Full Judgment Text
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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
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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.
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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
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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
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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
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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
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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