JUDGMENT
1. Both these appeals arise out of a judgment and decree of the Court of’ the Civil Judge, Bellary in R. As. Nos. 44 of 1975 and 45 of 1975, against the judgment and decree in Original Suit Nos. 361 of 1972 and 492 of 1972 respectively, filed by the respondents in these appeals, for restraining the 1st respondent-1st defendant in each of the suits, from running the chilly pounding machine at Bellary city, premises bearing No. 135/2 of XIII Ward. Plaintiffs in two suits were different but claiming the same relief and it was only in Original Suit No. 361 of 1972, the City Municipal Council was also impleaded as the 2nd defendant. The plaintiffs in the two suits alleged that the 1st defendant, who would be referred to as the defendant hereafter, applied to the City Municipal Council, Bellary for permission to run the chilly pounding machine and on their application complaining about the nuisance subsequently, the Municipal Council did not renew the licence. The common grievance is, that the pounding machine was set up without complying with the requirements of law and great nuisance was being created on account of vibration due to the pounding of chilly. This had potential danger to the safety of the buildings as cracks bad developed after its installation. Secondly, the chilly dust shooting out of pounding pit is a health hazard -to the plaintiffs and their family members’ and lastly the sound and vibration caused mental agony to the plaintiffs and their family members. It was being worked day and night. Their mental peace was also affected and sleep disturbed. The children of the residents in the locality are disturbed in their studies and representations of this nuisance were made many a time to the Deputy Commissioner. In spite of that, the defendant persisted in continuing the nuisance and hence the suit.
2. The prayer of relief is as follows :
(a) Restraining the defendant by means of a permanent injunction from installing or running the chilly pounding machine in the premises referred to in the suit;
(b) Restraining the second defendant (in one suit, where it is a party) by means of a permanent injunction from issuing a licence to the 1st defendant either to install or run chilly pounding machine in those premises.
3. The 1st defendant resisted the suit refuting all these allegations and contended that the nuisance and hazards apprehended by the plaintiffs are without any basis.
4. The trial Court, which tried both the suits together as common questions of law and facts arise in 66th the suits, delivered common judgment after the following issues were framed and answered in the manner to be found in the judgment.
Issues in Original Suit No. 361/1972
1. Whether the plaintiffs prove that the defendant is carrying on an offensive and dangerous trade as alleged in paragraph 3 of the plaint, without obtaining licence from the Municipality?
2. Whether the plaintiffs prove that any damage has been caused in the walls of the plaintiffs building on account of the vibration caused by the pounding machine?
3. Whether the said vibration and sound are the cause for mental agony to the plaintiffs and the members of their family and whether they prove that there is any disturbance of their sleep?
4. Whether the plaintiffs can maintain this suit on behalf of the public under O. I, R. 8 of the Civil P.C., without taking permission under 0. 1, R. 8 as pleaded by the defendant?
5. Whether the pounding machine of chillies is “health-hazardous” as alleged by the plaintiffs in para 7 and whether they prove that it is a nuisance?
6. Whether the plaintiffs are entitled for relief of mandatory and permanent injunction?
7. To what relief are the parties entitled?
Issues in Original Suit No. 492/1972
1. Whether the plaintiff proves that the chilly pounding metallic pounder is 5 inches in diameter and 6 feet in length?
2. Whether the plaintiff proves that it is causing nuisance on account of the sound and noise, interfering with the normal work and life and mental peace of the plaintiff and the other inhabitants of the plaintiff in his house?
3. Whether the suit is not maintainable without obtaining the previous sanction of the Advocate General?
4. Whether the plaintiff is deprived of his profession on account of this pounding machine; and whether it is nuisance to the other residents nearby in the locality?
5. Whether there is any cause of action for the plaintiff?
6. To what relief are the parties entitled?
5. On the health hazards pleaded, the Court found the issue in the negative but held that the working of the machine causes nuisance on account of the sound and noise interfering with the normal work, life and mental peace of the plaintiffs and other inhabitants of the locality. It did not agree that, it would deprive one of the plaintiffs of the profession too and it is a nuisance to the resident of the locality. The findings on other issues are not material for the disposal of these appeals and the decree of the trial Court was to restrain the defendant from running the chilly pounding machine in premises bearing No. 135/2. The defendant was also asked to pay the costs of the plaintiffs.
6. In the appeals, preferred before the first appellate Court, the learned Appellate Judge concurred with the findings rendered by the trial Court on all the material issues and dismissed the appeals. Thus, the aggrieved defendant, has now preferred these two second appeals, challenging the findings of the first Appellate Court and also the nature of the decree that the Courts below gave to the plaintiffs.
7. During admission, it was contended in the first instance that the evidence does not establish that the defendant is guilty of causing nuisance by running the chilly pounding machine so as to affect the normal life of the plaintiffs and secondly even if the Courts were to come to a conclusion that the plaintiffs have established this fact entitling them to any decree, the Courts could not have restrained the defendant absolutely from running his pounding machine but permitted to be run so as to cause least nuisance to the plaintiffs or the neighbours. The following substantial question of law has been set down for determination, during admission :
“Whether the Courts below were justified in law in absolutely restraining the defendant appellant from working the chilly pounding machine and whether the relief should have ‘been confined against the working of the same from “6 P.M. each day to 6 P.M. of the following day”?
(6 P.M. of the following day, appears to be a mistake as the considered order passed shows that the grievanc was that the injunction should have been confined to 6 P.M. to 6 A.M. of the following day).
There was also an interim order of stay of the operation of the decree of the Courts below, subject to the condition that the appellant shall not work the chilly pounding -machine in the premises between 6 P.M. to 6 A.M. of the following day. Therefore it should be read as 6 A.M. of the following day.
8. During arguments, in these appeals, the appellant’s Counsel invited my attention to the findings of the first Appellate Court concurring with the trial Court that working of the said machine does not constitute any danger to the property and also that it does not cause health hazard. It however agreed with the trial Court that the evidence adduced in the suits by the plaintiffs proves that it is a nuisance on account of the sound produced by the working of the machine to the normal life of the plaintiffs and their family members. According to the first Appellate Court, the trial Court had given reasons which could not be said to be unsatisfactory about the existence of other chilly pounding machine at a distance of 100 ft. or so and also the flour mills. But the flourmill does not produce any sound whereas the chilly, pounding machine does produce much sound. The witness also spoke that the working of the pounding machine with metallic pounder by the defendant Veerabhadrappa gives out greater sound and they find no rest in the house on account of the sound. This evidence of the plaintiff and their witnesses found favour with both the Courts below together with the report of the Commissioner who also gave evidence as follows
“In my, opinion the noise created by the machine would interfere with the normal life of the people in the locality. I find that by the sound the study, sleep, normal talk and rest in the house will be affected. I could hear the sound from a distance of 70 to 80 ft. from the suit premises. I went to a distance of 100 ft. I could hear the sound from there as well.
This evidence of an Advocate-Commissioner clearly supported the evidence given by the other witnesses and the Courts below acting on this evidence gave a finding that the working of this machine with metallic pounder does produce sound of the magnitude complained of by the plaintiffs. Thus, the findings are findings of facts based on proper appreciation of evidence by both the Courts below and are also concurrent.
9. In the first place, the appellant’s Counsel argued that these findings are not based on proper appreciation of evidence and secondly, if it were to be accepted by this Court as well, then, the decrees passed by the Courts below need modification and they cannot stand in the nature that they are now passed. In my view, this finding of fact about the nuisance has to be accepted as concluded, based as it is on independent evidence adduced by the plaintiffs and also the evidence of the Commissioner, who had an occasion to test the magnitude of the sound produced by the working of this pounding machine.
10. I now consider the other aspect which purely relates to the nature of decree that could be given in a suit of this nature. The learned Counsel for the appellant referred to a decision of the Calcutta High Court in the case of Gotham Construction Co. v. Amulya Krishna Ghose, . In the said decision, the learned Judge referred to the form of decree that could be passed in a suit for abatement of nuisance and also observed what could be a proper decree in a case of this nature. It was pointed out that Form No. 14 in Appendix-D, Schedule 1, C.P.C. shows what a decree for injunction against private nuisance should be i.e., restraining the defendant from doing an act so as to occasion a nuisance to the plaintiff. In granting a decree for perpetual injunction, the principle, a Court of law goes by, is to do justice to both the parties, if it can. The above form of injunction secures just that. Thus in a suit of perpetual injunction to prevent the private nuisance created by hammering metal sheets in the defendant’s work-shop a decree, permanently restraining the defendant from creating any sound, nuisance in the work-shop saves the plaintiffs and others living in the locality from being discomfited by nuisance from noise. It keeps too the business of the defendant intact, provided care is taken by scientific method to keep the noise within the limits of I workshop. The past conduct, before the suit, of the defendant in paying scant attention to the complaints of the plaintiffs tends to show irresponsibility, which is a relevant consideration where the granting of an injunction is concerned.
11. It was urged that even though the, same argument was- advanced before the Courts below, depending on this decision, it did not find favour with them. The learned Counsel for respondents argued that the decree passed by the Court below is quite justified, but I am afraid, that it cannot be so. As the days advance, and scientific means could be adopted to minimise the nuisance, specially when a nation is advancing rapidly in industries, it would be rather improper to absolutely restrain persons from working out machines only on the ground that such working causes nuisance when there is no hazard to the health or the safety of the building as found by the Courts below in these suits. The appellant’s Counsel is prepared to take a qualified decree by adopting such devices as are available to eliminate possibility of nuisance produced by sound in working a pounding machine.
12. Form No. 14 relates to the industry of burning bricks and the decree should enjoin the defendant not to bum bricks on his plot so as to occasion a nuisance to the plaintiff as the owner or occupier of the dwelling house etc. The form is only intended to provide a guideline as to how decrees in suits of this nature should be provided. In my view, it was wholly unnecessary for the Courts below to pass a decree absolutely restraining the defendant from working the chilly pounding machine, if the nuisance could be abated by adopting certain devices to prevent or minimize such nuisance.
13. In that view of the matter, the appeal have to be allowed partly by modifying the decree of the Court below. Accordingly, it is hereby ordered that the appeals are allowed and the decree of the trial Court which has been confirmed by the first Appellate Court is modified as follows:
14. The defendant or defendant 1, as the case may be, is restrained from working his chilly pounding machine in a manner causing nuisance to the plaintiffs and their family members and further directed to adopt such devices as would be necessary to cause the least nuisance to the plaintiffs residing in the neighbourhood and in the event of a complaint that the defendant has not adopted any such devices to prevent nuisance, during execution, the Executing Court shall examine this grievance and give relief to the decree-holder in terms of this decree. Parties, however to bear their respective costs.
15. Appeals partly allowed.