- (1.) The apellant-plaintiff filed a suit for the issuance for a permanent injunction against the respondent-defendants from working their foundry in the building of Smt. Kartar Kaur, Jagat Singh and others adjoining his shop-cum-house. The learned trial Court after consideration of the entire evidence and the inspection of the spot decreed the claim of the appellant-plaintiff. The respondent-defendants went up in appeal which was partly allowed by the learned lower appellate Court.
(2.) The plaintiff-appellant has come up in second appeal before me. I have heard the learned counsel for the parties. The learned trial Court had also appointed Sh. Ved Parkash Arora, Advocate as Local Commissioner who submitted the following report :- "After the clearance of the smoke, the blower (Pankha) of the foundry was started for heating up the furnace. This blower (Pankha) creates a constant unusual noise which can disturb the sleep of the occupants of Sh. Atma Singh's house during night which is adjacent to the foundry and other neighbours also. However during day-time this noise cannot be said to be so disturbing which will not allow the plaintiff to carry on his ordinary work particularly when the locality is a noisy one on account of running of about 5 or 6 saw mills which also create a constant noise during the day time. At about 1 PM the furnace was completely heated up and the stage of melting iron in th furnace was reached. I along with Shri Chander Mohan went to the roof of the house of Shri Atma Singh. The heat of the furnace was felt while standing on the roof and the foul smell was emitting from the furnace on account of the melting of iron which was unbearable. This heat and foul smell can be a great nuisance for the occupants of the house of Shri Atma Singh particularly during summer season when they sleep on the roof during night time if the furnace is worked at night".
(3.) The learned lower appellate Court did notice this report and yet allowed the foundry to be worked for two days a month during day-time. The principle that no one should be allowed to use his own property in such a manner that it creates a nuisance for his neighbours has been settled long since when Rylands v. Fletcher,1868 3 HLR 330, was decided. From the report of the Local Commissioner, it is evident that the blower emitted sound which disturbed the sleep of the neighbours, and the furnace emitted heat which could be felt on the roof of the house of the paintiff-appellant. In this situation, the leavrened Lower appellate Court should not have disturbed the finding arrived at by the learned trial Court.;