Khajoor Singh vs O.R.Sharma

G.D.Sharma,J.

The appellant has filed Second Appeal against the judgment and decree dated 30121996 passed in Civil 1st Appeal by the learned Addl

District Judge, Jammu whereby he was upheld the judgment and decree dated 30121995 passed by the subRegistrar, 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.

On the pleadings of the parties, the following issues were raised:

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 rethreading there? OPP

Whether the factory of sole rethreading causes nuisance. If so, what is its effect? OPP

Relief.

The trial court decided all these issues against the appellant and in favour of the respondent. These findings were upheld by the First Appellate

Court. The following substantial questions of law have been formulated in the memo of appeal:

Whether the suit is hit by section 91 of Civil Procedure Code and

Therefore liable to be set aside on that score?

Whether any case outside the pleadings can be proved at the trial?

Whether any case of nuisance can be made out on the violation or breach of Master Plan?

Whether in the absence of pleadings or proof of the degree of the nuisance complained of a case of nuisance can be made out?

Whether where any activity tantamount 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?

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?

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.

Regarding the first proposed substantial question of law, it has been argued on behalf of the appellant that in para 6 of the plaint there were

allegations regarding the creation of private as well as public nuisance, but no full ingredients of the private nuisance as to how he and his family

members were affected were given, although in the amended plaint in para No.6 certain averments were made by adding,

more particularly by the plaintiff and his family members, who are nearest and worst affected residents."" That this was unauthorized addition in the

plaint and could not be looked into in view of the findings dated 25.4.1988 recorded by the trial court. As no special loss or damage is pleaded or

proved so this was hot a case of private nuisance but purely of public nuisance and May proceedings to be initiated were to be regulated firstly by

the procedure laid down in section 91 of the Code of Civil Procedure. Since this was not done so this suit is not maintainable as being volatile of

the mandates of law contained in section 91 CPC and this is a serious question to be gone into.

The counsel appearing for the respondent has contended that even by ignoring the above stated addition of the ingredients of private nuisance as

contained in the amended plaint in Para No.6, there were allegations which indicated that it was a case of private nuisance. He has referred to that

portion where it is alleged that, ""the defendant has planned to start the same trade in the entire building and in that event, the plaintiff who is residing

in the nearest house shall be the worst victim of health hazard due to the facts enumerated above."" He has also referred para 12 where it is alleged,

that in case the defendant succeeds in setting up the tyre sole rethreading factory in that building the plaintiff and his family members and others

shall suffer irreparable loss of health comfort and convenience not to be compensated by any other means."" Undoubtedly, if it was a case of public

nuisance only then section 91 CPC was attracted. From the perusal of the plaint as a whole, it transpires that the respondent had made averments

of his sufferings which would have been caused by starting the trade in question. The test of a nuisance causing personal discomfort is the actual

local standard of comfort and not an ideal or absolute standard. No use of one's property is reasonable if it causes substantial discomfort to other

persons. In the case of Dhannalal & anr. Vs. ThakurChittarsingh Mahtapsingh (AIR 1959 M.P. 240) it was held, that ""if the defendant is found to

be carrying on his business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards them, and may be restrained by

injunction, although he may be conducting his business in a proper manner and according to rules framed in this behalf either by the Municipality or

by the Government.

The burden of proof of issue No. 1 that the suit was not maintaible was on the appellant. The parties had led the evidence. The trial court had

found that respondent (plaintiff) had established that he resides at a distance of 10' from the building of the appellant and shall be the worst victim

of health hazard in case the appellant operates the Tyre retreading business in the building. On evidence a case of private nuisance was established

and this factual aspect of the case was confirmed in appeal by the 1st Appellate Court. In this second Appeal such a question cannot be raised as

a substantial question of law which on facts has been established and decided. On this view, it is found that this is not a substantial question of law

arising in this case.

The counsel for the appellant has contended that the trial court had allowed the respondent to prove its case beyond the pleadings. This

contention has been countered by the counsel for the opposite side by contending that in the plaint it was averred that Karan Nagar is a residential

locality inhabitated by highstandard persons. Respondent in his statement had lent assurance to this view

1998 Khajoor Singh Vs. Dr. D.R. Sharma page no. 401 which was corroborated by the then Town Planner Vinod Malhotra, who stated that

commercial acitivites were not permitted in that area. This was a question of fact and both the courts below have concurrently arrived at a

conclusion which cannot again be made a subject matter of controversy by stating that a substantial question of law is involved. On this view of the

matter, it is found that this is not a substantial question of law to be raised in this case.

The learned counsel for the appellant has contended that it requires to be seen whether a case of nuisance can be made out on the violation of the

breach of Master Plan. The Chief Town Planner Mr. Vinod Malhotra in his statement has stated that as per Master Plan the site in question has

been earmarked for residential purposes only. In cross examination, he has admitted that he had visited the spot. This is also a question of fact

deter mined by the trial court and the appellate court concurrently and it cannot be reopened. In the result, it is held that this is also not a substantial

question of law which requires any adjudication.

The 4th question which has been raised is whether in the absence of pleadings as well as the proof of the degree of nuisance complained of a case

of nuisance can be made out. The counsel for the otherside has con tended that it was alleged and proved that the alleged activity could cause

allergy to skin, eyes and lungs. The respondent who himself is a Doctor had categorically stated that the trade in question emits offensive rubber

smell, high carbon smoke and foul smelling gases annchod with carbon dioxide and Carbon monoxide. That when the tyres are retreated, the noise

will be generated and there will be vibration from the machines. Air pollution will be caused by the small particles of dust and

smoke which will effect the health and following diseases can be caused by the same:

a. Inspective and alergic dteeases.

b. ENT and Lung disease;

c. Deafness

d. Bronchitis.

It can affect the eyes and skin Lack of appetite due to the foul smell. More vehicles are to be parked on spot and inflammable material will also be

used for the said business. House of the respondent is situated at a distance of 10' and he will be the worst sufferer because of noise and pollution,

prone to catching diseases alongwith his family members. There is also the testimony of Dr. J.K. Sharma, retired Health Officer, Municipality

Jammu who has also stated that in carrying out this business fumes can cause irritation to eyes, allergy in the nose, irritation in the throat, even a

cancer of lungs, in case one is exposed to fumes which are emitted over a longer period of time. He had also stated that in case the sole retreading

business is con ducted in the building in question it could affect the respondent and his family members as well as the other neighbours. His

evidence could not be challenged except eliciting an admission that he is distantly related to respondent.

After hearing the arguments and perusing the record, it can be said that the trial court as well as the Appellate Court has given the findings from the

pleadings and on the evidence there are concurrent findings and these findings are of fact and cannot be said as involving substantial question of

law.

Question No.5 has a relation with question No.4 and the appellant had not led any evidence to prove that by adopting any measures the nuisance

could be controlled. This cannot be said as a substantial question of law to be raised therein.

Question No.6 is regarding the ouster of jurisdiction of the Civil Court. The plea that AIR Prevention and Control Pollution Act ousts the

jurisdiction of Civil Courts was not taken before the trial court but for the first time it was raised before the 1st Appellate Court which has

effectively decided it. The appellant had failed to make out a case that the site of proposed trade had been brought within the limits of that area

which section 19 of the said Act declares that it is ""Air Polution Control Area"". The case implicit before the trial court was of a private nuisance

and permanent prohibitory injunction, which after due trial was decided and before the 1st Appellate Court the judgment and the decree were

upheld. Nowhere, rt was a case falling under the ambit of Section 46 of the Air Prevention and Control Pollution Act where the question of State

Pollution Board could be considered and subsequently ouster of the jurisdiction of the civil court could arise. This is an afterthought and an exercise

in futility. No substantial question of law arises out of this argument.

Question No.7, both the courts have concurrently given the findings on the basis of evidence and the law applicable and it cannot be said that

the findings on issuances No. 1,2&3are perverse.

Viewing the case from all its perspective it is held that the courts below have concurrently held this case of a nature of private nuisance also

where the respondent could suffer special damage although other people in general or some other neighbors in particular were also prone to suffer

from the nuisance. All the controversies which had arisen from the pleadings have been dealt with the properly decided. At this stage no substantial

question of law arises for determination. In this view, the appeal is found not fit for admission and is accordingly dismissed in limline.