A' schedule property in the year 2001. It is the contention of the learned counsel for the appellant that the plaintiff cannot be heard to say that there is nuisance as he purchased a property adjacent to a running industry. Opposing this contention, the learned counsel for the respondents submitted that till 2009 the industry was functioned manually and no power was used. In 2009 they installed an electric motor and hydraulic machinery which causes unbearable sound, dust and vibration, causing the life of the respondents miserable in the house of plaint 'A' schedule property.