Kewal Ram vs Krishan Kumar

Rajive Bhalla, J.—By way of this judgment, we shall dispose of R.S.A. No. 1779 of 1988, filed by the defendants and R.S.A. No. 2033 of 1988, filed by the plaintiffs. Krishan Kumar and others, plaintiffs, filed a suit for permanent injunction to restrain Kewal Ram and others from running an ''atta chakki'', a rice shelter plant, a grinder, a grain filter or any such machinery, that causes noise, vibration and nuisance. Kewal Ram and others, defendants, filed a joint written statement controverting averments in the plaint and asserting that the suit is not maintainable as in an earlier suit, Assa Ram, father of the plaintiffs, had compromised the matter with the defendants agreeing to ensure that no damage is caused to the roof. The defendants also pleaded that they had obtained requisite permissions and, therefore, cannot be prevented from running the "atta chakki". After considering the pleadings, the trial court framed the following issues:-

1 Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP

2 Whether the act of the defendants for running their machinery in the property in question amounts to nuisance, as alleged? OPP

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the suit of the plaintiffs is barred by the principles of res judicata? OPD

Whether the plaintiffs are estopped from filing the present suit by their act and conduct and acquiesce ? OPD

Relief.

Upon due consideration of the pleadings, the evidence, and arguments addressed, the trial court dismissed the suit by holding that the "atta chakki" does not cause any nuisance as it is located in a commercial area. Aggrieved by this judgment, the plaintiffs filed an appeal. Vide judgment dated 24.5.1986, the Additional District Judge, Patiala, partly allowed the appeal and ordered that the defendants shall not operate the "atta chakki" during the night but shall be at liberty to operate the "atta chakki" during day time.

The defendants have filed R.S.A. No. 1779 of 1988 praying that the restraint on operation of the "atta chakki" during night time, should be set aside, whereas the plaintiffs have filed R.S.A. No. 2033 of 1988, praying that the judgment and decree passed by the first appellate court may be modified by directing that the appellants shall not be entitled to operate the "atta chakki" even during the day time.

Counsel for the appellants, in R.S.A. No. 1779 of 1988, submits that as the "atta chakki" is located in a commercial area, the mere fact that there may be a few houses adjoining or abutting the "atta chakki", is no ground to restrain the appellants, particularly when the appellants have obtained all requisite permissions. It is also contended that as the trial court had dismissed the suit, the first appellate court had no jurisdiction to reverse the order by merely holding that the area is not purely commercial but also includes residential and commercial establishments.

Counsel for the respondents is not present and no one has come forward to press their appeal, i.e., R.S.A. No. 2033 of 1988.

As far as Regular Second Appeal No. 1779 of 1988 filed by the defendants is concerned, suffice it to state, that the impugned judgment and decree does not disclose to any error of jurisdiction or of law, or indicate misreading of evidence, a perverse or arbitrary finding, much less, an error of law, that would raise a substantial question of law, inviting interference by this Court. The first appellate court has recorded a clear and cogent finding of fact that the "atta chakki" is located in a mixed locality having residences and commercial establishments and thereafter, in its endeavour to balance equities, has merely directed the appellants not to run their "atta chakki" at night. I find no reason to interfere with these findings or the direction issued, particularly when no substantial question of law arises for adjudication and none has been framed. No one has come forward to press R.S.A. No. 2033 of 1988 and, even otherwise, as no substantial question of law has been framed or arises, the appeal does not call for interference. In this view of the matter, both appeals, i.e. R.S.A. Nos. 1779 and 2033 of 1988 are dismissed, with no orders as to costs.