1. The appellant has filed Second Appeal against the judgment and decree dated 30-12-1996 passed in Civil 1st Appeal by the learned Addl. District Judge, Jammu whereby he was upheld the judgment and decree dated 30-12-1995 passed by the sub-Registrar, Munsiff, Jammu. The Trial court had passed the decree of permanent prohibitory injunction restraining the appellant from installing Tyre-Retreading factory near the house of the respondent by shifting it from its old site in the locality known as Karan Nagar, Jammu.

2. On the pleadings of the parties, the following issues were raised:-

1. Whether the present suit is not maintainable? OPD

2 Whether the suit property is situated in a residential locality and defendant cannot run factory of sole retreading there? OPP

3. Whether the factory of sole retreading causes nuisance. If so, what is its effect? OPP

4. Relief.

3. The trial court decided all these issues against the appellant and in favour of the respondent. These findings were up-held by the First Appellate Court. The following substantial questions of law have been formulated in the memo of appeal:

i. Whether the suit is hit by section 91 of Civil Procedure Code and therefore liable to be set aside on that score?

2. Whether any case outside the pleadings can be proved at the trial?

3. Whether any case of nuisance can be made out on the violation or breach of Master Plan?

4. Whether in the absence of pleadings or proof of the degree of the nuisance complained of a case of nuisance can be made out?

5. Whether where any activity tantamounts to causing nuisance, it is obligatory to consider the question; whether the business activity should be completely closed down or any nuisance emanating from it regulated by adopting certain measures before the matter is finally disposed of?

6. Whether the suit was barred by law by reason of the ouster of jurisdiction of the civil court to entertain, hear and dispose of the matter?

7. Whether the findings recorded by the Courts below on issues No. 1,2 & 3 are perverse and other wise vitiated by fundamentally erroneous approach by both the courts below:

4. It has been contended on behalf of the respondent that no substantial question of law is involved in this appeal and should be dismissed in limine.

Heard the arguments.

5. Regarding the first proposed substantial question of law, it has been argued on behalf of the appellant that in para 6 of the plaint there were allegations regarding the creation of private as well as public nuisance, but no full ingredients of the private nuisance as to how he and his family members were affected were given, although in the amended plaint in para No.6 certain averments were made by adding, "more particularly by the plaintiff and his family members, who are nearest and worst affected residents," That this was unauthorised addition In the plaint and could not be looked into in view of the findings dated 25-4-1988 recorded by the trial court. As no special loss or damage Is pleaded or proved so this was not a case of private nuisance but purely of public nuisance and may proceedings to be initiated were to be regulated firstly by the procedure laid down in section 91 of the Code of Civil Procedure. Since this was not done so this suit is not maintainable as being violative of the mandates of law contained in section 91 CPC and this is a serious question to be gone into.

6. The counsel appearing for the respondent has contended that even by ignoring the above stated addition of the ingredients of private nuisance as contained in the amended plaint in para No.6, there were allegations which indicated that it was a case of private nuisance. He has referred to that portion where it is alleged that, The defendant has planned to start the same trade in the entire building and in that event, the plaintiff who is residing in the nearest house shall be the worst victim of health hazard due to the facts enumerated above." He has also referred para 12 wh