CHHEDILAL Vs. RAJARAM

JUDGEMENT

(1.) PANKAJ Mithal, J. The defendants-appellants have preferred this appeal against the judgment, order and decree dated 15. 1. 1975, passed in Civil Appeal No. 316 of 1963, arising from Original Suit No. 806 of 1970, between Rajaram and another v. Municipal Board, Mauranipur and others and has prayed that the impugned judgment, order and decree of the lower appellate court be set aside and that of the trial court be restored.

(2.) BEFORE adverting to the factual matrix of the present case, it is proper and relevant to point out that previously the present plaintiff-respondent No. 1 Rajaram had filed another Suit No. 1089 of 1966 against the present defendants-appellants for permanent injunction restraining them from operating the oil expeller (kollhu) and the flour mill (chakki) from the ahata in question on the ground that it created public nuisance. The said suit was re-numbered as Original Suit No. 32 of 1969 and after contest was dismissed by the judgment and order dated 30. 7. 1971. It was held that the said ahata, the flour mill and the oil expeller are situate within the busy market area where large number of other similar kind of business units are going on. The noise and vibration if any created by the running of the machines of such units is so insignificant looking to the area in which they are located that it create no actionable nuisance.

(3.) THE Court of first instance on the basis of pleadings framed necessary issues. THE main and relevant issues were as under : 1. Whether the licence granted to the defendant Nos. 2 and 3 (appellants) by the defendant No. 1 Municipal Board is in contravention of the municipal bye-laws 2. Whether the suit is barred by the principle of res judicata and 3. Whether the suit is barred by time.