SHAIKH ELAHI NUKSH Vs. MAHASAHAY TARAK NATH GHOSH

JUDGEMENT

(1.) The present suit was instituted in respect of a brick kiln which is not very far from a garden belonging to the plaintiff-respondent. In this suit the plaintiff asked for a perpetual injunction restraining the appellant from working the-back kiln on the allegation that the smoke and scot emitted by the chimney of the kiln was causing damage to the trees in his garden as well as their fruits. He also claimed compensation for the damages alleged to have been caused to the fruits and trees of his garden.

(2.) The Courts below awarded a nominal sum of Rs. 30 as damages and issued a perpetual injunction against the appellant restraining him from "so working the brick kiln as not to cause any nuisance to the plaintiff." The learned Munsif preferred to issue the injunction in this form as an injunction had been issued in similar terms in Chiragdin V/s. Karim Bhaksh 64 Ind. Cas. 169. Now, there is no doubt that in cases of nuisance this is the usual form in which injunctions are issued in England and the same practice has been followed in this country in certain cases. It does not however follow that where an injunction can be issued in clearer and more definite terms, there is any rule of law to prevent the Court from issuing it in those terms. In the case relied upon by the learned Munsif, an injunction was originally issued restraining the defendants from working their factory between the hours of 10 p. M. and 6 A. M. as well as directing the defendants to take certain order with their machinery. It was pointed out by the High Court that an injunction in that form would cause unwarranted and unnecessary hardship to the defendant and it was suggested that it was sufficient for the purpose of that particular case to issue an injunction so as to restrain the defendants from carrying on the work in the factory in such a manner as not to occasion a nuisance to the plaintiff. In fact it, was on behalf the defendant that the High Court was asked to issue an injunction in this form and the High Court acceded to the prayer. It appears to me that in this particular case the injunction could be issued in somewhat clearer terms by fixing the minimum height of the chimney.

(3.) My attention has been drawn on behalf of the appellant to a statement made by D.W. No. 6 that if the chimney is raised 10 or 15 feet more, the trees belonging to the plaintiff will not be affected. The respondent, however, challenges the accuracy of this statement and offers to show that this statement is not quite correct; but at the same time it is not disputed on his behalf that his garden would not suffer any damage if the height of the chimney is sufficiently raised. In these circumstances I would remand the case to the Court below for a clear finding on the following question: whether damage to the garden belonging to the respondent can be avoided by raising the height of the chimney of the kiln belonging to the appellant and if so to what height this chimney should be raised; in other words what should be the total height of the chimney from the ground level in that case. The finding should be arrived at on a consideration of the evidence already recorded and such other evidence as the parties may like to adduce and should be submitted to this Court as soon as possible. It will be open to the lower Appellate Court to remit the case to the Court of the learned Munsif for the purpose of recording evidence and his findings thereupon.