' Property No, 7-S-60-V11, situate in Mohallah Bhatia Nagar, G. T. Road, Gujranwala, which was a residential evacuee property, was divided vertically into two portions, one of which was transferred to one Hanif (not a party here) while the other portion was further divided into two halves, one of which was transferred for Abdul Hakim, predecessor-in-interest of the present petitioners, and the other to Allah Dad respondent. In 1976, Allah Dad applied for the grant of 'No-Objection Certificate' from the Municipal Committee for installation of an electric motor for running a saw machine in his property but his application was refused on 22-7-1976. His appeal before the Commissioner was dismissed on 8-11-1976. Nevertheless, he again applied to the Committee, but the application was once again refused on 30-11-1976. His appeal against the refusal was, however, accepted by the Additional Commissioner on 17-1-1977 which led to the issue by the Committee of 'No-Objection Certificate' on .7-2-1977. Abdul Hakim, thereupon, brought a suit on 8-2-1977 for a declaration that the 'No-Objection Certificate' granted by the Committee, was illegal, and for a permanent injunction restraining Allah Dad from installing the saw machine in the premises on the ground that it would cause serious damage to his house and endanger the life of the children but the plaint was rejected under Order VII, rule C. P. -C. On 15-2-1977 on the ground that the same did not disclose any definite cause of action and was premature. The petitioners' appeal having failed before the District Judge on 4-5-1978, they have moved the present revision petition.
2. Section 77 of the Punjab Local Government Act (XXXIV of 1975) relates to dangerous and offensive articles and trades and prohibits the carrying on of any dangerous or offensive trade or allowing any premises to be used or suffered to be used for any ,such trade or storage of dangerous and offensive articles except in conformity with the conditions of a licence to be granted for the purpose by the Municipal Committee. Subsection (3) of this section 77 empowers a Municipal Committee, with the previous sanction of the Government, to prepare and enforce a scheme in this regard. The First Schedule to this Act lists the dangerous and offensive articles and trades contemplated in section 77. Item 1 of this Schedule includes the business of storing or selling timber, while items 30 reads:- "Any other article or trade declared by Government to be dangerous to life, health or property or likely to cause nuisance either from its nature or any reason of the manner in which or the conditions under which, the same may be processed or carried on."
' Section 4 of the Act saves, unless inconsistent, the rules, regulations or bye-laws made and notifications or orders issued under the previous law, i,e, the Municipal Administration Ordinance (X of 1960), which was repealed by section 233 of the Punjab Local Government Act, 1975. One of the bye-laws so saved is Licence Model Bye-law, para. 3 of which relates to the manner in which licences are to be granted and stipulates that "all applications for licences shall be dealt with as promptly as possible and, after such scrutiny and inspection as may be necessary". The West Pakistan Municipal Committee (Dangerous and Offensive Articles or. Trades) Rules, 1960, had also been framed under section 92 of the Municipal Administration Ordinance, 1960, and notified on 16- 9-1960. The articles specified in rule 2 of these Rules are deemed to be dangerous and offensive.
These articles are nearly the same as listed in the First Schedule to the Punjab Local Government Act, 1975. Item No, 1 includes the business of storing and selling, inter alia, of timber and item 33 is the same as item 30 of the Schedule already reproduced above. A Notification bearing No, S.
0. I. (L. G.)-L. H. R.-2(5)/68 was issued by the Government of West Pakistan, Basic Democracies, Social Welfare and Local Government Department, on 28-5-1969, in exercise of powers donferred by sections 33, 34 and 92 of Municipal Administration Ordinance, 1960, and in pursuance of West Pakistan Municipal Committees (Dangerous and Offensive Articles or Trades) Rules, 1960, read with rule 7 of the West Pakistan Municipal Committees (Imposition of Taxes) Rules, 1960. This notification, which, too, can be said to have been saved by section 4 of the Punjab Local Government Act, 1975, imposes fees for licences. Items 38 and 39 thereof relate to electric motors upto 5 H. P. And electric motors above 5 H. P., respectively. This makes it clear that a licence has to be obtained for installing an electric motor. No such licence has yet issued. What was issued by the Municipal Committee is a 'No-Objection Certificate' "for the installation of an electric motor 15 H. P. For Ara Machine".
3. On this basis, it was contended by learned counsel for the respondent that as the relevant licence for running the business of the saw machine is yet to issue, the suit was premature and was also barred by section 56 (g) of the Specific Relief Act inasmuch as it sought "to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance". It was also submitted that the petitioners would have every right to bring a fresh suit upon a fresh cause under Order VII, rule 13, C. P. C.
4. The case of the petitioners however is that the running of a saw machine apart from being hazardous to life and noisy in its operation, involved storage of timber and as such was a dangerous and offensive trade contemplated by the First Schedule to the Punjab Local Government Act and that as the 'No-Objection Certificate' related to the installation of a motor pump for .The purpose of running a saw machine, it was reasonably clear that the act complained of would be a nuisance. Learned counsel referred to the map of the area produced, to show that the petitioners' premises was adjoining that of the respondent in which the machinery was to be installed and urged that as such the nuisance was inevitable. He also pointed out that the business of the machine had actually started but was stopped by the stay granted by this Court. For this; reference was made to para. 2 of the respondents' Civil Miscellaneous No, 4154/C of 1978 and the reply thereto furnished by the petitioners. In that application, the respondent has admitted that the mill had been put to working on 11-5-1978 but had been stopped because of the stay granted by this Court. This may show that although the machinery was not working on the date of institution of the suit, which is 8-2-1977, but the respondent was determined to go ahead with the_ scheme of running the saw machine. Learned counsel for the petitioners urged that a suit for injunction was competent even in the case of anticipated nuisance. In this connection, he referred to sections 4 and 35 of the Easements Act and section 54 of the Specific Relief Act. Section 4 of the Easements Act defines "easement" as being a right, inter alia, to "prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own". Section 35 of the said Act reads :-
35. Injunction to restrain disturbance.-Subject to the provisions of the Specific Relief Act, 1877, sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-
(a) if the easement is actually disturbed--when compensation for such disturbance might be recovered under this Chapter;
(b) if the disturbance is only threatened or intended-when the act threatened or intended 'must necessarily, if performed, disturb the easement."
' The relevant portion of section 54 of the Specific Relief Act reads : "54. Perpetual injunctions when granted.- When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases (namely) :-
(a) .
(h) where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion;
(c) . . . ."
' The use of the words "invades or threatens to invade" shows that the grant of an injunction is not limited to infringement of rights already taken place, but the basic idea of a suit for injunction is to restrain the doing of any act and to prevent future or threatened injury or infringement, repetition of which must be stopped in order to prevent multiplicity of suits or judicial proceedings.
5. An action to prevent a threatened nuisance is thus covered by section 35 (h) of the Easements Act, and section 54 of the Specific Relief Act. An injunction being, however, a discretionary remedy, it is not to be granted unless the Court is satisfied as to its real need, particularly where the injury is only threatened. Hence where an injunction is sought to prevent a certain act on the ground of nuisance. The Court must be satisfied that the act, done, will amount to nuisance. The Court is, however, not bound to gran an injunction in every case of nuisance. It has to satisfy itself that the same is such as would cause substantial or irreparable violation of the plaintiff's right. In case there is a reasonable and probable cause for apprehending a disturbance of a right, an injunction can issue without waiting till the actual violation takes place. In this connection, the attitude of the defendant, even after the commencement of the litigation, is relevant and significant. In Hdyanath Ray and others v. Bassesswa r Das and others (1) where the suit was for declaration of title to and confirmation of possession in a certain plot of land on the allegation that the defendant had threatened to take possession thereof, with a prayer for a temporary injunction and the defence was that the title was with the defendant, it was held that the suit cannot be dismissed on the ground that the plaint discloses no cause of action.
6. The Courts below have not failed to recognize that the action would be maintainable even if the nuisance was only threatened and not actual. The trial Court observed: "There is no denying the proposition of law that in order to entitle a person to obtain an injunction to restrain from committing the prospective nuisance, it is essential to bring out a strong case of probability that the apprehended mischief will in fact arise."
' But the plaint was rejected for the reason that it did not disclose a definite cause inasmuch as "It cannot be said with certainty that the act complained of, i,e, the installation of saw machine in question will inevitably result in an actionable nuisance". The trial Court further held that the plaint was "premature being based on vague/imaginary apprehension". The lower appellate Court held that no allegation as to what would be the nuisance and as to how it would be a nuisance, had been made out in the plaint and; therefore, the plaintiff could not substantiate any allegation which was not present in the plaint. I do not agree that the plaint does not disclose a cause sufficient to maintain the action. The plaintiff did allege -that- if the saw machine was installed so close to his portion where he resided and which is separated only by a wall 9" thick, he would suffer an injury an the safety of his children would be in danger. Even otherwise, the Courts below have also erred in taking into consideration the assertions of the C respondent in rejecting the plaint under Order VII, rule. 11, C. P. C. If in view of the pleading of the respondent the assertion as to the threat of the nuisance, became controversial, the controversy could be :resolved by framing an appropriate issue and proceeding to decide the same.
7. In this view of the matter I accept the revision, set aside the orders pasted by Courts below and direct that the suit shall be tried and disposed of according to law.
(1) 46 I C 553