1. This First Appeal from Order arises against an order dated 8-5-1990 passed on the application 602 for temporary injunction to restrain the defendant-appellants from running their Kolhoo in the property in dispute with the aid of 15 Horse power motor. The plaintiffs had alleged that the said working of the Oil Expeller used to create vibrations which were going to weaken their walls in the house adjacent to the building in which the expeller had been fitted. He also alleged that the Machines were creating such a great noise that the plaintiffs and their family members could not live comfortably in the accommodation in suit, nor would they be able to sleep on account of the said noise and their health would be adversely affected. It was also claimed that on account of the said noise even the children would not be able to concentrate on, their studies. At the end the allegation was that the running of the Machines was a constant nuisance and as such the respondents deserved to be restrained from operating the said machine. It was also alleged that earlier one Asfaq Ullah had set up a Saw machine in the neighbourhood of the plaintiffs' house, on account of which wife of the applicant Sheelawati had fallen ill in the year 1970 and had become a patient of T.B. On suit No. 126 of 1971 (Raghubir Singh v. Asfaq Ullah) being filed, the said suit was decreed with costs stop the said Saw machine and the appeal preferred against the said order was dismissed and the injunction order against the defendant was in force even at the time when the suit was filed. It was consequently prayed that the 'defendant-appellant be also restrained by means of an interim injunction to operate the said Machine during the pendency of the suit in the court below.
2. The application was contested by the defendant-appellants. It was alleged that the plaintiff and his family members do notreside in the accommodation in dispute and they resided in a building situated in Morganj by the side of the Mansharam building. It was claimed that the machine had been set in the residential house of the defendant where the defendants' two sons used to reside. It was alleged that the expeller in this building had been fixed by putting it close to the wall of the, defendants itself. It was denied that the running of the Expeller was going to affect the walls of the house inasmuch as the foundation for the Expeller was 9' deep and the Expeller had been functioning for more than a week without any nuisnance to the plaintiffs. It was also alleged that there was neither any skylight nor any window in the wall with the result that no nuisance could be caused to the plaintiffs on account of the running of the Expeller. It is also claimed that the Expeller had been fixed in a house which fell in a commercial cum residential zone, where other Saw Machines etc. were already functioning. It was also asserted by the defendants that they had obtained loan from the U.P. Financial Corporation in a tune of about Rs. I lac and had started the business after obtaining necessary licence etc. and also after obtaining the no objection certificate from the authorities concerned. It was also contended that it was wrong to compare the alleged nuisance with the nuisance which might have been created on account of the Saw machines fixed by Asfaq Ullah. It was further contended that in view of the fact that the defendants were running the expeller after obtaining loan and necessary licence etc., hence no order of interim injunction should be granted to the plaintiffs.
3. After hearing the respective parties, the court below granted the order of interim injunction against which the appellants have come up in appeal to this court.
4. I heard learned counsel for the appellants and as also the learned counsel for the respondents earlier on 6-2-91. It was argued by learned counsel for the appellants that the observation of the court below that setting up of an expeller with a 15 Horse Power Motor was in a residential zone which was objectionable and was likely to affect the health etc. ofthe plaintiffs was factually incorrect. It was argued that the observation of the court below was wrong inasmuch as the accommodation in dispute fell in a zone which was residential cum commercial in nature. Since the licence etc. had been admittedly granted to the defendant-appellants and since it had been specifically asserted in their objection in the court below that the expeller had been fitted in an area which was both commercial cum residential one, it was asserted by learned counsel for the appellant that any interim order of injunction to stop working of a commercial establishments on the allegation that it was likely to create a nuisance wouid result in the establishments to be closed at the outset without any positive enquiry by the court in that regard. To me this contention appears to be correct. I am of the view that normally a finding regarding nuisance should be a matter of evidence and it would be only after the full evidence is considered in detail including the question -- whether the business activity should be completely closed down or any nuisance emaneting from it should be regulated by adopting certain measures etc. should be considered first before a suit for injunction is finally disposed of; and the commercial establishments in a commercial zone should not be asked to be closed down forthwith merely on the allegation that it was likely to create some noise etc. Such an order, if permitted, is bound to render the entire commercial activity to be reduced to a complete halt. It was on this consideration that I was willing to allow the appeal on the previous date itself. However, as the ordersheet on 6-2-1991 indicates learned counsel for the respondents had sought time to produce the documentary evidence before this court from the record of the court below to show that the area where the machinery had been set up was in an exclusively residential area. It was thus on his request that this case was directed to be listed again today, i.e. 20-2-1991.
5. When the case was taken up today, learned counsel for the respondents said that he had not been able to obtain the documentary evidence to demonstrate that the accommodation in dispute lies in an areawhich is exclusively residential in nature. Consequently in view of my discussion above, in the absence of any evidence to the contrary, 1 consider that the impugned order granting an interim injunction during the pendency of the suit to restrain the defendants to operate their Kolhoo altogether with the aid of 15 Horse Power Motor was not correct. However there is force in the contention of learned counsel for the respondent that in an area which is residential-cum-commercial in nature, no business activity of this type should be permitted during the night when people after the day long labour retire to their abodes.
6. Accordingly while allowing the present appeal, I set aside the order dated 8-5-90 passed by the court below to the extent by which it restrains the defendants-appellants to operate their Kolhoo during the day time. However, it is made clear that the defendant-appellants shall not run their Kolhoo after 9 p.m. on all the working days and on such weekly holidays when the business activities have been directed to be not carried on on account of the weekly closure of the commercial establishments.
7. It is also made clear that this decision will not be affecting the decision of the court below to decide the suit itself on merit on the basis of the evidence which may come on the record. Whether a decree for permanent injunction should or should not be passed in this case, shall be decided by the Court below exclusively on the basis of the evidence led by the parties in this case. The court below is directed to dispose of the suit pending before it expeditiously.
8. In view of the facts and circumstances of the case, the parties are directed to bear their own costs. The stay order granted in this case earlier stands automatically vacated in terms of the order passed today in this First Appeal From Order.
9. Appeal allowed.