SUNIL KUMAR VERMA Vs. RAGHUBIR SINGH

JUDGEMENT

(1.) This First Appeal from Order arises against an order dated 8-5-1990 passed on the application 602 for temporary injunction to restrain the defendant-appellants from running their Kolhoo in the property in dispute with the aid of 15 Horse power motor. The plaintiffs had alleged that the said working of the Oil Expeller used to create vibrations which were going to weaken their walls in the house adjacent to the building in which the expeller had been fitted. He also alleged that the Machines were creating such a great noise that the plaintiffs and their family members could not live comfortably in the accommodation in suit, nor would they be able to sleep on account of the said noise and their health would be adversely affected. It was also claimed that on account of the said noise even the children would not be able to concentrate on, their studies. At the end the allegation was that the running of the Machines was a constant nuisance and as such the respondents deserved to be restrained from operating the said machine. It was also alleged that earlier one Asfaq Ullah had set up a Saw machine in the neighbourhood of the plaintiffs' house, on account of which wife of the applicant Sheelawati had fallen ill in the year 1970 and had become a patient of T.B. On suit No. 126 of 1971 (Raghubir Singh v. Asfaq Ullah) being filed, the said suit was decreed with costs stop the said Saw machine and the appeal preferred against the said order was dismissed and the injunction order against the defendant was in force even at the time when the suit was filed. It was consequently prayed that the defendant-appellant be also restrained by means of an interim injunction to operate the said Machine during the pendency of the suit in the court below.

(2.) The application was contested by the defendant-appellants. It was alleged that the plaintiff and his family members do not reside in the accommodation in dispute and they resided in a building situated in Morganj by the side of the Mansharam building. It was claimed that the machine had been set in the residential house of the defendant where the defendants' two sons used to reside. It was alleged that the expeller in this building had been fixed by putting it close to the wall of the defendants itself. It was denied that the running of the Expeller was going to affect the walls of the house inasmuch as the foundation for the Expeller was 9 deep and the Expeller had been functioning for more than a week without any nuisnance to the plaintiffs. It was also alleged that there was neither any skylight nor any window in the wall with the result that no nuisance could be caused to the plaintiffs on account of the running of the Expeller. It is also claimed that the Expeller had been fixed in a house which fell in a commercial cum residential zone, where other Saw Machines etc. were already functioning. It was also asserted by the defendants that they had obtained loan from the U.P. Financial Corporation in a tune of about Rs. 1 lac and had started the business after obtaining necessary licence etc. and also after obtaining the no objection certificate from the authorities concerned. It was also contended that it was wrong to compare the alleged nuisance with the nuisance which might have been created on account of the Saw machines fixed by Asfaq Ullah. It was further contended that in view of the fact that the defendants were running the expeller after obtaining loan and necessary licence etc., hence no order of interim injunction should be granted to the plaintiffs.

(3.) After hearing the respective parties, the court below granted the order of interim injunction against which the appellants have come up in appeal to this court.