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 in as much as 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.”
Dismissal of suit as time barred:
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 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 explanation has not been found to be convincing by the High Court. 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.
Limitation is a mixed question of fact and law:
It may 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 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 entertained by the High Court for the first time in the second appeal filed by the respondent.
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:
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 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.
Continuing cause of action in case of continued nuisance
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 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 after2003. 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 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.
To sum up, we find that the High Court was in error in allowing the appeals in the aforesaid manner.