- (1.)THIS is a defendant's revision and is directed against an appellate order of district Judge, Alwar dated 8-5-67 and arises out of an application for grant of a temporary injunction pendente lite by the plaintiff-respondent.
(2.)PLAINTIFF Smt. Mahadevi and defendant Girdharilal are neighbours and have their houses adjacent to each other in the city of Alwar. In his house the defendant had first established a flour mill in March, 1965 and then some time in the last week of feburary, 1967 he also established an oil mill consisting of a pair of 'kolhus. ' This led the plaintiff to bring a suit for a permanent injunction against the defendant for restraining him from working his flour mill as well as the oil mill. It was averred by the plaintiff that the running of the two mills was a cause of nuisance to her. According to her, as a result of the working of the two mills her house shakes and as a result of the shaking a crack has also been caused in that house. It was also alleged that the plaintiff was a heart patient and as a result of the thunderous noise created by the running of the two mills her ailment was aggravated. Also on account of the running of the flour mill and oil mill it was difficult to have good sleep at night, nor could the children living in the house be able to study Lastly, it was added that the crushing of 'sarsen' emitted bad smell and thus plaintiff's living in the house had become very discomfortable. Plaintiff also made an application for grant of a temporary injunction under Order 39 Rule 2 of the Code of Civil Procedure. On this application the learned Munsif at the out set granted an ad interim injunction restraining the defendant from working the two mills beyond 8 p. m. When this matter came up for hearing before the learned Munsif, after the defendant was served with the notice, the learned Munsif confirmed the ad interim injunction in the terms in which it was granted. The learned Munsif in doing so observed as follows:--
"the main point to be decided in this case is whether the running of mills amounts to nuisance or not. Just because it makes noise it cannot be termed as nuisance. It remains to be seen from evidence, whether it is a nuisance or not. Prima facie defendant is working the machines with permission as provided in the law. If he is absolutely restrained from doing so then his machines could remain idle and he will suffer considerable loss and inconvenience. In my opinion plaintiff has not made out a case for grant of injunction and complete stoppage of machines. I see no reason to change the interim order passed earlier. The plaintiff's application is dismissed. "
This order was passed on 29-3-67. Against this order of the Munsif both the parties lodged appeals before the learned District Judge; the plaintiff feeling aggrieved as temporary injunction was not granted in the terms it was desired by her, and the defendant felt aggrieved on account of the grant of temporary injunction. The learned District Judge, however, allowed the plaintiff's appeal and he set aside the order of the learned Munsif declining to issue the temporary injunction in the terms it was desired by the plaintiff and restrained the defendant from working the oil mill altogether. He, however, did not interfere with the order of temporary injunction so far as the running of the flour mill upto 8 p. m. , as ordered by the Munsif, was concerned. Aggrieved by this order the defendant has made this revision application.
(3.)IT was contended on behalf of the petitioner that the order of the learned district Judge was not only erroneous but it showed that the learned District Judge has completely disregarded the principles that should guide an appellate court in dealing with the grant of temporary injunction and in interfering with the order of a trial court in such matters. It is pointed out that the learned District Judge has really given no reasons for upsetting the order of the learned Munsif and, at any rate, he has not met the reasons adduced by the learned Munsif in support of the order. Apart from this, it is submitted that no expert has been examined by the plaintiff for showing that any cracks have been caused in the house of the plaintiff on account of the running of the oil mill or the flour mill. It is then argued that both the flour mill as well as the oil mill were erected after obtaining permission of the Municipal Board and the plaintiff had in the circumstances not made out any prima facie case. It is urged that the question whether there was any nuisance so as to amount to an actionable wrong has to be judged in the light of what obtains normally in the present day society in an urban area. It is submitted that flour mill or an oil mill are thereto serve the necessities of people living in the area and people have to bear a little discomfort also and for judging the reasonableness or the degree of discomfort the matter has to be approached from the point of view of an average individual and the mere fact that a particular individual may be suffering from some ailment will be no ground to prevent the carrying on of a normal avocation. In particular, attention was invited to the fact that the learned munsif has taken into consideration the hardship that might result to the defendant with the complete stoppage of the running of the two mills as thereby he would be put to much loss and the learned District Judge has not paid due regard to the inconvenience or hardship of the defendant. Learned counsel invited my attention to Behari Lal v. James Maclean, AIR 1924 All 392, George Phillip v. Subbanmmal, AIR 1957 Trav-Co 281, Controller, Amanat Hai v. Wahid Ali, AIR 1956 Bhopal 48, Mathew Phillips v. P. O. Koshy, AIR 1966 Mys 74, Musa v. Badri prasad, ILR (1953) 3 Raj 257 and Chand Sultana v. Khurshid Begum. AIR 1963 andh Pra 365.
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