A person is entitled to an injunction to restrain a private nuisance if the nuisance causes substantial injury or particular damage to the person.

( 1 ) THE plaintiff-appellant has been denied the relief sought by him on the ground that brick grinding machine of the defendant did not cause any substantial injury or special damage to the plaintiff. Learned Counsel appearing for the plaintiff has argued before me that the two courts below have not correctly appreciated the meaning of the expressions substantial injury and special damgage, as used in law.

( 2 ) THE plaintiff-appellant commenced the action giving rise to this second appeal for permanent injunction to restrain the defendant-respondent from running his brick-grinding machine.

( 3 ) IT is not in controversy between the parties that the plaintiff is a Medical Practitioner. He has built a consulting chamber before the brick-grinding machine was erected by the defendant-respondent. There is a controversy between the parlies as to whether the consulting chamber was established by the plaintiff in the year 1962 or in the year 1965. I shall refer to this controversy later in this judgment. It is also not disputed that the brick-grinding machine is electrically propelled and that it is situate at a distance of about 40 feet from the consulting chamber of the plaintiff-appellant in a north-eastern direction. There is a road which intervenes between the consulting chamber of the plaintiff-appellant and the brick-grinding machine.

( 4 ) THE grievance of the plaintiff-appellant was that the brick-grinding machine was generating dust which polluted the atmosphere and entered the consulting chamber of the plaintiff-appellant and caused physical inconvenience to him and his Patients who came to his chamber. It was further stated that the said machine had been set up by the defendant-respondent without any permission or licence from the Municipal Board.

( 5 ) THE defendant-respondent contested the suit. He did not deny that the machine was erected by him in April, 1965. He contended that no dust emanated during the process of grinding bricks and there was no question of any pollution being caused in the atmosphere. He further stated that the bricks were moistened before being subjected to grinding process and no dust resulted therefrom. He further staled that his machine did not produce any noise and according to him, the erection and working of the machine did not cause any nuisance--whether public or private. He concluded by saying that the suit had been filed against him only on account of enmity and the same was not legally sustain able,

( 6 ) THE trial court came to the conclusion that the brick grinding machine had been erected by the defendant-respondent in the year 1965 without obtaining any licence from the appropriate authority. It further held that the dust did emanate and pollute the atmosphere and that such dust was injurious to health. It also came to the conclusion that the dust produced by the machine entered the consulting chamber of the plaintiff-appellant depending on the direction of the wind. It further found that the defence taken up by the defendant-respondent was false and the evidence produced by him could not be relied upon. It, however, dismissed the suit of the plaintiff-appellant on the finding that the dust resulting from the machine did not cause any substantial injury either to the plaintiff or to his patients. The trial court also went into the question as to whether the machine belonging to the defendant-respondent caused any actionable nuisance to the plaintiff-appellant and decided that controversy against him.

( 7 ) THE court of appeal has affirmed the findings recorded by the trial court with a slight modification. Whereas the trial court had rejected the testimony of P. W. 1 Dr. Hari Shankar prasad, who was Medical Officer of Health at Ghazipur, where the machine in dispute is situate, on the ground that the same is based on hearsay, the lower appellate court has accepted his testimony. Dr. Hari Shankar Prasad had categorically stated that dust which came out from the mach