IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 375 of 2002. Judgment Reserved on: 7.8.2008. Decidedon: 13.8.2008. __________________________________________________ Satya Parkash … Appellant. Versus Milap Chand and Ors. … Respondents. ___________________________________________________________ Coram: Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajnish K. Lal, Advocate. For Respondents No. 1 & 2 : Mr. Subhash Sharma, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been preferred against the judgment and decree passed by the learned District Judge, Hamirpur on 4.5.2002 in Civil Appeal No. 61 of 1994. Brief facts necessary for adjudication of this regular second appeal are that the respondents/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a suit for permanent prohibitory injunction in the Court of Sub Judge Ist Class (2), Hamirpur. The suit was contested by the appellant-defendant (hereinafter referred to as the defendant for convenience sake). The learned Sub Judge Ist Class (2), Hamirpur decreed the suit of the plaintiffs. The defendant preferred an appeal before the learned District Judge against the judgment and decree passed by the Sub Judge Ist Class (2), Hamirpur. The learned District Judge dismissed the appeal on 4.5.2002. This regular second appeal has 1 Whether reporters of the local papers may be allowed to see the judgment? 2 been filed against the judgment and decree dated 4.5.2002 passed by the learned District Judge, Hamirpur. This regular second appeal was admitted on the following substantial question of law: 1. Whether in view of the admitted position that the appellant had installed wheat thresher in the year 1976 and was using the same in the threshing season since then and the plaintiff has purchased the property in 1988-89 and constructed a house thereafter in the agricultural estate, he was entitled to object to its running and raise the plea of nuisance? 2. Whether the finding of the courts below are perverse, based on misreading of oral and documentary evidence and the inference drawn regarding nuisance and infringement to the right of the plaintiff is sustainable in law? Mr. Rajnish K. Lal has strenuously argued that the judgment and decree dated 4.5.2002 are not sustainable in the eyes of law. Mr. Subhash Sharma has supported the judgments and decrees passed by both the Courts below. Since substantial questions of law are inter-connected, these were considered together to avoid repetition. PW-1 Shri Milap Chand has deposed that mouth of the thresher is towards his house and it is in running condition since 1989. He has further deposed that he had moved an application in the Panchayat on 1.5.1989. Mr. Tilak Raj, Pradhan and Swami Ram, Ward Panch visited the spot and asked the defendants to check the flow of dust particles of thresher towards the house of the plaintiffs. He then submitted that they got themselves examined from Dr. R.S. Dhatwalia. 3 PW-2 Mukhia Ram has deposed that Milap Chand had moved an application in the Panchayat and spot was inspected in May 1989. He further deposed that ‘Bhoosa’ was moving towards the house of the plaintiffs. PW-3 Tilak Raj has supported the version of PW-2. PW-4 is Dr. R.S. Dhatwalia. He has proved prescription slips Ext. PW4/A to Ext. PW4/E . He has stated that the patients examined by him were suffering from pains and irritation in the throat and this was possible due to dust particles. PW-5 Karam Singh Banial has proved certificate Ext. PW5/A and the letter Ext. PW5/B. DW-1 Brij Lal has stated that the thresher was installed in the year 1976 and the plaintiff has constructed his house in the year 1988-1989. He has further deposed that house of the plaintiff is at a distance of 35 feet from the thresher. DW-3 Lakshaman has deposed that the thresher is in existence for the last 16-17 years and mouth of the thresher is towards South whereas the house of the plaintiff is towards the West. He has further deposed that thresher has been covered with sheet. DW-3 Lakshman has deposed that thresher is in existence for the last 16-17 years and there was no harm to the plaintiff with ‘Bhoosa’ since it is covered with ‘tarpal’. DW-4 has supported the version of DW-3. DW-5 Uttam Chand has proved the site plan Ext.PW5/A. DW-6 Santosh Kumar has stated that ‘Bhoosa’ flows towards the kitchen of the plaintiff. DW-7 Aagia Ram has admitted in his cross- examination that thresher is at a distance of 30 to 35 feet from the kitchen of the plaintiff. It is evident on the basis of the overwhelming evidence produced by the plaintiff that the thresher is in the vicinity of the 4 plaintiff’s house and ‘Bhoosa’ flows towards his house. The defendants have also admitted that the house of the plaintiff is hardly at a distance of 30 to 35 feet. Evidence of the plaintiff is reliable and inspires confidence. It has also come in the evidence that the matter was reported to the Panchayat and the Members of the Panchayat also visited the spot to take remedial measures. Mr. Rajnish K. Lal has strenuously argued that the plaintiffs have constructed their house in the year 1985 and his clients have set up thresher in the year 1989. What is to be seen is whether the nuisance is created in the vicinity of the house of the plaintiffs or not by the thresher installed by the defendants. The fact that the plaintiffs have constructed their house in the year 1989 will not disentitle them to seek the relief of permanent injunction restraining the defendants from using the thresher. It has also come in the evidence of PW-4 that the family members of the plaintiffs are suffering from pains and irritation of throat. The doctor has opined that this irritation has been caused due to dust particles. The discomfort being caused to the plaintiffs by the use of the thresher by the defendants is substantial. The operation of the thresher generates lot of dust and ‘Bhoosa’. The mouth of the thresher is towards the house of the plaintiffs. The discomfort being caused to the members of the plaintiffs’ family has been duly proved by the statement of PW-4, Dr. R.S. Dhatwalia. The Hon’ble Single Judge of Madhya Pradesh High Court in Dhanna Lal and another v. Thakur Chittar Singh Mehtapsingh, AIR 1959 MP 240 have elucidated the principles governing nuisance as under: 5 “(1) Constant noise, if abnormal or unusual, can be an actionable nuisance if it interferes with one’s physical comforts. (2) The test of a nuisance causing personal discomfort is the actual local standard of comfort, and not an ideal or absolute standard. (3) Generally, unusual or abnormal noise on defendants’ premises which disturbs sleep of the occupants of the plaintiff’s house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the plaintiff’s house or which can not allow the occupants of the plaintiff’s house to carry o n their ordinary work is deemed to be a noise which interferes with one’s physical comforts. (4) Even 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 also the noise will amount to actionable nuisance. (5) If the noise amounts to an actionable nuisance, the defence that the defendant is making a reasonable use of his own property will be ineffectual. No use of one’s property is reasonable if it causes substantial discomfort to other persons. ‘If a man creates a nuisance’ said Kekewish J. in Attorney General Vs. Cole & Sons, (1901) 1 Ch. 205 at p.207. ‘He cannot say that he is acting reasonably. The two things are self-contradictory’.” 6 The learned Courts below have correctly appreciated the evidence brought on record. There is no substantial question of law involved in this appeal and the same is dismissed. No costs. (Rajiv Sharma), J. August 13, 2008. (cr)