RAMJI SINGH PATEL versus GYAN CHANDRA JAISWAL on 11 January 2018

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[2018] 1 S.C.R. 688

SUPREME COURT REPORTS[2018] 1 S.C.R. 688

[2018] 1 S.C.R.

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RAMJI SINGH PATEL

v.

GYAN CHANDRA JAISWAL

(Civil Appeal No(s). 1799-1800 of 2018)

BJANUARY 11, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Code of Civil Procedure, 1908 – s.100 – Second appeal –Respondent ran the business of flour mill (Atta Chakki) etc., since1990, which initially operated on electricity, from his residentialCaccommodation – Appellant, is the owner and resident of theadjoining house, which has a common wall with the house ofrespondent – Suit by appellant in 2004 for perpetual injunctionprohibiting the respondent from running the said business, asaccording to the appellant from the year 2003 respondent startedDoperating the flour mill with machines, on diesel engine, whichstarted causing severe vibrations and air pollution – Suit decreed –Decree upheld by first appellate court – High Court set aside theorders of the Courts below – On appeal, held: Substantial questionof law formulated by High Court pertained to the issue of limitationin filing the suit – No such plea was taken up by the respondent inEthe written submissions filed by him in the suit and no evidence wasled by the parties on the issue – Thus, no issue on limitation came tobe casted – However, even in the absence of any specific issue oflimitation, such a plea could have been taken by the respondent insecond appeal before High Court only if the issue of limitation wasFraised as a pure question of law – But, in the instant case the issueof limitation was a mixed question of law and fact and, therefore, itcould not have been entertained by High Court for the first time inthe second appeal filed by the respondent – Further, even on meritsthe approach of High Court was not correct – Impugned judgmentof High Court set aside – Decree passed by the Courts below isGrestored – Limitation Act, 1963 – s.3 – Suit.

Limitation – Plea of – Question of law/fact – When can beraised – Discussed.

Allowing the appeals, the Court

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HELD: 1.1 The judgment of the High Court has nottinkered with any of the findings recorded by the Trial Court andaffirmed by the first appellate court. On the contrary, thesubstantial question of law which was formulated by the High Courtpertained to the limitation in filing the suit. In the first instanceno such plea was taken up by the respondent in the writtensubmissions filed by him to the 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 leadany evidence. No doubt, even in the absence of any specific issueof limitation, by virtue of Section 3 of the Limitation Act, 1963power is cast on the Court to see whether the suit is withinlimitation or time barred. However, such a plea could have beentaken by the respondent in the Second Appeal before the HighCourt only if the issue of limitation was raised as a pure questionof law. In the instant case, it was a mixed question of law and factand, therefore, it could not have been entertained by the HighCourt for the first time in the second appeal filed by therespondent. [Paras 10, 12] [692-E; 693-B-D]

1.2 That apart, even on merits there is blemish in theapproach of the High Court. There are at least two reasons forthat which are as under:

a) The explanation given by the appellant was justified. The causeof action for filing the suit was the installation of DG Set whichwas installed in the year 2003. The suit was filed in the year2004 and was, thus, well within time.

b) Furthermore, the High Court had taken a very myopic view ofthe matter. Once there were categorical findings that the flourmill of the respondent was causing noise as well as air pollution,it would be a continuing cause of action. Such a grave consequenceof running the mill should not have been ignored by the HighCourt. [Para 13] [693-E-G, H; 694-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1799-1800 of 2018.

From the Judgment and Order dated 29.05.2012 by the High Courtof Judicature at Allahabad in Second Appeal No. 622 and 623 of 2013.

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AAnurag Dubey, Ms. Anu Sawhney, Rajesh Pandey, Sanchit M.,S. R. Setia, Advs. for the Appellant.

Mrs. Rachna Gupta, Anil Kumar Sinha, Siddhant S. Malik, Advs.for the Respondent.

The Judgment of the Court was delivered byB

A. K. SIKRI, J. 1. Leave granted.

2. By means of these appeals the appellant challenged thejudgment and order dated 29.05.2013 passed by the High Court ofJudicature at Allahabad in Second Appeal Nos. 622 of 2013 and 623 ofC2013 whereby the High Court has allowed these appeals of the respondentand set aside the judgment and decree that was passed by the TrialCourt in favour of the appellant and also upheld by the First AppellateCourt. The chronology of the events is as under:

3. The respondent started running the business of Flour Mill, OilDMill and Expeller, Ice Factory etc. which were operated on electricityfrom his residential accommodation. The appellant, who is an advocate,is the owner and resident of the adjoining house, which has a commonwall with the house of the respondent.

4. According to the appellant, from the year 2003 the respondentstarted operating the above said flour mill with machines, on diesel engine,Ewhich started causing severe vibrations and air pollution. The vibrationscaused by the machines cracked the wall of the appellant and the pollutionemitted was detrimentally affecting the health of the appellant and hisfamily members. The appellant being an advocate also runs his chambersfrom his residence and, therefore, the severe vibration and air pollutionFalso started adversely affecting his professional activities.

5. Due to the aforesaid harassment and nuisance the appellantmade a complaint to the Sub-Divisional Magistrate, who directed theAdministrative Officer to file his report on the complaint of the appellant.The Administrative Officer, after enquiry, submitted his report onG02.12.2003.

6. Upon the report filed by the Administrative Officer, the Sub-Divisional Magistrate directed the Station House Officer to investigatethe matter. The SHO directed the respondent to stop the nuisance andpollution but the respondent did not comply with the said direction. AtHthat stage, the respondent filed Original Suit No. 2518/2003 against the appellant wherein the respondent prayed for perpetual injunction againstthe appellant from interfering in the running of the business of therespondent.

7. Thereafter the appellant also filed Original Suit No. 26/2004against the respondent wherein the appellant prayed for perpetualinjunction against the running of the business of the respondent whichwas causing nuisance and pollution. After the trial, the suit of the appellantwas decreed and the Trial Court passed a decree of permanent injunctiondated 03.12.2012 prohibiting the respondent from operating the saidmachines 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 decreepassed by the Civil Judge (Junior Division) Sakri, Allahabad filed CivilAppeal No. 206/2012 and 207/2012 before the Additional District Judge,Court No.2, Allahabad. The Additional District Judge, Allahabad passeda common confirmatory judgment and decreed dated 25.02.2013 in CivilAppeal Nos. 206 and 207 of 2012 observing that:

“i. The house of the respondent is adjacent to appellant’s houseand there was a wall of 4" breadth between the two houses.

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

iii. The respondent started his business in 1990 but at that timehis 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 vibrationsand air and noise pollution.

v. Because of a vibrations caused by the said machines the wallon the appellant’s side cracked at many places.

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

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

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

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Aix. The running of said business came under the ambit of privatenuisance and that such activities should not be carried out inresidential areas as it is detrimental to physical and mental healthof people at large.

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

xi. The appellant is entitled to perpetual injunction against theCrespondent.”

9. Being aggrieved by the judgment and decree in Civil AppealNo. 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 pleasedDto allow both the Second Appeals and set aside judgments and decreedated 03.10.2012 passed by the Civil Judge (Junior Division), Sakri,Allahabad and 25.02.2013 passed by the Additional District Judge, CourtNo. 2, Allahabad and also dismissed Original Suit No. 26/2004.

10. A perusal of the judgment of the High Court shows that it isEnot tinkered with any of the findings recorded by the Trial Court andaffirmed by the first appellate court. On the contrary, the substantialquestion of law which was formulated by the High Court pertains to thelimitation in filing the suit which reads as under:

“Whether the suit in question was barred by time inasmcuh asprayer sought in the plaint shows that cause of action arose inF1990 though the suit was filed in 2004 and admittedly the periodof limitation is only three years.”

11. According to the High Court the evidence on record showsthat the Atta Chakki was installed initially in 1990, but no inconveniencewas felt by the appellant herein and, therefore, he did not make anyGcomplaint. The only explanation is that at that time the respondent wasrunning the aforesaid machine with electricity which was not causingpollution or any inconvenience and since from the year 2003 therespondent started using diesel generator set (DG Set), the smoke andnoise created by DG Set has caused serious air and other pollution. ThisH

explanation has not been found to be convincing by the High Court.Thus, influenced by the fact that the Atta Chakki was started in 1990and the suit was filed 14 years thereafter, i.e. in the year 2004, it washeld to be time barred.

12. After hearing the learned counsel for the parties, we do notfind ourselves in agreement with the approach of the High Court. It maybe noted that in the first instance no such plea was taken up by therespondent in the written submissions filed by him to the suit which wasfiled 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 notlead any evidence. No doubt, even in the absence of any specific issueof limitation, by virtue of Section 3 of the Limitation Act, power is caston 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 theSecond Appeal before the High Court only if the issue of limitation wasraised as a pure question of law. In the instant case, we find it to be amixed question of law and fact and, therefore, it could not have beenentertained by the High Court for the first time in the second appeal filedby the respondent.

13. That apart, even on merits we find blemish in the approach ofthe High Court. There are at least two reasons for that which are asunder:

a) The explanation given by the appellant was justified. He hadcategorically stated that nuisance started in operating the said Atta Chakki(Floor Mill) when the respondent had installed DG Set in the year 2003as it emitted smoke thereby creating air pollution and had also startedcreating noise pollution. Therefore, the cause of action for filing the suitwas the installation of DG Set which was installed in the year 2003. Thesuit was filed in the year 2004 and was, thus, well within time.

b) Furthermore, we find that the High Court has taken a very myopicview of the matter. The findings of fact which were recorded by thecourts below were clear to the effect that after the use of DG Set by therespondent and because of the vibration created by it and the machinesrun through it, cracks on the wall of the appellant side developed atmany places. This has happened after 2003. Another categorical findingis that running of the business is detrimental to the health of the appellantand his family. Once there are categorical findings that the flour mill of A

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Athe respondent is causing noise as well as air pollution, it would be acontinuing cause of action. Such a grave consequence of running thismill should not have been ignored by the High Court.

14. To sum up, we find that the High Court was in error in allowingthe appeals in the aforesaid manner. These appeals are accordinglyBallowed, the impugned judgment of the High Court is set aside and thedecree passed by the Courts below is restored.

15. No order as to costs.

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Divya Pandey Appeals allowed.

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