JUDGMENT :

Challenge in this second appeal is made to the judgment and decree dated 04.04.2008 passed in A.S.No.125 of 2008 on the file of the III Additional Judge, City Civil Court, Chennai confirming the fair and decreetal order dated 03.03.2008 passed in I.A.No.20208/2007 in O.S.No.6116 of 2007 on the file of the XI Assistant Judge, City Civil Court at Chennai.

2. For the sake of convenience, the parties are referred to as per the rankings in the trial court.

3. The plaintiffs in O.S.No.6116 of 2007 are the appellants in this second appeal.

4. O.S.No.6116 of 2007 has been laid by the plaintiffs for the relief of permanent injunction restraining the defendant, their men, agent or anybody claiming under them from fixing a gate to make a thorough fare from Nathan Street.

5. The case of the plaintiffs in brief is that they are the owners and residents of flats, apartments and houses at Nathan Street, Harrington Road, Chetpet, Chennai 600 031 and Nathan street is a dead end street and the houses were constructed prior to 1980. The Nathan Street is a 30ft road and towards the right side of the Nathan Street is the compound wall of Madras Christian College Higher Secondary School, the defendant and the defendant's school has five gates, of which, four gates are over the Harrington Road and one gate is on the rear side leading to McNichols Street and all along the compound wall of the defendant, the defendant did not have the gate for entry and exit on the side of the Nathan Street, where the plaintiffs are residing. Till date, the children of the defendant's school or visitors to the school do not use the Nathan Street. All along the vehicles belonging to the plaintiffs are being parked adjacent to the compound wall of the defendant which faces the Nathan Street. The compound wall of the defendant put up in the year 1986 got collapsed and damaged on 01.09.2007 and the defendant brought the contractors and measured the compound wall and decided to fix the gate opening towards the Nathan Street. On hearing the same, the residents of the said apartment including the plaintiffs called on the defendant and expressed their difficulties that would be created, if a new gate is fixed and opened towards the Nathan Street as planned by them. But the defendant declined to heed to their request.

6. Paras 4 and 5 of the plaint which are required to be considered for disposing the second appeal are extracted as contained in the plaint.

4. The Plaintiff states that if a gate is permitted to be opened towards Nathan Street, the vehicles namely cars, three wheelers, two wheelers, vans used to drop children in the morning and to pick up the children in the evening would choke this narrow street which is only 30 feet wide and will not be able to take the load of the vehicular traffic apart from adding to the risk of accidents. Needless to add the vehicles will be parked in the Street where vehicles of other residents and their visitors are already parked creating congestion and any of Plaintiffs who like to get out from their house in their car will not be able to do so. Nathan Street is a dead end street and the vehicle coming to the proposed gate to drop the children cannot take a U-turn to return to Harrignton Road except by entering school and then reversing into the Nathan Street. This will be a very difficult exercise especially as the width of the road is only 30 feet.

5. It is submitted that the noise pollution by way of drivers honking horns in view of traffic problem in a small street will cause irreparable loss and injury to the plaintiffs who are in peaceful enjoyment of their premises since 1970. The Plaintiffs especially 1st and 2nd are Apartments in which a large number of aged persons reside. Most of them had selected the Apartments only because being the dead end road, the vehicle traffic could be avoided and therefore there would be pollution by noise, dust and smoke. If the gate is allowed to be fixed all the above said rights and peaceful