Mohar Singh Yadav vs Khushi Ram Yadav and Others

Mehinder Singh Sullar, J.—Having kept the law laid down by Hon''ble Apex Court in case Kashmir Singh Vs. Harnam Singh and Another, into focus, now the short and significant question, though important that arises for determination is, as to whether any substantial question of law is involved in the instant regular second appeal, so as to invoke the jurisdiction vested in this Court u/s 100 Code of Civil.Procedure. or not ?

The contour of the facts, culminating in the commencement, relevant for the disposal of the present appeal and emanating from the record, is that Khushi Ram Yadav son of Chander Singh Respondent No. 1-Plaintiff (for brevity "the Plaintiff"), filed the suit for a decree of permanent/mandatory injunction, restraining Mohar Singh Yadav son of Mistri Kishan Dev Appellant-Defendant No. 1 and his brothers Daulat Ram Yadav and Ashok Kumar Yadav proforma Respondent Nos. 2 and 3-Defendants (for short "the Defendants"), to stop the operation of machines, denominated by letters M-1 & M-2, depicted in the site plan installed in their factory.

The case set up by the Plaintiff, in brief in so far as relevant, was that he is owner and in possession of his residential house, described by letters ABCD shown in the site plan, within the residential/municipal area. The Defendants are owners of the adjoining house. They have installed two machines (dandas/leth) for manufacturing utensils with 7.5 horse power electric motor. The factory portion is situated at a distance of 10-12 feet from the house of the Plaintiff. According to the Plaintiff that the installation and operation of machines are emitting loud and irritating voice with strong vibration causing cracks in the nearby walls.

Levelling a variety of allegations and narrating the sequence of events, in all, the Plaintiff claimed that the Defendants have no right to carry out the commercial use and to make utensils in the residential property, causing, noise pollution, mental agony, discomfort, nuisance to him & other inhabitants of the village and cracks in the nearby houses. He asked the Defendants to stop the running of machines in the residential premises, but in vain, which necessitated him to file the suit. On the basis of aforesaid allegations, the Plaintiff filed the suit for a decree of permanent/mandatory injunction against the Defendants, in the manner indicated hereinabove.

The Defendants contested the suit and filed their written statement, in which, the installation and operation of machines for manufacturing the utensils in residential area are admitted. However, it was denied that the machines are creating noise pollution, mental agony, discomfort, nuisance to the Plaintiff, other inhabitants of the village and caused cracks in the nearby houses. It will not be out of place to mention here that the Defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the Plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case.

The parties to the lis, produced on record the oral as well as documentary evidence, in order to prove their respective pleaded cases.

The trial Court, after taking into consideration the oral as well as documentary evidence on record, decreed the suit of the Plaintiff, by means of impugned judgment and decree dated 12.10.2009.

Aggrieved by the decision of the trial Court, the Defendants filed the appeal, which was dismissed with costs as well, by the Ist Appellate Court, through the medium of impugned judgment and decree dated 11.11.2010.

The Appellant-Defendant No. 1 still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present regular second appeal.

After hearing the learned Counsel for the Appellant-Defendant No. 1, going through the record with his valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context.

Ex-facie, the arguments of learned Counsel that the trial Court has wrongly relied on the report of Local Commissioner (PW3), who was not an expert witness and since the manufacture of utensils in the factory of the Defendants did not cause any noise pollution or vibrations, so, the Courts below committed a mistake in decreeing the suit of Plaintiff, lack merit.

Possibly, no one can dispute with regard to the crux of the observations of Hon''ble Supreme Court in case Sheikh Ikram Sheikh Israil and Ors. v. State of Maharashtra and Ors. 2007 (2) L.J.R. 149, wherein on the peculiar facts and in the special circumstances of that case, the Appellants were permitted to give a concrete proposal as to how they shall ensure sticking of the norms within two months and were permitted to move the authorities in that respect, but the same would not come to the rescue of the Defendants in the present controversy.

As is evident from the record that the installation of machines and manufacture of utensils by the Defendants are admitted. The Plaintiff claimed that production of utensils in their factory is causing noise pollution, mental agony, discomfort, nuisance to him & other inhabitants of the village and caused cracks in the nearby houses. Besides other evidence, the Plaintiff examined PW3 B.R. Gupta, Civil Engineer and Building Expert (Local Commissioner), who inspected the site in the presence of the parties and corroborated his case on all vital counts, vide his report (Ex.PW3/D). On the contrary, the mere denial of Defendants that the machines are not emitting any noise pollution is not sufficient in this regard. Therefore, the contrary contentions of learned Counsel for the Appellant-Defendant No. 1 "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.

Moreover, the trial Court, after taking into consideration the entire material on record, recorded a finding of fact that the machinery of Defendants in the residential premises is causing nuisance and noise pollution. The noise itself is actionable wrong in law and the Defendants have no right to run their machinery in the residential property.

Not only that, the decision of the trial Court was upheld by the Ist Appellate Court, by way of impugned judgment dated 11.11.2010, which, in substance, is (paras 14 and 15) as under:

Similarly, in Forum, Prevention of Envn. and Sound Pollution v. Union of India and Anr. 2005 (3) RCR (Civil) 449, the word nuisance was defined by the Hon''ble Apex Court as under:

Any noise which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a nuisance.

In Ramesh and Ors. v. Pawan Kumar (1998) PLR 535, our own Hon''ble High Court observed that the noise itself is actionable wrong in law and noise causing nuisance could no way be taken outside the ambit or circumstances of actionable wrongs. It is an implied obligation upon the Defendant to prevent noise pollution even if he has permission from the competent authority to run a factory in the area in question where the Plaintiffs and Ors. have their residential houses. In Ram Lal Vs. Mustafabad Oil and Cotton Ginning Factory and Others, , it was held that once a noise is considered to be a nuisance of the requisite degree, it is no defence to contend, that it was in consequences of a lawful business or arose from lawful amusements or from places of religious worship.

It has already been observed that the noise caused by the machines being run by the Defendants in the factory for manufacturing aluminium utensils is an obectionable noise. It is not only the Plaintiff, but the other residents of the locality also who are feeling discomfort due to noise pollution. The Plaintiff may be running a godown in two rooms of his house, but admittedly it is his residential house where he residing with his family and it is located in a residential locality. In other words, the buildings surrounding the factory of the Defendants and house of Plaintiff are residential. The Defendants have failed to substantiate the file with any document giving them permission to run a factory in the premises situated in a residential locality. As discussed above, even if he had the permission still he had no right to create noise pollution which can prove injurious to the health of inhabitants of the locality as well as to the safety of the adjoining buildings. Accordingly, findings of learned trial court on issue No. 1 are affirmed.

The learned Counsel for the Appellant-Defendant No. 1 did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgments and decrees are illegal and would invite any interference in this relevant direction.

Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, they have recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred u/s 100 Code of Civil Procedure, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned Counsel for the Appellant-Defendant No. 1, so as to take a contrary view, than that of well reasoned decision already arrived at in this regard.

No other meaningful argument has been raised by the learned Counsel for the Appellant-Defendant No. 1 to assail the findings in the impugned judgments and decrees. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant behalf, have already been duly considered and dealt with by the Courts below.

Sequelly, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees, in view of the law laid down by Hon''ble Apex Court in Kashmir Singh''s case (supra) in the obtaining circumstances of the present case.

No other legal point, worth consideration, has either been urged or pressed by the learned Counsel for the Appellant-Defendant No. 1

In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such.