ORDER S. Marimuthu, J.

1. This appeal has arisen questioning the judgment and decree delivered by the Sub Judge. Pala in A.S. No. 14 of 1998.

2. Appellant as plaintiff filed O.S. No. 29 of 1997 on the file of the Munsiffs Court, Ettumenoor for a relief restraining the defendant, respondent herein, from constructing the factory for the manufacturing of cement cavity box in plaint item No. 2 of the respondent, lying on western side on the following averments. Appellant is the owner of plaint item No. 1 which is lying on the eastern side. The respondent is attempting to construct a factory for the manufacturing of cement cavity box in his property. He has left only 5 metes. If the respondent is permitted to put up such a construction for the manufacturing of the bricks, such factory will pollute the atmosphere, would cause Asthma to the husband of the appellant and would affect the education of the students, studying in the college and such pollution would also impair the hearing of the people residing in the locality.

3. Suit was resisted by the respondent on the ground that the averments found in the plaint are totally inadmissible, only on getting report from the Factory Inspector, getting consent letters from the neighbours and members of the panchayat, report from the Panchayat Authority, etc. he applied for the licence for running the factory. The Panchayat passed a resolution and issued the licence and the objection raised by the predecessor in title of the appellant was rejected. Therefore, the letter sent by the District Medical Officer after the issuance of the licence to cancel the same is unwarranted and he has no authority to do so.

4. The trial Court, examining the contentions of both sides, dismissed the suit and that was confirmed by the learned Sub Judge in the appeal.

5. The points that were urged before this Court are : (1) Whether the finding of this Court in C.R.P. No. 2314 of 1993 will operate as res judicata In maintaining the suit?; (2) whether the suit is otherwise maintainable other than res Judicata mentioned in point No. 17 and (3) whether the suit is premature in nature?

6. POINT NO. 1 : Along with the suit an interlocutory application was filed by the appellant in I .A. No. 638 of 1993 for a temporany injunction till the disposal of the suit, in which a temporary injunction order was passed. Questioning the same, the respondent filed C.M.A No 87 of 1993 before the District Court, Kottayam. That appeal was dismissed confirming the order passed by the trial Court in the I.A. The order passed in the C.M.A. was questioned before this Court in C.R.P. No. 2314 of 1993. This Court dismissed the revision confirming the order of the lower appellate Court. In the order, this Court, mainly relying upon the principle laid down in Saina v. Konderi, 1984 Ker LT 428 : (AIR 1984 Kerala 170), took the view that the suit is maintainable. Whether that finding in the revision will operate as res judicata is a question now raised.

7. Regarding this aspect, no doubt, a number of citations were referred to. The Madras High Court in Aboobacker v.. Kunhamoo AIR 1958 Madias 287; the Himachal Pradesh High Court in Kanshi Ram v. Bansi Lal AIR 1977 Him Pra 61; the Calcutta High Court in Abhi Prosad Sen v. Puspa Doshi AIR 1984 Cal 250 and the Patna High Court in Jamutra Kuer v. Director of Consolidation, Bihar AIR 1981 Patna 92 have held that a temporary order passed under Order XXXIX CPC or any other order of such nature could not be said that the matter is finally disposed of and therefore, such an order will not operate as res judicata in a proceeding where the finality has to be arrived at a later stage. In this aspect, the Supreme Court has laid down the law in Satya Dhyan Ghosal v. Suit. Deo Rajin Debi AIR 1960 SC 941, which is as follows :

"The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.

But an interlocutory order which had not. been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken can be challenged in an appeal from the final decree or order."

The above principle was reaffirmed by the Supreme Court in Prahlad Singh v. Sukhdev Singh AIR 1987 SC 1145 where it held as thus :

"It is well settled that the decision given by a Court at an earlier stage of case is binding at a later stage, though interlocutary judgments are open for adjudication by an appellate authority in an appeal against the final judgment."

In view of the above settled proposition of law, the finding of this Court in C.R.P. No. 2314 of 1993 with reference to the maintainability of the suit, will not operate as res Judicata.

8. POINTS 2 & 3 : Apart from the finding on point No. 1, for the maintainability of the suit on other grounds, the following decisions were placed. This Court in Saina's case (AIR 1984 Kerala 170) (stated supra) has held as follows :

"Having regard to the peculiar conditions relating to the enforcement of well considered municipal measures, it is a liberal view that has to be preferred and the restricted view would be a definitely retrograde step. A citizen has a right to institute a suit with a view to ensure effective implementation of the Municipal Regulations, such as the Buildings Rules in the present case, even in the absence of a specific personal injury to the person suing."

In this case the question was with reference to the grant of licence for constructing a latrine without leaving the required space as per the Kerala Municipal Corporation Building Rules. There the view as noted above is that even though a persona] injury is not caused, a suit will lie. The Madras High Court in Shanmughavel Chettiar v. Sri Ramkumar Ginning Firm AIR 1987 Madras 28 has laid down that a suit for injunction restraining defendants from starting brick kiln on their adjacent land is maintainable on the basis that proposed brick kiln would bring about the hazard of fire in ginning factory and godown. Therefore, there was an actionable nuisance. In this case a very though investigation has been made by the learned Judge in respect, of the nuisance, namely, actionable nuisance, the other infectious disease which may be caused to the neighbours etc. This Court in Mathew Lukose v. Kerala St. Pol. Con. Board (1990) 2 Ker LJ 717 has held as follows :

"Deprivation of life comprehends deprivations, other than total deprivation. Right to life is more than immunity from extinction of life. It guarantees life in its many splendoured facets, emotional, spiritual and aesthetic. Talent, thought process, human personality and expression of these, are complements of life........ Apart from the rights under Article 21, and the elegant articulations in Article 51(g), rights inhering human race have been declared, in the United Nations "Declarations of human Rights (1948)'. Pure air and sweet water, are essential for sustenance of life. Statutory recognition of this, is found in Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) 1986...... Violation of the rights statutorily recognized, is an actionable wrong, for which legal redress is available. True, there are cross cultural conflicts, thrown up by a post-industrial society. Industry and life must co-exist. There cannot be a total ban on Industries, or an exploitation of nature. But, a line has to be drawn where competing claims, balance and harmonise. Where the line is to be drawn will depend on the facts of each case."

In all the above cases of this Court and the Madras High Court, the principle laid down was that while putting up a factory near the land of the plaintiff causing actionable nuisance, a suit will lie for injunction. The facts of those cases are when examined with the facts of the present case on hand, the present suit appears to be maintainable. However, at which stage it is maintainable is another point to be examined on the basis of the decision reported in Kuldip Singh v. Subash Chander Jain (2000) 4 SCC 50 : (AIR 2000 SC 1410). In fact the facts of the case in the above decision are squarely applicable to the facts of the present case on hand. There the Supreme Court has held as follows :

"In our opinion a nuisance actually in existence stands on a differing footing than a possibility of nuisance or a future nuisance. An actually existing nuisance is capable of being assessed in terms of its quantum and the relief which will protect or compensate the plaintiff consistently with the injury caused to his rights is also capable of being formulated. In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat be so certain or imminent that an injury actionable in law will arise unless prevented by an injunction. The Court may not require proof of absolute certainty or a proof beyond reasonable doubt before it may interfere; but a strong case of probability that the apprehended mischief will in fact arise must be shown by the plaintiff. In other words, a future nuisance to be actionable must be either imminent or likely to cause such damage as would be irreparable once it is allowed to occur. There may be yet another category of actionable future nuisance when the likely act of the defendant is inherently dangerous or injurious such as digging a ditch across a highway or in the vicinity of a children's school or opening a shop dealing with highly inflammable products in the midst of a residential locality..... In our opinion, the suit as filed by the plaintiffs should be demissed with liberty to file an appropriate suit on proof of cause of action having accrued to the plaintiffs consistently with the observations made hereinabove....... The licence having already been issued by the Municipal Corporation to appellant-defendant 1, the trial Court rightly observed that the plaintiffs were at liberty to approach the Municipal Corporation and seek cancellation of license or pray for withholding the renewal thereof by making out a case for the grant of such relief within the framework of the legal provisions governing the grant and renewal of such licence. Needless to say, in the event of the plaintiffs being illegally or unreasonably denied relief by the Municipal Corporation, they would be at liberty to pursue the remedy of appeal or approach the superior authorities within the framework of the Punjab Municipal Corporation Act or such other remedy as may be available to them in accordance with law."

9. On the principle laid down in the above decision, the facts of the present case now can be examined. In the present case on hand the respondent applied for the licence for running the factory under Sections 96, 97, etc. of the Kerala Panchayats Act, 1960. On following all the formalities laid down in the Act, licence was granted under Exhibit B1 dated 7-1-1992 and it was renewed thereafter under Exhibit B2 dated 25-4-1992. A reading of Exhibits B1 and B2 would go to show that they were issued for running the factory as provided in Sections 96, 97 etc. of the Act. Therefore, it is not correct to say that for the purpose of running the factory alone licence has been issued and no sanction was accorded for the construction of the cement cavity Box. Exhibits Bl and B2 have been issued for both to construct the factory and to run the same. As held by the Supreme Court when the licence issued for running the factory and the sanction accorded for the construction of the building are not in accordance with the provisions in the Act, that can be rightly challenged by the appellant before the Appellate Authority. In this instant case it seems that it is not challenged before the Appellate Authority. However, if law permits it is open to the appellant to challenge the same before the concerned authority. Regarding nuisance, as pointed out above, the version of the appellant would be that on account of the construction of the factory and running the same for manufacturing the cement cavity box, the air will be polluted, it will cause so many diseases to the members of her family and the neighbours, it will affect the education of the children studying in the educational institutions near the locality, the sound caused by the running of the factory will impair the hearing of the appellant and other neighbours, etc. Even if these facts are accepted for the sake of arguments, they do not satisfy the requirements for instituting a suit at this stage as held by the Supreme Court in the above said decision. Therefore, when an actionable nuisance arises, that is to say, a cause of action erupts on account of the manufacturing of the cement cavity box or construction of the factory, as per the law laid down in Kuldip Singh's case (AIR 2000 SC 1410) (stated supra), a suit will lie. In that circumstance, I am of the view that the concurrent findings entered by both the Courts below need no interference. Hence, the appeal is only to be dismissed. However, the dismissal of the appeal (suit) shall not prejudice the right of the appellant to bring another action and seek an appropriate relief on proof of cause of action having accrued.

In the result, the appeal is dismissed. No costs.