Judgment Samir Kumar Mookherjee, J. 1. With the consent of the parties, the application or stay and the connected appeal have been taken up together for hearing after dispensation of the required formalities in terms of the Rules of this Court. 2. The present appeal is directed against Order No.1 0 dated 23rd May, 1994, passed by the learned Assistant District Judge, Midnapore, in other Suit No. 60 of 1994. By the said order, the learned Assistant District Judge has injuncted the defendent/appellant from operating his Mill, till the disposal of the suit. The defendant/appellant has preferred this appeal and there is a cross-objection, on behalf of the plaintiff/respondent, which is directed against some of the adverse findings made in the said order which was, in finality, in favour of the plaintiff. 3. Before considerating the property of the impugned order, certain relevant facts must be borne in mind, and such facts appear from the plaint, the application far injunction, the objection thereto and rejoinder to such objection. It is also to be noted that in this court the parties have filed application far inerim relief, affidavit-in-apposition thereto affidavit in reply as also supplementary affidavit, whereby certain documents, which were not before the Trial Court but came into existence subsequently, have been sought to be placed an record. Admittedly, the plaintiff and the defendant owned two adjacent premises separated by a common boundary wall; that the plaintiff uses his premises as a residence where he resides with his family, including his wife, who is allegedly a mental patient. The defendant, in his premises, has an ail mill, the working of which allegedly creates sound nuisance and vibration by the running of the Ghanies far manufacture of mustard an and air pollution caused by the pungent smell emanating therefrom; such vibrations have allegedly been causing large cracks in the plaintiff's house ; the defendant's Mill initially started an and from 13th October, 1990, when there was also valid licences in compliance with different statutory provisions, which stood renewed upto 31st March, 1994, but could not be renewed thereafter due to objection by the plaintiff; that the area was a residential area. In course of hearing of the injunction matter, no evidence was adduced by either of the parties, but the Court proceeded an affidavits. 4. In course of hearing of the injunction matter, no evidence was adduced by either of the parties, but the Court proceeded an affidavits. 4. The learned Trial Judge, in granting the injunction as aforesaid inter alia, found that the existence of doctors certificates about the mental condition of the plaintiff's wife aught to be believed that when a machine was operated, it must have created same sound but whether such sound causes any injury or not was to be proved by the defendant and non-examination of a sound expert by the defendant must be construed adversely to' him, that if the life of the plaintiff's wife was last, the lass would be irreparable from standpoint of human consideration. 5. Mr. Saktinath Mukherjee, the learned Advocates, appearing an behalf of the appellant, has assailed the impugned order an the ground that no finding has been recorded in the order itself about the extent or degree of noise pollution resulting from the running of the ail mill, nor any categorical finding is made as to whether the same has exceeded tolerable limit. According to Mr. Mukherjee sound pollution is a concomittant hazard of modren living in Metropolitan cities. He has further submitted that law of Tarts relating to' nuisance of the particular kind of sound pollution have not been supplanted by new vista of law, known as environmental jurisprudence. Mr. Mukherjee has referred to an annexure, enclosed to a supplementary affidavit filed in this Court about the Testing Report of a Professor of I.I.T. Kharagpur, having expertise, in the field of noise pollution and according to him it does not exceed the tolerable limit as laid dawn by the notable authorities. His further submission is to the effect that degree of noise pollution is capable of being measured in terms of decibels and some preliminary finding should have made and the appellant petitioner should be afforded with a reasonable opportunity to tone down the noise pollution within limits. Shorn of that, injunction with regard to running of a business is likely to result in irreparable loss and injury to his client. Mr. Arun Prakash Chatterjee, appearing for the respondent has made copious reference to the celebrated authorities on law of Torts relating to nuisance. According to Mr. Mukherjee, now the concept of noise is undergoing a change in the wake of development of environmental jurisprudence. Mr. Mr. Arun Prakash Chatterjee, appearing for the respondent has made copious reference to the celebrated authorities on law of Torts relating to nuisance. According to Mr. Mukherjee, now the concept of noise is undergoing a change in the wake of development of environmental jurisprudence. Mr. Mukherjee's contention is that in absence of proper finding to such effect, in the impugned order, the same is denuded of any substantial basis. Mr. Arun Prakash Chatterjee the learned counsel for the respondent has tried to impress on this Court that factum of running of an oil mill ipso facto is suggestive of noise emanating from there because of grinding machines and propellers being used in the said mill and this Court should imagine the extent of noise pollution, amounting to nuisance. The said scenario of noise pollution, is not merely restricted to the running of the said oil mill, noise may also arise from other sourses in Metropolitan city and it is difficult to account for as to what extent the sound is coming from the operation of the said oil mill exposing the hearing to the risk of suffering of perpetual nuisance. 6. We have given our anxious consideration to the respective submissions of the contesting parties, particularly, in view of the consequences which might result from failure on our part to appreciate the scope of consideration by us in a matter which arises out of an interlocutory order. There can be no doubt that the grievance of the plaintiff, to meet which temporarily the prayer for injunction was made before the Trial Court, relates to creation of nuisance of noise by the defendant working his oil mill with the machineries as indicated above and thus affecting the physical comfort and convenience of the plaintiff and in particular, his wife, who has been alleged to be a mental patient, as also the damage caused to the plaintiff's premises due to vibrations caused by working of the said oil mill. It is well settled in law that Court's power to grant relief is restricted to the cases where the nuisance complained of amounts to actionable nuisance and physical injury or damages is actually found to be existing. 7. It is well settled in law that Court's power to grant relief is restricted to the cases where the nuisance complained of amounts to actionable nuisance and physical injury or damages is actually found to be existing. 7. The judicial authorities have uniformly held that so far as nuisance, as in the present case, is concerned, for the Court to determine, whether it is actionable or not, various factors, such as, the locality, where the nuisance is alleged to be occurring, the extent of physical discomfort, which must exceed the tolerance limit of a reasonable man, have to be taken into consideration. This is to safeguard attempts on the part of the unscrupulous plaintiff to cause prejudice to a weak party on the ground of fanciful discomfort or inconvenience that such tests have been laid down and have been rigorously followed. It is also undoubted that the nature of the factors is such that the same may vary from place to place and the effects emanating therefrom may also vary from person to person for which it has not been possible for any Court of law to precisely define what would be treated or what should be deemed to be an actionable nuisance. These are factors or criteria, which when established or proved by the plaintiff, may be for a prima facie or a final purpose, would entitle him to the relief claimed either by a decree or at the interlocutory stage by an appropriate interim order. In recent times, it has also been judicially accepted by the Court that even when an actionable nuisance is established or proved, an opportunity should be given to the delinquent party to mitigate the same if such a nuisance can be controlled and mitigated. So far as damages to a building are concerned, the same are also required to be established by the party claiming the relief unless the initial onus stands discharged by the materials available to Court and shifts to the defendant to show the contrary. 8. In the instant case, the findings of the learned Trial Judge, on careful examination by us, have been found to be untenable. Firstly, because, the learned Trial Judge proceeded on the basis that the very fact that an oil mill was operating, was sufficient enough to indicate that nuisance was created. 8. In the instant case, the findings of the learned Trial Judge, on careful examination by us, have been found to be untenable. Firstly, because, the learned Trial Judge proceeded on the basis that the very fact that an oil mill was operating, was sufficient enough to indicate that nuisance was created. He overlooked that he was required to find out existence of an actionable nuisance and, moreover, the sound, which can be expected to be coming out due to operation of the oil mill, whether was sufficient to amount to nuisance. No such material was available to him as to enable him to make a presumption about existence of an actionable nuisance. We keep on record, at this stage, that the materials, which Mr. Mukherjee's client could obtain subsequently, in justification of his stand that there was no actionable nuisance, as it is known in this country, and introduced through the supplementary affidavit before this Court have not been taken into consideration by us. 9. The learned Trial Judge, however, failed to arrive at a finding even, Prima facie, as to whether the area was exclusively a residential area. particularly when the statement of the plaintiff in his plaint and application stood controversed by averments in the affidavit-in-opposition/Objection filed on behalf of the defendant. 10. The third error of the learned Trial Judge was in placing the onus to establish or prove the absence of required criteria or factors, on which plaintiff's claim for injunction was founded, on the defendant simply on the view that the working of the mill must have emanated sound and thus exonerated plaintiff from discharging his initial onus. We have also indicated that all sounds should not be taken to be creating nuisance, far less an actionable nuisance. The same resonings apply with regard to the alleged damages to the rooms in plaintiff's premises due to vibration caused by the working of the mill. In fact, the extent of damages was not established by any material. These are infirmities, which assume greater importance in this case, particularly when admittedly, the mill started working with the municipal licence in the year 1990 and the suit had been instituted in the year 1994. We, therefore, are inclined to and do set aside the impugned order and allow the appeal to that extent. These are infirmities, which assume greater importance in this case, particularly when admittedly, the mill started working with the municipal licence in the year 1990 and the suit had been instituted in the year 1994. We, therefore, are inclined to and do set aside the impugned order and allow the appeal to that extent. We would have remanded the matter back to the Trial Court for reconsideration according to law and in the light of the guidelines as summarised by us hereinbefore, to law in the light of the guidelines as summanrised by us hereinbefore. But, since we fell that taking of evidence in the matter for the purpose of interlocutory application would take approximately the same time as would be needed to hear out the suit on evidence. We refrain from passing an order of remand. In lieu of the order of injunction, which we have set aside, we propose to impose a condition on the defendant, regarding working of his mill during the pendency of the suit as, in our view that will be commensurate with the tests of balance of convenience and avoidance of irreparable injury to either of the parties. We direct the Trial Court to hear out the suit within a period of three months from the date. This order is brought to its notice and during the pendency of the suit, we direct that the defendant would not be entitled to operate his mill for more than 7 hours a day between 8 a.m. and 12 noon and 4 p.m. and 7 a.m. 11. This order will be without prejudice to the rights and contention of the parties in the pending suit and should not be interpreted to have exempted the defendant from complying with the statutory requirements for running of such a mill. 12. The appeal is allowed to the extent indicated above. There will be no order as to costs. The interim application becomes infructuous in view of the disposal of the appeal and is disposed of as such. 13. Let xeroxed copies of this order be delivered to the learned advocates for the parties on their usual undertakings to apply for and obtain urgent certified copies. Appeal allowed.