In order to establish an actionable nuisance, the plaintiff must prove that the defendant's conduct causes substantial interference with the plaintiff's use and enjoyment of his land.

Samir Kumar Mookherjee, J.

1. With the consent of the parties, the application or stay and the connected appeal have been taken up together for hearing after dispensation of the required formalities in terms of the Rules of this Court.

2. The present appeal is directed against Order No.1 0 dated 23rd May, 1994, passed by the learned Assistant District Judge, Midnapore, in other Suit No. 60 of 1994. By the said order, the learned Assistant District Judge has injuncted the defendent/appellant from operating his Mill, till the disposal of the suit. The defendant/appellant has preferred this appeal and there is a cross-objection, on behalf of the plaintiff/respondent, which is directed against some of the adverse findings made in the said order which was, in finality, in favour of the plaintiff.

3. Before considerating the property of the impugned order, certain relevant facts must be borne in mind, and such facts appear from the plaint, the application far injunction, the objection thereto and rejoinder to such objection. It is also to be noted that in this court the parties have filed application far inerim relief, affidavit-in-apposition thereto affidavit in reply as also supplementary affidavit, whereby certain documents, which were not before the Trial Court but came into existence subsequently, have been sought to be placed an record. Admittedly, the plaintiff and the defendant owned two adjacent premises separated by a common boundary wall; that the plaintiff uses his premises as a residence where he resides with his family, including his wife, who is allegedly a mental patient.

The defendant, in his premises, has an ail mill, the working of which allegedly creates sound nuisance and vibration by the running of the Ghanies far manufacture of mustard an and air pollution caused by the pungent smell emanating therefrom; such vibrations have allegedly been causing large cracks in the plaintiff's house ; the defendant's Mill initially started an and from 13th October, 1990, when there was also valid licences in compliance with different statutory provisions, which stood renewed upto 31st March, 1994, but could not be renewed thereafter due to objection by the plaintiff; that the area was a residential area. In course of hearing of the injunction matter, no evidence was adduced by either of the parties, but the Court proceeded an affidavits.

4. The learned Trial Judge, in granting the injunction as aforesaid inter alia, found that the existence of doctors certificates about the mental condition of the plaintiff's wife aught to be believed that when a machine was operated, it must have created same sound but whether such sound causes any injury or not was to be proved by the defendant and non-examination of a sound expert by the defendant must be construed adversely to' him, that if the life of the plaintiff's wife was last, the lass would be irreparable from standpoint of human consideration.

5. Mr. Saktinath Mukherjee, the learned Advocates, appearing an behalf of the appellant, has assailed the impugned order an the ground that no finding has been recorded in the order itself about the extent or degree of noise pollution resulting from the running of the ail mill, nor any categorical finding is made as to whether the same has exceeded tolerable limit. According to Mr. Mukherjee sound pollution is a concomittant hazard of modren living in Metropolitan cities. He has further submitted that law of Tarts relating to' nuisance of the particular kind of sound pollution have not been supplanted by new vista of law, known as environmental jurisprudence. Mr. Mukherjee has referred to an annexure, enclosed to a supplementary affidavit filed in this Court about the Testing Report of a Professor of I.I.T. Kharagpur, having expertise, in the field of noise pollution and according to him it does not exceed the tolerable limit as laid dawn by the notable authorities. His further submission is to the effect that degree of noise pollution i