KHAJOOR SINGH Vs. D R SHARMA

JUDGEMENT

(1.) The appellant has filed Second Appeal against the judgment and decree dated 30.12.96 passed in Civil 1st Appeal by the learned Addl. District Judge, Jammu whereby he has upheld the judgment and decree dated 30.12.1995 passed by the Sub Registrar, Munsiff, Jammu. The trial court had passed the decree of permanent prohibitory injunction restraining the appellant from installing Tyre-Retreading factory near the house of the respondent by shifting it from its old site in the locality known as Karan Nagar, Jammu,

(2.) On the pleadings of the parties, the following issues were raised -. (1) Whether the present suit is not maintainable? OPD (2) Whether the suit property is situated in a residential locality and defendant cannot run factory of sole retreading there? OPP (3) Whether the factory of sole retreading causes nuisance. If so, what is its effect? OPP (4) Relief?

(3.) The trial court decided all these issues against the appellant and in favour of the respondent. These findings were up-held by the First Appellate Court. The following substantial questions of law have been formulated in the memo of appeal: (1} Whether the suit is hit by Section 91 of Civil Procedure Code and therefore, liable to be set aside on that score? (2) Whether any case out-side the pleadings can be proved at the triai? (3) Whether any case of nuisance can be made out on the violation or breach of Master plan? (4) Whether in the absence of pleadings or proof of the degree of the nuisance complained of a case of nuisance can be made out? (5) Whether where any activity tantamounts to causing nuisance, it is obligatory to consider the question; whether the business activity should be completely closed down or any nuisance emanating from it. regulated by adopting certain measures before the matter is finally disposed of? (6) Whether the suit was barred by law by reason of the ouster of jurisdiction of the civil court to entertain, hear and dispose of the matter? (7) Whether the findings recorded by the courts below on issues No. 1. 2 & 3 are perverse and other-wise vitiated by fundamentally erroneous approach by both the courts below. It has been contended on behalf of the respondent that no substantial question of law is involved in this appeal and should be dismissed in limine, Heard the arguments.