Chopra Weaving Mills and others vs Pyare Lal

Shamsher Bahadur, J.—The question for determination in this appeal is whether the noise caused by the Weaving Factory of the Appellant in Gali Panjewali, Katra Khazana, District Amritsar, constitutes an actionable nuisance ?

Pyare Lal brought a suit against the proprietors of the Chopra Weaving Mills situated in a residential locality at Amritsar, namely, Katra Khazana, to restrain them from operating their power-loom weaving factory as it was a source of nuisance to the Plaintiff and members of his family whose rest and repose were seriously interfered with. A large number of pleas were raised by the Defendants and the substantial question on which the parties joined issue was whether the working of the factory amounted to an actionable nuisance. The learned trial Judge after examination of the evidence adduced on behalf of the parties and inspection of the spot reached the conclusion that the working of the factory was an actionable nuisance. In the view of the trial Court the factory in which the power-looms were worked was divided only by party-wall from the house of the Plaintiff and vibrations and noise resulted in a nuisance which the Plaintiff is justified in getting restrained or at least abated. Considering that the noise was most intolerable at night hours, the trial Court granted an injunction to the effect that the Chopra Weaving Mills would cease working between 9 P. M. and 7 A. M.The proprietors of the Chopra Weaving Mills feeling aggrieved preferred an appeal before the Senior Sub Judge who affirming the finding of the trial Judge maintained the injunction granted by the first Court.

In appeal it has been urged by Mr. Hira Lal Sibal that the Court had no warrant to grant a total prohibition between specified hours. The counsel also submits that the Plaintiff had actually acquiesced to the noise by coming to the house voluntarily and had to take things as he found them. Finally Mr. Sibal submits that the factory works in three shifts of eight hours each and the hours of restriction could not have exceeded this limit which they do by two hours as the time of prohibition is between 9 P. M. and 7 A.M. Mr. Sibal relied on House of Lords decision in Polsue and Alfieri, Limited v. Rushmer 1907 A.C 121, in which in similar situation injunction was sought against a neighbour for carrying on a noisy business and the relief was granted by restraining the Appellants from so working their machinery and so carrying on their printing work as by reason of noise to cause a nuisance to the Respondent or his family. Mr. Sibal contends that an injunction can only be granted to restrain the Appellants on similar terms. In other words it should be left to the Appellants to abate the nuisance in whatever manner they think fit. It is suggested by the counsel that the Appellants might find it possible to prevent the noise from travelling beyond the precincts of the mills by the expensive process of insulation. A decision of the Division Bench of Sind Chief Court has been relied upon by the counsel. In F.O. Thakurdas Menghraj v. Ehawani and Anr. AIR 1937 Sind 8, in which it was held that an injunction should not be granted in such cases in unquali-fii''d terms, by directing the Defendants to stop working the mills altogether during specified hours. In the words of Davis J.C. "We think they should be restrained from working their mills in the hours specified, that is to say, from 10 P.M. to 6 A.M., in such a manner as to cause nuisance or injury to the Plaintiffs-Respondents or their family or other inmate, or occupiers of the Plaintiff''s said house. This injunction is in the usual form which can be found in Seton''s judgments and orders. We think therefore that the order of the lower Court should be varied and the injunction should be modified as indicated above."

Mr. Sachar on behalf of the Respondent on the other hand submits that if the Plaintiff is given freedom to abate the noise in manner he chooses, it would lead to an unending litigation. He places reliance on a Division Bench decision of the Madras High Court in Sadasiva Chetty v. Rangappa Rajoo AIR 1919 Mad. 1185, where the owner of an oil mill close to a dwelling house was absolutely restrained and it was held that the owner of the house was entitled to ask for prohibition of the working of the mill where the nuisance cannot be abated. From the evidence and inspection note of the Court it appears that the nuisance in the present case is of a nature which cannot be moderated by mechanical contrivances. It seems to me that as the mill had been working for many years, no improvements can be expected if the matter is left to the will of the owners of the factory.

As stated in Clerk and Lindsell on Torts ( 11th edition at page 562) "an actionable nuisance can be created by making an unreasonable noise or vibrations and the Court can be asked for their abatement or removal. In such nuisances the principles of Give and take'', ''Live and let live'' are to be valued ..... In determining the question whether nuisance has been caused, a just balance must be struck between the right of the Defendant to use his property for his own lawful enjoyment and the right of the Plaintiff to the undisturbed enjoyment of his property.

I have carefully considered the arguments addressed by the learned Counsel and I have reached the conclusion that the concurrent finding of fact of the Courts below that nuisance has been caused must be affirmed. This finding, however, does not settle the form which the relief should take. I am quite definite that the Plaintiff-Respondent and his family should be left undisturbed in their sleeping hours but I feel inclined to curtail the hours of restriction to eight instead of ten. The restricted hours would be from 10 P.M. to 6 A.M. During this time the Defendants would be restrained from working the factory altogether. I would however like the Defendant-Appellants to be afforded a chance of abating nuisance by mechanical contrivances if possible. The terms of the decree should provide for such contingency also. In this view of the matter, I would modify the decree to the extent that the hours of restriction would be from 10 P. M. to 6 A. M. and not from 9 P.M. to 7 A.M. and further the Defendants would be at liberty to move the Court for variation of the terms of the injunction, should the Court be satisfied that the working of the factory no longer constitutes an actionable nuisance. In the circumstances, the parties are left to bear there own costs of the appeal.