RADHEY SHIAM V.

GUR PRASAD SHARMA, AIR 1978 ALL 86

CASE HISTORY
The case being analysed is Second Appeal No. 133 of 1971 in the High Court of
Allahabad (Lucknow Bench). Appellant is Radhey Shiam and respondent is Gur
Prasad Serma. Honourable Judge of the case is T.S.Misra, J. The case was
decided on 25.08.1977. The case is civil in nature. Since this case is a second
appeal, before proceeding to the actual case I would like to concentrate on the
history or the facts that led to the present case.
On 23rd December 1964, Gur Prasad Saxena and another filed suit No. 595 of
1964 against Radhey Shiam and five others for permanent injunction restraining
the defendant No. 1 from installing and running flourmill and oil expeller
machine in his premises. The trial court, having found the running of flourmill
and oil plant was not actionable nuisance, dismissed the suit. On 10th January
1966, Gur Prasad Saxena filed another suit No. 34 of 1966 against and
regarding the same. The trial court again held that defendants were not causing
nuisance and dismissed the suit. Now the plaintiff filed Civil Appeal No. 59 and
58 against both the decisions respectively. The appeals were allowed and
permanent injunction was given to the defendants from running flourmill or oil
expeller plant in his shop. Radhey Shyam has filed second appeal Nos. 133 and
134 of 1971 arising out of both the cases mentioned above respectively. Since
common question of law and fact are involved in both these appeals, they were
disposed of by one judgement. We will now analyse this case (second appeal no.
133 of 1971) in detail.

MATERIAL FACTS
The following facts were treated by court as material:
The shop of the appellant is on the ground floor.
In the same premises, the respondent resides on the first floor and has his
professional office just above the shop.
If palm of the hand was placed on the wall of any room in the first floor,
vibrations could be noticed because of the running of the oil expeller
machine.
There was monotonous and continuous feeling of slight tremor or 'Zoom'
sound because of the running of the oil expeller machine.
Regard to the locality and situation of the property and the class of people
who in habited the same
Comfort of the respondent and members of his family according to the
ordinary notion prevalent among reasonable men and women.

The factual aspects of the case that could be ignored:

There were two other flourmills on the southern side of the lane.
The two other flourmills were covered by tin shed and there was no
residential portion above those flourmills.
The respondent was a tenant of the appellant.
Prior to the events, appellant carried a kirana business in the shop.

KEY QUSTION

The key questions the court required to decide were:

Was running the flourmill and an oil expeller machine an actionable nuisance?
Were noise and vibrations from the impugned machines causing enough
nuisance, disturbance and annoyance to grant a permanent injunction to the
appellant?
Which principle relating to private nuisance would apply?

DECISION
The court laid down the judgement in favour of the respondent and against the
appellant. The court decided the case by applying one of the principles relating
to private nuisance that were laid down in Dhanna Lal v. Chittar Singh (AIR 1959
Madh Pra 240). The court was able to answer all the questions of law and fact
relating to the case.
The appellate court found as a fact that the running of the impugned machines
would seriously interfere with the physical comfor of the plaintiff, and the
members of his family according to the ordinary notions prevalent among
reasonable men and women. This finding being based on evidence was not
assailable in second appeal. The plaintiffs were therefore, rightly held to be
entitled to the injunction claimed by them. There was no merit in both the
appeals. The appeals Nos. 133 of 1971 and 134 of 1971 were accordingly
dismissed with costs.

RATIO/PRINCIPLES APPLIED
The principles relating to private nuisance are well settled. In Dhanna Lal v.
Chittar Singh (AIR 1959 Madh Pra 240), eight principles are stated. The one
applicable in our case is principle No. 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.

Applying principle No. 4 set forth above, it is manifest that a person can claim
injunction to stop nuisance if in a noisy locality there is substantial addition to
the noise by introducing of some machine, instrument or performance at
defendant's premises, which materially affects the physical comforts of the
occupants of the plaintiff's house.


REASONING

The reasoning for applying the principle is that the principles of private nuisance
were by then well settled in Dhanna Lal v. Chittar Singh (AIR 1959 Madh Pra
240). The principle No. 4 (as stated above) could be without doubt applied in our
case because the facts of our case are very similar. In principle No. 4 it is stated
that, "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."
Similarly, in the given case:

The appellant and defendant lived in a noisy locality with many flourmills.
There was substantial addition of noise by appellant's flourmill and oil
expeller.
The noise directly affected the physical comforts of the defendant and his
family on first floor.
Hence, court could apply this principle in the given facts of the case.


CRITIQUE OF THE CASE

The case is still good law. It has been applied and interpreted in two of the
subsequent cases. Those cases are:

Shandmughavel Chettiar V. Sri Ramkumar Ginning Firm, AIR 1987 Mad 28

In this case, the court referred to our case and appreciating the decision held
that the plaintiffs were rightly held to be entitled to the injunction claimed by
them.

Roshan Lal and Anr. Vs. Respondent: Banwari Lal and Anr. 1986 WLN 733

In this case, also court referred to the facts of our case in detail and held that,
In the aforesaid case, reliance was placed on Dhanna Lal v. Chittar Singh. The
principles laid down in Dhanna Lal's case were followed plaintiffs were rightly
held to be entitled to injunction claimed by them. The court mentioned that
same decision was take in two other cases with similar facts as well.
Hence, we can say that the decision of our case has been interpreted and
applied quiet directly in couple of subsequent cases. We can also say that the
decision has been consistent with the principles of private nuisance lain down in
the earlier case of Dhanna Lal v. Chittar Singh (AIR 1959 Madh Pra 240
I believe that it is a good, fair and reasonable decision because the
principle of private nuisance laid down earlier in Dhanna Lal v. Chittar
Singh (AIR 1959 Madh Pra 240) has been applied to the facts of our case
with very appropriate and detailed reasoning. The decision has hence
been not criticized in any of the subsequent cases; rather it has been
appreciated and upheld.