In a noisy locality, if there is substantial addition to the noise by introduction of some machine, instrument or performance at defendant’s premises which materially affects the physical comforts of the occupants of the plaintiff’s house, then the noise will amount to actionable nuisance.

Gur Prasad Saxena and another filed suit No. 595 of 1964 against Radhey Shyam and 5 others for permanent injunction restraining the defendant No. 1 from installing and running flour mill in the premises occupied by the defendant No. 1 on 7-Ashok Marg, Lucknow. The plaintiffs alleged that a portion of the first floor of the said premises was occupied by plaintiff No. 1 as a tenant. Just below that portion lay the shop of the defendant No. 1 on the ground floor. The plaintiff No. 2 occupied a shop adjoining the shop of defendant No. 1 on the ground floor of the premises. The defendant No. 1 operated upon an oil expeller machine in his shop for about six months and thereafter he planned to instal a flour mill therein. It was alleged that prior thereto the defendant No. 1 carried a Kirana business in the shop. The installation of flour mill was opposed by the owners of the said building as also by the plaintiff No. 1. The plaintiffs alleged that they would lose their peace on account of rattling noise of the flour mill and their health would be adversely affected if the flour mill was allowed to be run. The defendant No. 1 did not agree to give up the idea of installing the flour mill hence the plaintiffs filed a suit on 23rd December, 1964. The suit was contested by the defendant No. 1 pleading inter alia that no nuisance had been caused or would be caused because of any of his alleged acts and that the plaintiffs had no right to sue. The trial court, having found that the running of the flour mill was not an actionable nuisance and that the oil plant of the defendant No. 1 was being run without causing any nuisance to the plaintiff, dismissed the suit. Against that decision the plaintiffs filed Civil Appeal No. 59 of 1968.

2. Gur Prasad Saxena filed another Suit No. 34 of 1966 on 10th January, 1966 against Radhey Shyam and 5 others for permanent injunction restraining the defendant No. 1 from running or continuing to run the oil expeller plant in his shop. This suit was also based on the ground of private nuisance. It was resisted by the defendant No. 1. The trial court having found that the running of the oil expeller plant by the defendant No. 1 was not a source of nuisance to the plaintiffs and that it would not weaken the building, dismissed the suit. The plaintiff preferred Civil Appeal No. 58 of 1968 against that decision. Both these appeals were heard together and decided by a common judgment by the learned Civil Judge, Mohanlalganj, Lucknow. The appeals were allowed and injunction was issued restraining the defendant No. 1, his servants, workmen and agents from making and causing to be made noise and vibrations from the impugned machines lodged in his premises on the ground floor of the building in question, so as to occasion nuisance, disturbance and annoyance to the plaintiff appellants, as the occupier of the residential portion of the first floor of the same building.

3. Aggrieved, Radhey Shyam has filed second appeal Nos. 133 and 134 of 1971. The appeal No. 133 of 1971 arises out of Suit No. 595 of 1964 whereas the Appeal No. 134 of 1971 arises out of Suit No. 34 of 1966. Since common questions of law and fact are involved in both these appeals, they are being disposed of by one judgment.

4. The appellate court below has, on reappraisal of evidence adduced by the parties, recorded a finding in the following terms:-

" Having regard to the locality and the situation of the property and the class of people who inhabited the same, it appears to me that the running of the impugned machines seriously interferes with the comfort physically of the plaintiff appellant and the members of the family in the occupation of his house according to the ordinary notion prevalent among reasonable men and women." The learned counsel for the appellant submitted that this finding should not be accepted and he referred me to the inspection note of Sri G. P. Srivastava, Civil Judge, Mohanlalganj, dated 10-9-1969. I have gone throu