- (1.) The defendant who was unsuccessful in getting the plaint rejected on his application filed under Order 7, Rule 11 on the ground of non disclosure of cause of action is before us. The subject matter of the suit is proposed construction of a 240 meter tall tower having sixty floors to the west of Fountain Court where the respondent/plaintiff have residential complex, leaving a distance of only sixty seven feet in between the two properties. On the application filed by the defendant learned Judge made an elaborate discussion by referring to several citations referred to by both sides and ultimately opined that the plaint cannot be rejected on the ground of non disclosure of cause of action.
(2.) Aggrieved by the same the defendant/appellant is before us contending that none of the pleadings averred in the plaint would disclose such cause of action which amounts to actionable nuisance and, therefore, the learned Judge ought not to have dismissed the application. According to appellant though learned Judge observed that none of the annexures would be looked into for the purpose of appreciating the material at the stage of disposal of Order 7, R. 11 application, ultimately opining that the report annexed to the plaint would disclose the apprehension indicated by the plaintiff, therefore, the application has to be dismissed was wrong as the learned Judge cannot approbate and reprobate. They also contend that in the absence of violation of any of the building rules and procedure and when the appellant/defendant have in their hand a properly sanctioned plan to proceed with the construction, there was no justification for the plaintiff to approach the Court with the suit in question. They also placed reliance on a paragraph indicated at page 5 quoting Lord Halsbury in Colls Appellant; And Home And Colonial Stores, Limited Respondents. (1904) AC 179 [House of Lords.], which reads as under : "I think that no tribunal ought to find as a fact that the building is a nuisance, and, altogether apart from the inappropriateness of the remedy by injunction, I am of opinion that the plaintiffs have no cause of action against the defendant. The test of the right is, I think, whether the obstruction complained of is a nuisance, and, as it appears to me, the value of the test makes the amount of right acquired depend upon the surroundings and circumstances of light coming from other sources, as well as the question of the proximity of the premises complained of. What may be called the uncertainty of the test may also be described as its elasticity. A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action."
(3.) According to learned Senior Counsel Mr. Sudipto Sarkar, mere allegation that the proposed construction would diminish the light and air enjoyed by the plaintiff hitherto will not give any cause of action and such complaint can never be brought under the purview of easementary right. With these submissions he challenged the impugned order and sought for allowing application filed under Order 7, Rule 11 of the CPC.;