RAM RATTAN Vs. MUNNA LAL

JUDGEMENT

(1.) THIS order will dispose of both the appeals. (Regular Second Appeal No. 1350 of 1957 and regular Second Appeal No. 135 of 1958 ).

(2.) IN order to appreciate the points involved in the appeals it is necessary to state the facts shortly. On the 20th June 1954 Munsha Singh sold a house to Ram Rattan. Later on there was some agreement between Munsha Singh and Ram Rattan in August, 1954 which was attested by dalip Singh, the son of Munsha Singh, according to which Ram-Rattan was allowed to set up power-looms in they house which had been sold to him. Munsha Singh declared that he would have no objection to the working of the power looms by day or at night. After applying for sanction of the Municipal Committee, Ram Rattan set up two power-looms in the house which he had purchased from Munsha Singh. Four days before the sanction was granted a suit was filed by Munna Lal, a neighbour of Ram Rattan, and Dalip Singh, the son of munsha Singh, for a permanent injunction restraining Ram Rattan-and his brother from working the power-looms which, according to the plantiffs, amounted to a nuisance and from continuing the same and making any further addition to the looms. The Municipal Committee was also impleaded as defendant No. 8. The trial Court after framing the necessary issues came to the conclusion that the working off the two power-looms in dispute caused considerable noise although it was not unbearable but all the same it affected the health, comfort and sleep of the plaintiffs and their family members and if allowed to be aggravated, it might amount to a nuisance. A decree was granted for permanent injunction calling upon defendants Nos. 1 and 2 not to get licence for any further power-looms nor to set up. any other looms besides the two power looms which were already being worked in the premises. A further decree was granted restraining defen-dant No. 3 from giving licence for any more power-looms to defendants Nos. 1 and 2. The prayer with regard to the grant of permanent injunction restraining defendants Nos. 1 and 2 from working the existing two looms was refused. The plaintiffs and defendants Nos. 1 and 2 were dissatisfied, and filed two separate appeals which were disposed of by the learned Senior Subordinate Judge an 9th November, 1957. The learned Judge came to the conclusion that from the evidence of the parties it was evident that the locality where the house was situate was industrial and most of the houses had electric meters and in that area various industries were being run and it had become a sort of manufacturing and industrial area. He agreed with the decision of the lower Court that the working of the two power-looms caused considerable noise although it was not unbearable and if allowed to be augmented it anight amount to a nuisance. The appeal of the defendants was dismissed. While disposing of the appeal of the plaintiffs it was stated as follows :

(3.) MR. Kishan Sarup Thapar who has argued the defendants' appeal has contended that the lower appellate Court was in error in modifying the decree which had been granted by the trial Court. It is pointed out that no reasons have been given for making the modification in the matter of working of the looms and for restraining the defendants from working the same at night between 9 p. m. and 6 a. m. Mr. Thapar has relied on the decision of the trial Court which was based on a correct appreciation, according to him, of the principles applicable to cases of this nature, it is urged that there was ample evidence on the record that the locality in question was an industrial area and that the lower appellate Court has also arrived at the same conclusion. It is further pointed out that there are other houses in the neighbourhood or premises where looms are working day and night, and even in the house of plaintiff No. 1 machinery is installed and is working which involves the running of lathes and electric motors. In the house of Dalip Singh also machinery is installed which works all the time and where cycle parts are manufactured. Apart from this it is in evidence and also in the inspection note of the trial Court that Ram sarup, another brother of the defendants, is working 23 power-looms in the neighbourhood which also create noise and the plaintiffs have been living and have chosen to live in a locality where noise was already being produced of such a nature that would ordinarily affect comfort of persons residing in that locality. In such circumstances, according to Mr. Thapar, what has to be seen is whether the two looms which were installed by the defendants have increased the noise to such an extent that it can be regarded to amount to a nuisance. He relies on the test which has been adopted by the trial Court, namely whether the noise had become unbearable so as to affect the health, comfort and sleep of the plaintiffs and their family members. The true test in such cases has been laid down by Mr. Justice Warrington in Rushmer v. Polsue and Alfieri Ltd. , (1906) 1 Ch. 234. In that case it has been held that in a locality devoted to noisy trades such as the printing and allied trades, if a printing-house or factory subjects the occupier of an adjoining residence to such as increase of noise as to interfere substantially with the ordinary comfort of human existence according to the standard of comfort prevailing in the locality, that is sufficient to constitute an actionable wrong entitling that occupier to an injunction. The judgment of Warrington J. contained the following statement of the legal principles which, in his opinion, were applicable to such cases --