The determination of an actionable nuisance should consider the ordinary standard of comfort prevailing in the neighborhood and the healthful enjoyment of premises, rather than solely relying on the society's tolerance.

Pandrang Row, J.

1. This is an appeal from the decree of the City Civil Judge, Madras, dated 8th May, 1935, in O.S. No. 768 of 1934, a suit for an injunction restraining the defendant, his servants and agents from beating tom-tom and from producing loud music in his house No. 29, Ramanuja Aiyar Street, Old Washermanpet. The plaintiff is the owner and resident of the adjoining house No. 30. Both the houses are situated in a residential locality and the defendants house was also used purely for residential purposes till 1932 when the down stair portion of it was set apart by the defendant for what he considered to be a charitable purpose, namely, to allow anybody who wanted to use it temporarily for performing marriage ceremonies, pujas, etc., free of rent. The convenience of getting a building for such purposes was apparently appreciated by many people after this charity was established, for the defendants own account shows that in 1933 it was used for these pujas and ceremonies for 93 days and in 1934, the number of days rose to 122 and it would indeed appear chat there is every likelihood of the charity becoming more and more popular and the house being more and more frequently resorted to in future. The defendants main contest was that there was no actionable nuisance as a result of the noise and the only, point decided by the trial Court was whether the act complained of, that is, the production of loud music and noise in connection with ceremonies and pujas carried on in the defendants house, amounts to an actionable nuisance.

2. There is really no doubt as regards the facts, and there can be no doubt that for most of the time when the defendants downstairs is occupied for the purpose of performing ceremonies and puja the noise produced during night especially is a source of great suffering to the neighbours who are unable, on account of the noise, to get proper sleep. The learned Trial Judge was prepared to believe that at least during the performance of the ceremony known as Skanda Shashti there is terrible noise during night which is sufficient to disturb the sleep of the neighbours for at least six nights. He dealt with the question as follows:

Can we direct that during the occasion of Skanda Shashti there should not be more than a certain amount of noise or that the noise should not go beyond a certain period? I am of opinion that in our present state of society it is not possible to issue an injunction in such cases.

3. The reason given by the learned Judge is that people are superstitious and they believe that this ceremony should be performed and that shouting as loudly as possible is an essential part of the ceremony, and that Courts could not dictate to those who want to perform such a ceremony that they should not perform it in that manner. As regards the other ceremonies, especially marriages, the learned Trial Judge does not doubt that there was too much music in connection with the marriages but that as marriages are performed during special months, the noise caused in connection with marriages would not be such as to amount to an actionable nuisance especially as it is only in 3 or 4 days in a month that there is such a noise. The law which the learned Judge applied to the facts of the present case appears to be contained in the following observation:

In order that an act may be an actionable nuisance, it must be something which the society does not tolerate.

4. In other words, according to the learned Trial Judge the law is to be found in the opinion of the people in general about the act which is alleged to be an actionable nuisance. Applying this statement of the law to the facts of the case, the learned Judge was of opinion that there was no actionable nuisance and he accordingly dismissed the suit but without costs. The plaintiff appeals.

5. In this appeal by the plaintiff, objection has been taken to the statement of the law on the subject of actionable nuisance by the learned Trial Judge and I think