PLJ 2000 Lahore 807
Present: mian ALLAH nawaz, J.
MUHAMMAD
SHARIF etc.-Petitioners
versus
TIPPU
SULTAN ete.—Respondents
C.R. No. 2347 of 1996, decided on
7.6.1999.
Civil Procedure Code, 1908 (V of 1908)-
—S. 115-Specific Relief Act, 1877 (I of 1877), S. 54--Suit for permanent injunction-Petitioners set up two heavy electric press and two electric motors for manufacturing footballs causing violent vibration shaking foundation of houses—Suit dismissed by trial Court, decreed by appellate Court holding that noise and vibration produced by football manufacturing machines interfered with civic amenities of respondents-Appeal against—Almost house of petitioner is at distance of 10 to 11 feet from house of respondent-Petitioner had installed two foot-ball pressing machines which were run by two electric motors-There is sufficient evidence on record that working of these machines created so much noise that it interfered with comfort and amenities of life in house of respondents/plaintiffs—One of defendants, appeared as DW-l-He even could not controvert that aforesaid machines created vibrations and very abnormal noise-Appellate Court was eminently correct and justified in coming to conclusion that noise and vibration created by machines installed in house of petitioners were so abnormal and intense that it constituted perennial actionable private nuisance-It caused physical and mental discomfort to occupants of house and affected structure of respondents/plaintiffs house-Held: View taken by appellate Court is just, correct and does not suffer from any jurisdictional or legal error calling for any interference in revisional jurisdiction by High Court-Petition totally devoid of any merit is accordingly dismissed with costs.
[Pp. 813 & 814] A, B & C
Mr. Hakam Qureshi, Advocate for Petitioners. Ch. Muhammad Naeem, Advocate for Respondents. Date of hearing: 2.6.1999.
judgment
This is a petition, under Section 115 of the Code of Civil Procedure, against judgment and decree of variance passed by learned Additional District Judge, Sialkot dated 8.9.1996 whereby he reversed the decision of learned lower Court dated 27.2.1996 and decreed the suit for perpetual injunction in accordance with prayer claimed by Tippu Sultan and another.
2. A few facts, relevant for the disposal of this petition are: that Tippu Sultan/Respondent No. 1 and Mst. Fatima Bibi were/are owner of two storeyed-house No. 20/375 situated in locality known as Deputy Bagh within the urban limits of Municipal Committee Sialkot; that Muhammad Sharif and two others/herein petitioners are owners of a house in front of that house; that the petitioners had set up two heavy electric-presses and two electric motors the purpose of manufacturing foot-balls. Feeling aggrieved, Tippu Sultan and Mst. Fatima Bibi filed a suit under Section 54 of the Specific Relief Act against petitioners for grant of perpetual injunction restraining the petitioners from running presses. It was alleged therein that presses, when in running condition, created/create such unbearable noise and vibrations that it was/is impossible for them to live in the house; that they could not sleep therein and Tippu could not concentrate in his studies and failed in F.A. Examination; that vibrations were so violent that it shook the foundation of their house. The suit was contested. It was urged in defence, although both the houses were situated in residential area, yet all the houses of the locality had become commercial in nature and their owners were carrying the business of manufacturing foot-balls in their houses as a cottage industry; that the petitioners had set up foot-ball manufacturing machinery with the permission of Municipal Committee; that it did not create any noise and vibrations so as to disturb the civic amenities of the respondents/plaintiffs. On these pleas necessaiy issues were framed. Learned First Court decided all the issues against the respondent/plaintiffs and so suit was dismissed on 5.10.1996. On appeal, however, the matter was remanded with a direction to record the statement of an expert. Pursuant to that order, Rana Nasrullah Khan, Advocate, inspected the site and submitted report Ex.R. 1. On the appraisal of the evidence so produced by the parties learned First Court found that neither any significant noise was produced by the foot-ball pressing machines nor their vibrations had any effect on the house of the respondents. On these conclusions, the learned first Court dismissed the suit on 27.2.1996. On appeal, the learned appellate Court came to a different conclusion and held that noise and vibrations produced by the foot-ball manufacturing machines interfered with civic amenities of respondents and so respondents were entitled to relief of perpetual injunction as prayed for. On these conclusions the learned trial Court decreed the suit. Hence this revision petition.
3. Learned counsel for the petitioners contended that the learned appellate Court had set aside the well considered decision of the Court below without applying his judicious mind to the facts and circumstances of the case in hand; that the house of respondents was situated in a locality wherein this business was/is being carried in almost each and eveiy house; that petitioners had set up machines with the permission of the Municipal Committee. On these premises, it was submitted that decision rendered by the appellate Court was clearly illegal, without legal basis and merited to be set aside. On the other hand learned counsel for respondents supported the decision and submitted that the vibrations and noise created by the press machines, i.e. electric motors, so mentioned, had made the living of the respondents miserable and had shaken the foundations of the house of the respondents. Reliance was placed on Dhannalal and another v. Thakur Cittarsingh (AIR 1959 Madhya Pradesh 240), Dr. Tajuddin v. Societe International De-Telecommunications Aeronautiques (1983 C.L.C. 295) and Mrs. Naz Shaukat Khan and three others and Mrs. Yasmin R. Minhas and another (1992 CLC 2540). The two issues, which emerge for consideration, are whether on the facts and circumstances of the case in hand, respondents were entitled to succeed in suit for permanent injunction and whether running, of two pressing machines in the house of petitioners, created such abnormal noise and violent vibrations/amounting to private nuisance. The expression 'nuisance' is neither defined in the Code of Civil Procedure nor in Pakistan Penal Code. Section 91 of C.P.C. provides the remedy with regard to public nuisance as defined in Section 2(44) of General Clauses Act 1897. The nuisance may be classified into two categories namely public nuisance and private nuisance. As regard the private nuisance, it falls within the compass of law of Tort. The Clerk & Lindsell, in their treaties on Tort Fourteenth Edition deals with it in following terms:
"1393. Private nuisance. The acts which constitute public nuisance are all of them unlawful acts. In private nuisance, on the other hand, the conduct of the defendant which results in the nuisance is of itself not necessarily or usually unlawful. A private nuisance may be and usually is caused by a person doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbour by (1) causing an encroachment on his neighbour's land, when it closely resembles trespass, (2) causing physical damage to his neighbour's land or buildings or works or vegetation upon it, or (3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land. It may be a nuisance when a person does something on his own property which interferes with his neighbour's ability to enjoy his property by putting it to profitable use. It is also a nuisance to interfere with some easement or profit or other right used or enjoyed with his neighbour's land.
Nuisance of the first kind, in the nature of encroachments occur when a man builds on to his own house a cornice which projects over his neighbour's garden so as to cause rainwater to flow thereon, when his trees overhang his neighbour's land, and when the roots of his trees grow into his neighbour's land.
Nuisances of the second kind, causing physical damage to land or to something erected or growing upon it, occur when a man allows a drain on his own land to become blocked or makes a concrete paved drive so that the water overflows on to his neighbour's land, maintain a mound of earth or other artificial erection on his own land so as to cause damp to enter his neighbour's land, works the mines under his own land so as to cause the surface of his neighbour's land to subside, allows building upon his neighbour's land, sets up vibrations on his own land which cause damage to his neighbour's buildings, or emits noxious fumes from his land which damage his neighbour's crops or trees.
Nuisance of the third kind, causing an interference with the enjoyment of land, are: creating stenches by the carrying on of an offensive manufacture or otherwise, causing smoke or noxious fumes to pass on to the plaintiffs property, raising clouds of coal dust, making unreasonable noises, or vibration, using a building as a hospital for infectious diseases whereby the adjoining owners live in perpetual dread of infection, or using a house for prostitution, causing crowds to collect, watching and besetting a man's house so as to compel him to act in a particular way, causing excessive heat to pass into an adjacent tenement comprised in the «a*ne block of buildings, abstracting heat and reducing premises to arctic conditions."
This concept is dealt by Winfield and Folowicz in a celebrated Book of Law of Tort 11th Edition, as under:
"Private nuisance may be described as unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it. Generally, the essence of a nuisance is a state of affairs that is either continuous or recurrent, a condition or activity which unduly interferes with the use of enjoyment of land. Not every slight annoyance, therefore, is actionable. Stenches, smoke, the escape of effluent and a multitude of different things may amount to a nuisance in fact but whether they constitute an actionable nuisance will depend on a variety of consideration, especially the character of the dependent conducts, and a balancing of conflicting interests."
In black's Law Dictionary nuisance is defined as under:
"Nuisance is that activity which arises
from unreasonable, unwarranted
or unlawful use by a person of his own property, working obstruction or injury to right of another, or to the public and producing such material annoyance,
inconvenience and discomfort that
law will presume resulting damage. State ex rel. Herman v. Cordon, 23
Nuisance comprehends interference with an owner's
reasonable
use and enjoyment of his property by means of smoke, odors, noise, or vibration, obstruction of
private easements and rights of support,
interference with public rights, such as free passage along streams and highways, enjoyment of public parks and places or recreation, and, in addition,
activities and structures prohibited
as statutory nuisances. Awad v. Me Colgan, 357
A Private nuisance includes any wrongful act which destroys or deteriorates the property of an individual or of a few persons or interferes with their lawful use or enjoyment thereof, or any act which unlawfully hinders them in the enjoyment of a common or public right and causes them a special injury different from that sustained by the general public. Therefore, although the ground of distinction between public and private nuisances is still the injury to community at large or, on the other hand, to a single individual it is evident that the same thing or act may constitute a public nuisance and at the same time a private nuisance.
The law of private nuisance, as described in Colls v. Home and Colonial Stores, Ltd. (1904) (AC 179 at P. 185) is extremely flexible. In Newman v. Real Estate Debenture Corporation Ltd. (1940-1 All ER), Atkinson, J. speaking for the Bench, said:
"As to the complaint of noise, I have no doubt whatever that, that did amount to an actionable nuisance. There were two main sources of noise. First, the lift shaft, as I have said, was not outside the flats but came up immediately under the end of the plaintiffs' bed room. Of course, it did not affect him while he was in bed because the business stopped at 6 p.m. but during the day it was constantly at work, and these collapsible metal doors, which of course had to open and shut every time the lift was used, and the movement of the lift itself coming up under the floor of the flat, I am satisfied were a source of noise. Then there was the banging of doors. There was the shop door, there was a door on every floor, and apparently the worst door of all was this fire-proof door half-way down the stairs to the basement. They were fitted with springs but not springs which controlled or checked them. There were two factors which helped noise to reach the plaintiffs flats. There was a lift shaft, which formed tube which ran up through the whole building, and the borrowed lights running up the sloping part of the stairs on each floor let the noise from each side of the flats on to the staircase. I find that the continual banging of the doors was an inconvenience materially interfering with the ordinary physical comfort of human existance according to plain and sober and simple notions obtaining among English people. 1 use that language because it is in the leading case of Walter v. Selfe, (1851) 4 De G and Sm. 315 at p. 322 and was quoted and applied by Luxmoore. I, in Vanderpant v. Mayfair Hotel Co. Ltd. 1930-1 Ch. 138 at p. 165."
The aforesaid rules were followed in Dr. Tajuddin Manji versus Societe International De-Telecommunications Aeronautiques (1983 CLC 295), Mr. Naz Shaukat Khan v. Mrs. Yasmin R. Minhas (1992 CLC 2540) and Dhannalal v. Chittarsingh (AIR 1959 Madhya Pradesh 240). In Dhannalal's case (supra) it was hcld:-
"(1) Constant noise, if abnormal or unusual, can be an actionable nuisance, if it interferes with one's physical comforts.
(2)
The
test of a nuisance causing personal discomfort is the actual local standard of comfort, and not an ideal or
absolute standard.
(3)
Generally, unusual or abnormal noise on defendant's
premises which
disturbs sleep of the occupants of the plaintiffs house during night, or
which is so loud during day time that due to it one cannot hear ordinary conversation
in the plaintiffs house, or which cannot allow the occupants of the plaintiffs
house to
carry on
their ordinary work is deemed to be a noise which interferes with
one's physical comfort.
(4) Even in a noisy locality, if their is substantial addition to the noise by introduction of some machine, instrument, or performances at defendant's remises, which materially affects the physical comforts of the occupants of the plaintiffs house then also the noise will amount to actionable nuisance.
(5)
If the noise amounts to an actionable nuisance, the
defence that the defendant is making a reasonable use of his own property will be ineffectual.
No use of one's property is reasonable if it causes substantial discomfort to
other persons." if a man creates a nuisance" said Kekewich J. in Attorney
General v. Cole & Son, 1901-1 Ch. 205 at p. 207. He cannot say that he is acting reasonably. The two
things are self-contradictory."
(6)
If the defendant is found to be carrying on his business
so as to cause
a nuisance to his neighbours, he is not acting reasonably as regards them, and
may be restrained by injunction, although he may be conducting his business in a proper
manner and according to rules framed in
this behalf either by the
Municipality
or by the Government. The latter defence can be effective in a case of public
nuisance, but not in that a private nuisance.
(7)
If an operation on the defendant's premises cannot by
any care and skill be
prevented from causing a private nuisance to the neighbours, it cannot be
undertaken at all, except with those injured.
(8)
The right to
commit a private
nuisance can, in certain
circumstances,
be acquired either by prescription or by the authority of a statute."
4. Applying the above enunciated rules to facts and circumstances of the case in hand, it is quite clear that almost house of petitioner is at a distance of 10 to 11 feet from the house of respondents; that the petitioners had installed two heavy-foot-ball pressing machines which were/are run by two electric motors. There is sufficient evidence on the record that the working of these machines created/creates so much noise that it interfered/ interferes with the comfort and amenities of life in the house of respondents/ plaintiffs.
PW-3/Tippu Sultan appeared in witness-box and supported the contents on oath. He firmly stated that the pressing machines, when in operation, created noise and vibrations which disturbed his studies; that he railed in his examination; that foundation of their house had been shaken. He was subjected to lengthy cross-examination and nothing was extracted to demolish his evidentiary value.
Rana Nasrullah Advocate/Local Commission, appeared in witness-box as RW-1. He proved his report Ex.R. 1. The perusal of Ex.R. 1 indicates that petitioners had installed two electric pressing machines in order to cut foot-balls; that the aforesaid locality had become commercial and the ground- floors were/are being utilised for manufacturing foot-balls, that the noise and vibrations created by these machines caused physical and mental discomfort to the respondents; that the living in respondents/plaintiffs house was impossible; that the vibration were slight and did not impair the house.
Muhammad Siddique, one of the defendants, appeared as DW-1. He even could not controvert that the aforesaid machines created vibrations and a very abnormal noise. The learned appellate Court was eminently correct and justified in coming to conclusion that the noise and vibration created by the machines installed in the house of the petitioners were so abnormal and intense that it constituted a perennial actionable private nuisance; that it a caused the physical and mental discomfort to the occupants of the house and affected the structure of respondents/plaintiffs' house. This view, taken by the learned appellate Court, is just, correct and in consonance with material on record. The same does not suffer from any jurisdictional or legal error calling for any interference in revisional jurisdiction by this Court.
5. For the aforesaid reasons, this civil revision is totally devoid of any merit and is dismissed with costs.
(B.T.) Petition dismissed.