RAMJI SINGH PATELversusGYAN CHANDRA JAISWAL

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


A                           RAMJI SINGH PATEL
                                        v.
                         GYAN CHANDRA JAISWAL
                     (Civil Appeal No(s). 1799-1800 of 2018)
B                             JANUARY 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., since
      1990, which initially operated on electricity, from his residential
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      accommodation – Appellant, is the owner and resident of the
      adjoining house, which has a common wall with the house of
      respondent – Suit by appellant in 2004 for perpetual injunction
      prohibiting the respondent from running the said business, as
      according to the appellant from the year 2003 respondent started
D     operating the flour mill with machines, on diesel engine, which
      started causing severe vibrations and air pollution – Suit decreed –
      Decree upheld by first appellate court – High Court set aside the
      orders of the Courts below – On appeal, held: Substantial question
      of law formulated by High Court pertained to the issue of limitation
      in filing the suit – No such plea was taken up by the respondent in
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      the written submissions filed by him in the suit and no evidence was
      led by the parties on the issue – Thus, no issue on limitation came to
      be casted – However, even in the absence of any specific issue of
      limitation, such a plea could have been taken by the respondent in
      second appeal before High Court only if the issue of limitation was
F     raised as a pure question of law – But, in the instant case the issue
      of limitation was a mixed question of law and fact and, therefore, it
      could not have been entertained by High Court for the first time in
      the second appeal filed by the respondent – Further, even on merits
      the approach of High Court was not correct – Impugned judgment
      of High Court set aside – Decree passed by the Courts below is
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      restored – Limitation Act, 1963 – s.3 – Suit.
            Limitation – Plea of – Question of law/fact – When can be
      raised – Discussed.
            Allowing the appeals, the Court
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                                      688
     RAMJI SINGH PATEL v. GYAN CHANDRA JAISWAL                           689


      HELD: 1.1 The judgment of the High Court has not                   A
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
pertained to the limitation in filing the suit. In the first instance
no such plea was taken up by the respondent in the written
                                                                         B
submissions 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 lead
any evidence. No doubt, even in the absence of any specific issue
of limitation, by virtue of Section 3 of the Limitation Act, 1963
power is cast on the Court to see whether the suit is within             C
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, it was a mixed question of law and fact
and, therefore, it could not have been entertained by the High
                                                                         D
Court for the first time in the second appeal filed by the
respondent. [Paras 10, 12] [692-E; 693-B-D]
      1.2 That apart, even on merits there is blemish in the
approach of the High Court. There are at least two reasons for
that which are as under:
                                                                         E
a) The explanation given by the appellant was justified. 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, the High Court had taken a very myopic view of           F
the matter. Once there were categorical findings that the flour
mill of the respondent was causing noise as well as air pollution,
it would be a continuing cause of action. Such a grave consequence
of running the mill should not have been ignored by the High
Court. [Para 13] [693-E-G, H; 694-A]
                                                                         G
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1799-
1800 of 2018.
      From the Judgment and Order dated 29.05.2012 by the High Court
of Judicature at Allahabad in Second Appeal No. 622 and 623 of 2013.
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690             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A            Anurag 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 by
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            A. K. SIKRI, J. 1. 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
C     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:
             3. The respondent started running the business of Flour Mill, Oil
D     Mill and Expeller, Ice Factory etc. which were operated on 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,
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      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
F     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
G     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
H     that stage, the respondent filed Original Suit No. 2518/2003 against the
      RAMJI SINGH PATEL v. GYAN CHANDRA JAISWAL                                  691
                     [A. K. SIKRI, J.]

appellant wherein the respondent prayed for perpetual injunction against         A
the appellant from interfering in the running of the business of the
respondent.
        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           B
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.
                                                                                 C
      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:                                  D

        “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.      E
        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.                                             F
        v. Because of a vibrations caused by the said 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.
                                                                                 G
        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.                                                 H
692            SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A             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
B             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
C             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
D     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
E     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
F             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
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      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
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      RAMJI SINGH PATEL v. GYAN CHANDRA JAISWAL                                  693
                     [A. K. SIKRI, J.]

explanation has not been found to be convincing by the High Court.               A
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          B
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 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       C
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            D
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:                                                                           E
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     F
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 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        G
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
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694            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A     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
B     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.


C     Divya Pandey                                             Appeals allowed.




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