K.Jayaprakashan vs P.Sudheeran
2022 Latest Caselaw 6779 Ker

            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.

              ==============================
                   R.S.A No.455 of 2008
                ==========================
           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

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

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

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