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High Court Of Rajasthan
Judgename : Kan Singh
Girdharilal - Appellant
Versus
Mahadevi Sharma - Respondent
Civil Revision Petition No. 195 of 1967
Decided On : 01/12/1968
NUISANCE - INJUNCTION - TEMPORARY INJUNCTION - PRINCIPLES GOVERNING GRANT OF TEMPORARY INJUNCTION - BALANCE OF CONVENIENCE - COMPARATIVE MISCHIEF OR INCONVENIENCE - JURISDICTION OF HIGH COURT TO INTERFERE IN REVISION - ILLEGALITY IN EXERCISE OF JURISDICTION.
Fact of the Case:
Plaintiff, a heart patient, filed a suit for a permanent injunction against the defendant, her neighbor, to restrain him from working his flour mill and oil mill, alleging that the running of the mills caused nuisance and aggravated her heart condition. The trial court granted a temporary injunction restraining the defendant from working the mills beyond 8 p.m. The defendant appealed, and the appellate court set aside the trial court's order and restrained the defendant from working the oil mill altogether, while allowing the flour mill to run up to 8 p.m. The defendant filed a revision petition in the High Court.
Finding of the Court:
The High Court held that the appellate court had erred in interfering with the trial court's order without giving sufficient reasons and without considering the comparative mischief or inconvenience that would result from granting or refusing the injunction. The court noted that the appellate court had not taken into account the fact that the defendant would suffer hardship if both mills were completely stopped, and that the plaintiff had not made out a prima facie case for the complete stoppage of the oil mill.
Issues: 1. Whether the appellate court erred in interfering with the trial court's order without giving sufficient reasons and without considering the comparative mischief or inconvenience that would result from granting or refusing the injunction? 2. Whether the appellate court erred in not taking into account the fact that the defendant would suffer hardship if both mills were completely stopped? 3. Whether the plaintiff had made out a prima facie case for the complete stoppage of the oil mill?
Ratio Decidendi: 1. The High Court held that the appellate court had erred in interfering with the trial court's order without giving sufficient reasons and without considering the comparative mischief or inconvenience that would result from granting or refusing the injunction. The court noted that the appellate court had not taken into account the fact that the defendant would suffer hardship if both mills were completely stopped, and that the plaintiff had not made out a prima facie case for the complete stoppage of the oil mill. 2. The High Court held that the appellate court had erred in not taking into account the fact that the defendant would suffer hardship if both mills were completely stopped. The court noted that the defendant had obtained permission from the Municipal Board to operate both mills, and that the plaintiff had not shown that the running of the mills caused any substantial discomfort or damage to her property. 3. The High Court held that the plaintiff had not made out a prima facie case for the complete stoppage of the oil mill. The court noted that the plaintiff had not produced any expert evidence to show that the running of the oil mill caused any cracks in her house or aggravated her heart condition.
Final Decision: The High Court allowed the revision petition in part and set aside the appellate court's order. The court ordered that the defendant be restrained from running both mills simultaneously, but that he be free to run either of the two mills between the hours of 8:00 a.m. and 8:00 p.m.
2. Plaintiff Smt. Mahadevi and defendant Girdharilal are neighbours and have their houses adjacent to each other in the city of Alwar. In his house the defendant had first established a flour mill in March, 1965 and then some time in the last week of Feburary, 1967 he also established an oil mill consisting of a pair of’Kolhus.’ This led the plaintiff to bring a suit for a permanent injunction against the defendant for restraining him from working his flour mill as well as the oil mill. It was averred by the plaintiff that the running of the two mills was a cause of nuisance to her. According to her, as a result of the working of the two mills her house shakes and as a result of the shaking a crack has also been caused in that house. It was also alleged that the plaintiff was a heart patient and as a result of the thunderous noise created by the running of the two mills her ailment was aggravated. Also on account of the running of the flour mill and oil mill it was difficult to have good sleep at night, nor could the children living in the house be able to study Lastly, it was added that the crushing of’ Sarsen’ emitted bad smell and thus plaintiffs living in the house had become very discomfortable. Plaintiff also made an application for grant of a temporary injunction under Order 39 Rule 2 of the Code of Civil Procedure. On this application the learned Munsif at the out set granted an ad interim injunction restraining the defendant from working the two mills beyond 8 p. m. When this matter came up for hearing before the learned Munsif , after the defendant was served with the notice, the learned Munsif confirmed the ad interim injunction in the terms in which it was granted. The learned Munsif in doing so observed as follows:-“The main point to be decided in this case is whether the running of mills amounts to nuisance or not. Just because it makes noise it cannot be termed as nuisance. It remains to be seen from evidence, whether it is a nuisance or not. Prima facie defendant is working the machines with permission as provided in the law. If he is absolutely restrained from doing so then his machines could remain idle and he will suffer considerable loss and inconvenience. In my opinion plaintiff has not made out a case for grant of injunction and complete stoppage of machines. I see no reason to change the interim order passed earlier. The plaintiffs application is dismissed.” This order was passed on 29-3-67. Against this order of the Munsif both the parties lodged appeals before the learned District Judge; the plaintiff feeling aggrieved as temporary injunction was not granted in the terms it was desired by her, and the defendant felt aggrieved on account of the grant of temporary injunction. The learned District Judge, however, allowed the plaintiffs appeal and he set aside the order of the learned Munsif declining to issue the temporary injunction in the terms it was desired by the plaintiff and restrained the defendant from working the oil mill altogether. He, however, did not interfere with the order of temporary injunction so far as the running of the flour mill upto 8 p.m., as ordered by the Munsif , was concerned. Aggrieved by this order the defendant has made this revision application.
3. It wascontended on behalf of the petitioner that the order of the learned District Judge was not only erroneous but it showed that the learned District Judge has completely disregarded the principles that should guide an appellate Court in dealing with the grant of temporary injunction and in interfering with the order of a trial Court in such matters. It is pointed out that the learned District Judge has really given no reasons for upsetting the order of the learned Munsif and, at any
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