RADHEY SHIAM Vs. GUR PRASAD SERMA

JUDGEMENT

(1.) GUR Prasad Saxena and another filed suit No. 595 of 1964 against Radhey Shyam and 5 others for permanent injunction restraining the defendant No. 1 from installing and running flour mill in the premises occupied by the defendant No. 1 on 7-Ashok Marg, Lucknow. The plaintiffs alleged that a portion of the first floor of the said premises was occupied by plaintiff No. 1 as a tenant. Just below that portion lay the shop of the defendant No. 1 on the ground floor. The plaintiff No. 2 occupied a shop adjoining the shop of defendant No. 1 on the ground floor of the premises. The defendant No. 1 operated upon an oil expeller machine in his shop for about six months and thereafter he planned to instal a flour mill therein. It was alleged that prior thereto the defendant No. 1 carried a Kirana business in the shop. The installation of flour mill was opposed by the owners of the said building as also by the plaintiff No. 1. The plaintiffs alleged that they would lose their peace on account of rattling noise of the flour mill and their health would be adversely affected if the flour mill was allowed to be run. The defendant No. 1 did not agree to give up the idea of installing the flour mill hence the plaintiffs filed a suit on 23rd December, 1964. The suit was contested by the defendant No. 1 pleading inter alia that no nuisance had been caused or would be caused because of any of his alleged acts and that the plaintiffs had no right to sue. The trial court, having found that the running of the flour mill was not an actionable nuisance and that the oil plant of the defendant No. 1 was being run without causing any nuisance to the plaintiff, dismissed the suit. Against that decision the plaintiffs filed Civil Appeal No. 59 of 1968.

(2.) GUR Prasad Saxena filed another Suit No. 34 of 1966 on 10th January, 1966 against Radhey Shyam and 5 others for permanent injunction restraining the defendant No. 1 from running or continuing to run the oil expeller plant in his shop. This suit was also based on the ground of private nuisance. It was resisted by the defendant No. 1. The trial court having found that the running of the oil expeller plant by the defendant No. 1 was not a source of nuisance to the plaintiffs and that it would not weaken the building, dismissed the suit. The plaintiff preferred Civil Appeal No. 58 of 1968 against that decision. Both these appeals were heard together and decided by a common judgment by the learned Civil Judge, Mohanlalganj, Lucknow. The appeals were allowed and injunction was issued restraining the defendant No. 1, his servants, workmen and agents from making and causing to be made noise and vibrations from the impugned machines lodged in his premises on the ground floor of the building in question, so as to occasion nuisance, disturbance and annoyance to the plaintiff appellants, as the occupier of the residential portion of the first floor of the same building.

(3.) APPLYING principle No. (4) set forth above, it is manifest that a person can claim injunction to stop nuisance if in a noisy locality there is substantial addition to the noise by introducing of some machine, instrument or performance at defendant' s premises which materially affects the physical comforts of the occupants of the plaintiff' s house. The appellate court below has found as a fact that the running of the impugned machines would seriously interfere with the physical comfort of the plaintiff and the members of his family according to the ordinary notions prevalent among reasonable men and women. This finding being based on evidence is not assailable in second appeal. The plaintiffs were therefore, rightly held to be entitled to the injunction claimed by them. There is no merit in both the appeals.