LAXMI ICE FACTORY Vs. NARAIAN DAS AND ANR.

JUDGEMENT

(1.) THIS revision petition has been failed against the order of the learned Additional District Judge, Nohar (Sri Ganganagar) dated December 12, 1990 by which he has dismissed the appeal and confirmed the order of the learned Munsif, Nohar dated December 8, 1987 directing closure of the defendent -petitioner's Ice Factory and Cotton gining Machines (Charkhies) the facts of the case giving rise to this revision petition may summarised thus.

(2.) THE plaintiff -non -petitioners have filed a suit for injunction in the court of the Munsif, Nohar with the allegations, in short, that the defendant has installed an Ice factory on his adjacent land and as a result thereof, a great nuisance has been created and it has become difficult for them to live in their houses. An application for temporary injection was moved on October 28, 1986. With the consent of the parties, an order was passed on May 12, 1987 to the effect that the defendant -petitioner would not further increase the area of his roof and would also not raise any construction thereon. Another application was moved on November 3, 1987 under Order 39 Rules 1 and 2, and Section 151, C.P.C. with the additional avertments that after said order dated May 12, 1987, the defendent has installed several cotton gining machines (charkhies) near the wall of the plaintiff -non -petitioner No. 2 and as a result therof, dust emit therefrom and it has become difficult for the inmates of their houses to take breath, to sleep and to live comfortably and more cracks have appeared in the walls. The defendant -petitioner filed his reply simply denying the averments. After hearing the parties, the learned trial court directed the defendent petitioner to close his Ice Factory and Cotton Ginning Machines by its order dated December 12, 1987. An appeal was preferred and it was dismissed as said above.

(3.) IT has been contended by the learned Counsel for the defendant -petitioner that previously a suit was filed by the plaintiff -non -petitioner No. 2 Hanuman Singh and it was withdrawn by him. He also contended that no fresh order could be passed on the second application as it has been moved with the same allegations. He further contended that the Ice Factory and the Cotton Gining machines have been installed with the permission of the Municipal Board, Nohar and the plaintiff -non -petitioners are misusing the process of the court with some ulterior motive. He lastly contended that the plaintiff -non -petitioners have failed to prove actual nuisance.