B.L. Yadav, J. - (1.) THIS is a defendants second appeal in a suit for mandatory injunction directing the defendants/appellants to stop the furnace and generator in the shop and premises in dispute. Plaintiff/respondents filed the suit with the allegations that they were owners of house No. 102 situate in Chauk Bazar, Meerut Cant and defendant appellant was a tenant in the shop situate in eastern side of the house at the rent of Rs. 23.00 per month. The defendant was doing the business in the shop and started the work of casting of instruments of business and installed a big furnace in which steam coal was being used resulting into large quantity of smoke which spread in the residential portion of the house and made the life hazardous.
(2.) DEFENDANT /appellant denied the plaint allegations. Trial court dismissed the suit and lower appellate court decreed the suit by the impugned order, against that order present second appeal has been filed. Learned counsel for the appellant urged that the plaintiffs are not entitled to the relief of injunction in view of provisions of Section 41(h) of Specific Relief Act 1963 (for short the Act) as they could get equally efficacious relief by usual mode of proceedings, in as much as a suit for ejectment of the defendant appellant could have been filed. It was further urged that no nuisance as alleged was proved nor the act complained of was covered under the definition of "nuisance", hence suit has illegally been decreed.
(3.) MR . Bhupeshwar Dayal, learned counsel appearing on behalf of respondents urged that the relief for ejectment of defendant appellant as contemplated under Section 41(h) of the Act was not equally efficacious relief in as much as the plaintiff wanted only removal of nuisance and not -eviction of the defendant. It was further urged that the act complained of was fully covered under the definition of "private nuisance", and the second appeal was concluded by findings of fact hence the suit has correctly been decreed.;