A civil suit for declaration and injunction against a tenant who has unlawfully installed and run machines in the tenanted rooms without the consent of all the owners of the house and without any valid authority or license from the Corporation is maintainable.

( 1 ) THIS appeal is directed against the judgment and decree passed by Shri S. N. Banerjee, the learned Judge, 13th Bench, City Civil Court, Calcutta, in Title Suit No. 1298 of 1976.

( 2 ) THE plaintiff filed the aforesaid suit for a declaration that the defendant No. 1 (Jadunath Basak) had no right or authority to run a factory in the suit premises and for permanent and mandatory injunction.

( 3 ) IT was the case of the plaintiff (Mritunjoy Sett) that he was one of the co-owners of the suit premises No. 43f, Nilmohi Mitra Street, Calcutta, having 3/4th share therein and that defendant No. 2 Kamala Sett, the other co-owner, had th share. The entire first floor of the said premises was in occupation of the plaintiff and the garret at the top was in occupation of the near relation of the plaintiff. The defendant No. 1 was inducted as a tenant in a portion of the ground floor by the defendant No. 2 who occupied the remaining portion of the ground floor. The defendant No. 1 had been running the business of metal industries with two power driven machine in the tenanted room without the consent of the plaintiff and without any authority from the Corporation of Calcutta and melting and moulding metals and metal wire. In the process of such work, obnoxious and injurious gases were emitted and noise and vibrations were caused by the power-driven machines. The same caused nuisance to the members of the family of the plaintiff specially to his wife who had heart trouble. The continuous vibration was causing damage to the premises itself. The defendant No. 1 did not take any permission for establishing the workshop with power-driven machines from the Corporation of Calcutta under S. 436 of the Calcutta Municipal Act, hereinafter referred to as the Act, nor did he take the required health licence under S. 437 of the said Act. Accordingly, the instant suit was brought for the relief as claimed.

( 4 ) THE defendant No. 1 contested the suit by filing the written statement. It was contended inter alia that the defendant No. 1 was the tenant under the defendant No. 2 in respect of the tenanted rooms in the ground floor of 43f, Nilmoni Mitra Street and that his maternal uncle Jasodalal Basak about 15 years ago started the business of making half round rings used to human fingers and half inch tin pieces used at both ends of shew laces in the aforesaid rooms with the help of two pieces of six inches rollers run by two horse power motors having 220 voltage. After the death of Jasodalal Basak, his widow Milan Bala Basak used to run the business and after her death, the defendant No. 1 had been running that business without any addition or alteration. The defendant No. 1 denied that he had been running any moulding factory and melting metal and metal wire emitting any obnoxious or injurious gas. It was further contended that the suit premises was situated in a mixed locality having several factories and workshops and residential houses and that accordingly the little noise and vibration caused by the small machines of the defendant No. 1 during the working hours from 9 A. M. to 6 P. M. did not amount to any actionable nuisance both to the person and property of the plaintiff and his family. It was further contended that the plaintiff did not bring to the notice of the Corporation that the defendant No. 1 was running the workshop without any authority. Plaintiff was therefore not entitled to get any relief in this suit.

( 5 ) THE learned Judge, on consideration of the materials on record, found that the defendant No. 1 had no authority or licence to run the factory in the suit premises and that the running of the factory caused nuisance or annoyance to the inmates of the premises and held out potential threat or damage to the building. Accordingly the learned Judge passed the decree in part by declaring that the defendant No. 1 had no right or authority to run the factory in the suit premises and by permanently restraining the d