Summary
A neighbour obtained an injunction against diesel-powered mill machinery causing vibrations, wall cracks, and air and noise pollution. The High Court dismissed his suit as time-barred by counting from the business’s commencement. The Court restored the decree: the nuisance began with diesel operation in 2003, and the pollution also constituted a continuing cause of action.
Issues
- Whether the High Court could entertain a new mixed limitation issue in second appeal and treat the nuisance suit as barred from the business’s original commencement.
Held
- Although section 3 of the Limitation Act requires scrutiny of limitation without a specific plea, a new limitation point in second appeal must be a pure legal issue. Here it involved facts, had not been pleaded or framed below, and could not first be entertained there. (¶ 12)
- The relevant cause of action arose when diesel equipment introduced in 2003 caused the nuisance, rather than when the electrically operated business began in 1990. The 2004 suit was timely. (¶ 13(a))
- Concurrent findings of damaging vibrations and harmful air and noise pollution also disclosed a continuing cause of action. The High Court erred in ignoring those consequences. (¶ 13(b))
Result
Appeals allowed; High Court judgment set aside and the decrees below restored. No costs.