IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
RSA NO. 455 OF 2008
AGAINST THE ORDER/JUDGMENT IN AS 70/2005 OF PRINCIPAL SUB
COURT, THALASSERY
OS 88/2002 OF ADDITIONAL MUNSIFF COURT, KANNUR
APPELLANT/APPELLANTS/DEFENDANTS 1 &2
1 K.JAYAPRAKASHAN,AGED 39,S/O. AMBADI, BUSINESS,
NALLANHI HOUSE,NALUMUKU, PALLIKULAM, POST
CHIRAKKAL, KANNUR TALUK, KANNUR DISTRICT.
2 K. SATHYANANDHAN, AGED 39,S/O. MADHAVAN,
BUSINESS, NELUPURAKKAL HOUSE,, PALLIKULAM, NEAR
JAYBEES COLLEGE, POST CHIRAKKAL, KANNUR TALUK,
KANNUR DISTRICT.
BY ADVS.
SRI.SUNIL NAIR PALAKKAT
SRI.K.N.ABHILASH
SMT.R.LEELA
SRI.PROMY KAPRAKKATT
SRI.SUCHITRA VARMA
RESPONDENTS:
1 P.SUDHEEDRAN,AGED 46, S/O. KUNHIRAMAN, CLERK,
PURAMERI HOUSE, PATEL ROAD, PUTHIYATHERU, POST
CHIRAKKAL, KANNUR TALUK, KANNUR DISTRICT.
2 AYISHABI, AGED 49,D/O. P.P. ABOOBACKER, PATEL
ROAD, POST CHIRAKKAL,, KANNUR TALUK, KANNUR
DISTRICT.
3 CHIRAKKAL GRAMA PANCHAYAT REPRESENTED BY ITS
SECRETARY, CHIRAKKAL,, KANNUR, KANNUR DISTRICT.
BY ADVS.
K.C.SANTHOSHKUMAR
K.K.CHANDRALEKHA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Sathish Ninan, J.
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R.S.A No.455 of 2008
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Dated this the 14th day of June, 2022
JUDGMENT
Challenging the concurrent decree in a suit for abatement of nuisance, defendants 1 and 2 are in Appeal.
2. The plaint A schedule is the residential property of the plaintiff. On its western side is the plaint B schedule property wherein the defendants 1 and 2 are conducting a wood planing unit. 3rd defendant is the owner of the B schedule property. The suit is filed alleging that the working of the planing unit causes air and noise pollution. Defendants 1 and 2 filed written statement denying the allegation of nuisance. It was contended that the functioning of the unit is on complying with the statutory formalities.
3. The trial court found that the allegations of the plaintiff regarding nuisance is correct, and accordingly decreed the suit. The Appellate court affirmed the RSA No.455 of 2008 -: 2 :- decree.
4. Heard the learned counsel on both sides on the following substantial question of Law.
"Is the finding of the courts below that nuisance is being caused to the plaintiff due to the functioning of the wood plaining unit in the plaint B schedule property based on evidence?"
5. Ext C1 is the commission report submitted in the suit by an Advocate Commissioner. He has reported about the sound and vibration caused by the functioning of the plaining unit in the plaint B schedule property and also about the nuisance caused to the people nearby consequent thereto. The very same commissioner was deputed again by the trial court, assisted by the Assistant Environmental Engineer. Ext C2 is the report filed on such inspection. Ext C2 report vouches that the functioning of the unit in question does not confirm to the statutorily prescribed standards. On appreciating the documentary and oral RSA No.455 of 2008 -: 3 :- evidence, the trial court granted a decree in favour of the plaintiff. The lower appellate court has re- appreciated the evidence on record. Ext C2 report of the expert was duly taken note of and the Appellate court concurred with the trial court. The findings of the court below are based on evidence. There is no perversity in the appreciation of evidence constituting a substantial question of law. The judgment and decree of the courts below warrant no interference.
6. It is clarified that the decree passed in the suit will not stand in the way of the appellants complying with the statutory requirements and having the unit run after obtaining due permission from the statutory authorities.
7. It appears that before the first appellate court the appellants/defendants 1 and 2 had a contention that the unit in question has been shifted to another premises. The decree passed in the suit is with specific RSA No.455 of 2008 -: 4 :- reference to plaint B schedule property. If the unit has been shifted to some other premises, necessarily it shall be open for the appellants to approach the statutory authority seeking permission for functioning of the unit on complying with the statutory requirements.
With the above observations, the Regular Second Appeal is dismissed.
Sd/-
Sathish Ninan, Judge vdv