Ramji Singh Patel vs Gyan Chandra Jaiswal

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 1799-1800/2018 (Special Leave Petition (C) No(s). 30733-30734/2013)

RAMJI SINGH PATEL APPELLANT(s)

VERSUS

GYAN CHANDRA JAISWAL RESPONDENT(s)

J U D G M E N T

A.K.SIKRI, J.

Leave granted.

2. By means of these appeals the appellant challenged the

judgment and order dated 29.05.2013 passed by the High Court of

Judicature at Allahabad in Second Appeal Nos. 622 of 2013 and 623

of 2013 whereby the High Court has allowed these appeals of the

respondent and set aside the judgment and decree that was passed by

the Trial Court in favour of the appellant and also upheld by the

First Appellate Court. The chronology of the events is as under: Signature Not Verified Digitally signed by ASHWANI KUMAR Date: 2018.06.28 14:42:55 IST Reason:

3. The respondent started running the business of Flour Mill, Oil

Mill and Expeller, Ice Factory etc. which were operated on 2

electricity from his residential accommodation. The appellant, who

is an advocate, is the owner and resident of the adjoining house,

which has a common wall with the house of the respondent.

4. According to the appellant, from the year 2003 the respondent

started operating the above said flour mill with machines, on

diesel engine, which started causing severe vibrations and air

pollution. The vibrations caused by the machines cracked the wall

of the appellant and the pollution emitted was detrimentally

affecting the health of the appellant and his family members. The

appellant being an advocate also runs his chambers from his

residence and, therefore, the severe vibration and air pollution

also started adversely affecting his professional activities.

5. Due to the aforesaid harassment and nuisance the appellant

made a complaint to the Sub-Divisional Magistrate, who directed the

Administrative Officer to file his report on the complaint of the

appellant. The Administrative Officer, after enquiry, submitted his

report on 02.12.2003.

6. Upon the report filed by the Administrative Officer, the

Sub-Divisional Magistrate directed the Station House Officer to

investigate the matter. The SHO directed the respondent to stop the

nuisance and pollution but the respondent did not comply with the

said direction. At that stage, the respondent filed Original Suit

No. 2518/2003 against the appellant wherein the respondent prayed

for perpetual injunction against the appellant from interfering in

the running of the business of the respondent. 3

7. Thereafter the appellant also filed Original Suit No. 26/2004

against the respondent wherein the appellant prayed for perpetual

injunction against the running of the business of the respondent

which was causing nuisance and pollution. After the trial, the suit

of the appellant was decreed and the Trial Court passed a decree of

permanent injunction dated 03.12.2012 prohibiting the respondent

from operating the said machines and from spreading air and noise

pollution. On the other hand, suit filed by the respodnent was

dismissed vide decree of the same date.

8. The respondent being aggrieved by the judgments and decree

passed by the Civil Judge (Junior Division) Sakri, Allahabad filed

Civil Appeal No. 206/2012 and 207/2012 before the Additional

District Judge, Court No.2, Allahabad. The Additional District

Judge, Allahabad passed a common confirmatory judgment and decreed

dated 25.02.2013 in Civil Appeal Nos. 206 and 207 of 2012 observing

that:

“i. The house of the respondent is adjacent to appellant's house and there was a wall of 4” breadth between the two houses.

ii. The respondent has a business of Flour Mill, Oil Mill and expeller, Ice factory etc. and he uses the said machines on diesel.

iii. The respondent started his business in 1990 but at that time his machines were operated on electricity.

iv. In 2003 the respondent started using expeller machine etc. which was operated on diesel which produced a lot of vibrations and air and noise pollution.

v. Because of a vibrations caused by the said 4

machines the wall on the appellant's side cracked at many places.

vi. The running of his business is detrimental to the health of the appellant and his family.

vii. The oral evidences of the witnesses made it clear that the machines used by the respondent caused vibrations and emitted air and noise pollution.

viii. It was admitted by the respondent that the machines caused air and noise pollution.

ix. The running of said business came under the ambit of private nuisance and that such activities should not be carried out in residential areas as it is detrimental to physical and mental health of people at large.

x. The defence of volunti non fit injuria does not sustain as when the appellant started living in this house in 1990 the respondent was operating the machines on electricity and it was in 2003 that the respondent started operating the machines on diesel which caused vibrations and pollution.

xi. The appellant is entitled to perpetual injunction against the respondent.”

9. Being aggrieved by the judgment and decree in Civil Appeal No.

206/2012 and 207/2012 passed by the Additional District Judge,

Allahabad, the respondent filed Second Appeals Nos. 622/2013 and

623/2013 before the Allahabad High Court. The High Court has been

pleased to allow both the Second Appeals and set aside judgments

and decree dated 03.10.2012 passed by the Civil Judge (Junior

Division), Sakri, Allahabad and 25.02.2013 passed by the Additional

District Judge, Court No. 2, Allahabad and also dismissed Original

Suit No. 26/2004.

10. A perusal of the judgment of the High Court shows that it is 5

not tinkered with any of the findings recorded by the Trial Court

and affirmed by the first appellate court. On the contrary, the

substantial question of law which was formulated by the High Court

pertains to the limitation in filing the suit which reads as under:

“Whether the suit in question was barred by time inasmcuh as prayer sought in the plaint shows that cause of action arose in 1990 though the suit was filed in 2004 and admittedly the period of limitation is only three years.”

11. According to the High Court the evidence on record shows that

the Atta Chakki was installed initially in 1990, but no

inconvenience was felt by the appellant herein and, therefore, he

did not make any complaint. The only explanation is that at that

time the respondent was running the aforesaid machine with

electricity which was not causing pollution or any inconvenience

and since from the year 2003 the respondent started using diesel

generator set (DG Set), the smoke and noise created by DG Set has

caused serious air and other pollution. This explanation has not

been found to be convincing by the High Court. Thus, influenced by

the fact that the Atta Chakki was started in 1990 and the suit was

filed 14 years thereafter, i.e. in the year 2004, it was held to be

time barred.

12. After hearing the learned counsel for the parties, we do not

find ourselves in agreement with the approach of the High Court. It

may be noted that in the first instance no such plea was taken up

by the respondent in the written submissions filed by him to the 6

suit which was filed by the plaintiff/appellant and no issue on

limitation came to be casted. Obviously, in the absence of any

such issue framed, the parties did not lead any evidence. No

doubt, even in the absence of any specific issue of limitation, by

virtue of Section 3 of the Limitation Act, power is cast on the

Court to see whether the suit is within limitation or time barred.

However, such a plea could have been taken by the respondent in the

Second Appeal before the High Court only if the issue of limitation

was raised as a pure question of law. In the instant case, we find

it to be a mixed question of law and fact and, therefore, it could

not have been entertained by the High Court for the first time in

the second appeal filed by the respondent.

13. That apart, even on merits we find blemish in the approach of

the High Court. There are at least two reasons for that which are

as under:

a) The explanation given by the appellant was justified. He had

categorically stated that nuisance started in operating the said

Atta Chakki (Floor Mill) when the respondent had installed DG Set

in the year 2003 as it emitted smoke thereby creating air pollution

and had also started creating noise pollution. Therefore, the cause

of action for filing the suit was the installation of DG Set which

was installed in the year 2003. The suit was filed in the year

2004 and was, thus, well within time.

b) Furthermore, we find that the High Court has taken a very 7

myopic view of the matter. The findings of fact which were recorded

by the courts below were clear to the effect that after the use of

DG Set by the respondent and because of the vibration created by it

and the machines run through it, cracks on the wall of the

appellant side developed at many places. This has happened after

2003. Another categorical finding is that running of the business

is detrimental to the health of the appellant and his family. Once

there are categorical findings that the flour mill of the

respondent is causing noise as well as air pollution, it would be a

continuing cause of action. Such a grave consequence of running

this mill should not have been ignored by the High Court.

14. To sum up, we find that the High Court was in error in

allowing the appeals in the aforesaid manner. These appeals are

accordingly allowed, the impugned judgment of the High Court is set

aside and the decree passed by the Courts below is restored.

15. No order as to costs.

......................J. [A.K. SIKRI]

......................J. [ASHOK BHUSHAN] NEW DELHI;

JANUARY 11,2018