'C.M.A. No, 5945 of 20Q5: ' KHALID ALI Z. QAZI, J.-This is an application filed by the plaintiff under Order XXXIX, rules 1 and 2 read with section 151, C.P.C,, seeking an order to restrain the Defendants Nos.l and 2 (their agents and employees) from using the boundary wall of the plaintiff's bungalow and/or affecting such boundary wall with C.N.G. Gas pipeline and other installation and from constructing the C.N.G. Plant room and tyre/tube service station adjoining the said boundary wall and/or causing any obstruction in the entry-gate of the plaintiff's said bungalow and/or doing any other act which may adversely affect the boundary wall and the bungalow/pfemises of the plaintiff in any manner whatsoever, pending disposal of the main suit.
2. The brief facts giving rise to the present case are that the plaintiff has claimed to be the owner of a residential bungalow situated at plot No, 220, El Lines, Dawood Pota Road, Saddar Karachi, admeasuring 2606 sq. Yds. The Defendants are running a Caltex Petrol Pump and Service Station on the plot adjoining the plot claimed to be owned by the plaintiff. The plot of the Defendants bears No, 217, El Lines Dawood Pota Road, Karachi (hereafter referred to as the "suit property").
3. This suit was filed on 23-7-2005. According to the plaintiff the defendants were preparing for the installation of C.N.G. Facilities on the suit property; and for such purposes the said defendants had affixed big and huge gas pipelines on the common boundary wall of the parties. It is alleged by the plaintiff that the defendants had fixed iron brackets through the wall facing the Plaintiff's Plot. It is further suggested by the plaintiff that for affixing such pipes and brackets, the employees and mechanics of the defendants scaled over the boundary wall and came, inside the compound of the plaintiff. It is further stated that the defendants constructed a big room for the C.N.G. Plant and a room for the tyre/tube shop on the suit property immediately next to the common boundary wall.
In order to stop/remove the alleged construction the plaintiff had sent a legal notice through her counsel dated 19-7-2005 and upon the failure to take remedial action the present suit was filed.
4. Vide order dated 26-7-2005 Mr. Masood Shereyar Advocate was appointed a Commissioner to inspect the premises and submit his report, while on 29-7-2005, before the Commissioner could submit the inspection report, the Court restrained the defendants "from raising or making any construction" on the suit property till the next date of hearing, by way of an ad interim arrangement.
5. On 3-8-2005 the Commissioner i.e, Mr. Masood Shereyar Advocate submitted his report, the salient whereof are as follows
(a) On the plot line bisecting the suit property so also property of the plaintiff both the plaintiff and the defendants have constructed their respective boundary walls without any gap and overlap;
(b) near the entrance gate of the plaintiff's bungalow there is an underground "valve pit" with a removable iron cover fixed at the ground level, which is the source for the supply of the C.N.G. Gas to the meter room constructed next to the boundary wall on the northern side of the suit property.
This meter room is in close proximity to the main entrance gate of the plaintiff's bungalow;
(c) the defendants have raised their part of the boundary wall (adjoining the plot of the plaintiff) by 2 feet and thereon they have fixed 5 clips, while bolting them out towards the side of the Plaintiff's plot for the purposes of fixing the brackets to hold the C.N.G. Gas pipeline on the defendant's side of the boundary wall;
(d) the heavy C.N.G. Gas pipeline is hanging on the boundary wall (on the side of the suit property as per photographs) and may collapse creating a mishap, resulting in damage and loss to the property of the plaintiff;
(e) in view of the bolting and fixation of the gas pipeline the boundary wall facing the plaintiff's bungalow has suffered cracks on different places;
(f) the defendants have installed a big generator of the size measuring 5 x 15 feet and 6.5 feet high along the northern side of the boundary wall on the suit property. The gap between the boundary wall and the generation is 3 feet;
(g) the generator is used for 19 hours out of 24 hours (in a day) and when there is an electricity break down in the locality;
(h) the generator makes a horrible sound, emitting hazardous smoke from its chimney, which is "troublesome and unbearable for the inmates of the plaintiff's said bungalow";
(i) potion of the plaintiff's house facing the boundary wall is being blackened (perhaps due to the chimney's smoke from the generator, while this is not so specified by the learned Commissioner) and hence the value of the plaintiff's bungalow is being adversely affected day by day.
6. The defendants filed objections to the report of the learned Commissioner dated 3-8-2005, in which the following has been stated:--
(a) the observations of the learned Commissioner that the C.N.G.Gas pipelines may collapse any time, which may create a mishap and result in the damage and loss to the plaintiff's property, is vehemently disputed;
(b) it is stated that the learned Commissioner is an advocate and is not an architect, civil or structural engineer who could possibly comment upon the strength of the C.N.G. Pipelines. As both his comments are disputed as presumptuous. It is further stated that the gas pipeline has been laid down as per the plan which has been approved by the authority who are the best judges as to the safety of the same;
(c) the competent authorities have inspected the premises and have raised no objection;
(d) many C.N.G. Stations throughout the country have a similar facility;
(e) the defendants have also disputed the observations of the learned Commissioner with regard to the sound of the generator and the hazardous nature of the smoke being emitted from its chimney. It is stated that such observations apart from being beyond the scope of the commission are factually incorrect;
(f) the generator is only used in case of an electricity breakdown and the same is not a permanent feature;
(g) it is further stated that the generator has been working for the last three decades without any objection from the plaintiff and how the learned Commissioner has been able to gauge the quality of the noise and aspects of health hazards are a total mystery;
(h) the chimney of the generator has been redirected and now there is no PQSsibility of blackening of the plaintiff's property.
7. In the above backdrop the Court passed an order on 23-1-2006, which is extremely relevant and the important aspects thereof are underscored as follows:~
(a) the learned counsel for the defendants volunteered to remove all the justified grievances of the plaintiff with regard to the gas pipelines, the placement and noise level of the generator;
(b) the Nazir was directed to inspect the premises within one week first and. Thereafter carry out a second inspection on 22-2-2006 with a view to report and note down the differences in the state of affairs in both such inspections;
(c) in particular the Nazir was directed to note down the noise level of the generator and the disturbances which it was creating and also to what extent the plaintiff's property was being exposed to any danger because of installation of the gas pipelines.
8. In compliance to the order of the Court dated 23-1-2006 the Nazir conducted 2 inspections; one on 6-2-2006 and the other on 27-2-2006. The findings of the Nair in respect of his inspection conducted on 6-2-2006 are as follows
(a) the C.N.G. Facilities were in operation. The compressor of the C.N.G. Is fixed in another room which is in middle of the petrol pump and its function is automatic;
(b) the C.N.G. Pipelines were fixed on the Common boundary wall facing the suit property;
(c) the petrol pump (i.e, the suit property) and the house of the plaintiff are situated in the heart of Saddar a very congested area. The area is srurrounded by high rise buildings and the petrol pump is corner plot at the cross roads of Dr. Dawood Pota Road and the Inverarity Road. The said Inverarity Road is a commercial road;
(d) in the entire area the traffic noise is so high that after measuring and perceiving the level of sound/noise on the three comers of the petrol pump and from inside various places of the plaintiff's plot it can safely be concluded that the traffic sound is far more than any noise of a generator and C.N.G. Equipment placed in the suit property. At all times the traffic noise was far high than any other noise;
(e) Mr. Muneer Bhutto, Advocate for the plaintiff did not controvert the contention of Dr. Muhammad Farogh Naseem the leamed counsel for the defendant that the house was not occupied;
(f) while standing around the house the noise of the taffic was much more than any other noise including that of the petrol pump, generator or C.N.G. Equipment. Thus the position inside the house could hardly be altered;
(g) although the plaintiff did not permit the Nazir to go inside the constructed house, having seen the same from outside, the gate and the out-house adjacent to the boundary wall, the Nazir observed that the entire house was in a very dirty state of affairs.
9. In respect of the second inspection conducted by the Nazir on 27-2-2006, it was observed by him as followes:-
(a) the gas pipeline previously installed on the boundary wall had been removed from there and put down at a distance of about one foot above the ground and at a distance of 6 inches from the wall of the plaintiff on the defendant's side;
(b) white-wash earlier undertaken by the defendants had been completed;
(c) the generator was 4 feet away from the boundary wall;
(d) some cracks were seen on the boundary wall from the plaintiff's side but the contention of the plaintiff that the said racks had arisen in view of the C-.N.G. Equipment was not true. The cracks were all around the boundary wall on the plaintiff's house due to old construction;
(e) the attorney of. The plaintiff had contended that there should be maintained the compulsory open space between the installation/ construction raised by the defendants and the boundary wall and that the noise of the generator could not be lowered down except upon removal of the C.N.G. Facility from the petrol pump.
10. Mr. Muneer Butto, the learned counsel for the plaintiff, has extensively read over the pleadings and affidavits filed by the parties. In. Sum and substance the learned counsel for the plaintiff has contended that the installation of the C.N.G. Facilities at the suit property has not only created a safety hazard but the same also constitutes nuisance as the noise of the generator has impaired the quality of life enjoyed by the plaintiff. In the end the learned counsel submitted that he would be satisfied if the placement of the generator could be shifted to the other side on the suit property.
11. Miss Pooja Kalpana, the learned counsel for the defendants, has vehemently contested the application and the arguments advanced by the learned counsel for the plaintiff. She has submitted as follows
(a) the plaintiff has not come to the Court with clean hands since the plaintiff's house is not inhabited. The plaintiff's house is very old comprising "Makhdoosh" old construction and the plaintiff not residing therein;
(b) also the plaintiffs premises at present are not kept of or not being inhabited.
(c) in terms of the order of the Court dated 23-1-2006 the defendants have shown a good gesture by altering the placement of the C.N.G. Gas pipeline and carrying out white-wash over the objected parts of the plaintiff's house;
(d) the petrol pump has been operational on the suit property for the last 5 decades without any objection from the plaintiff or from any other corner;
(e) the suit property is in the heart of a commercial area in main Saddar which is one of the busiest road in Karachi. It has already surrounded a large number of commercial buildings;
(f) the traffic noise level in the vicinity is much higher than the noise of any petrol pump/C.N.G.
Equipment or the generator;
(g) the plaintiff cannot be allowed to pick and choose;
(h) the generator is only operational when there is an electricity breakdown. And in case, though the plaintiff is not living in the premises, if at all there is breakdown of electricity the plaintiff or any other person who were to live in future at the plot of the plaintiff is also likely to employ the services of a generator. l2. Miss Pooja has placed emphatic reliance on the following judgments :~
(i) Shaikh Muhammad Anwar v. Shaikh Muhammad Iqbal 1984 CLC 103
(ii) Nasec Ahmed v. Hafiz Muhammad Ahmed 1984 CLC 340
(iii) Fazal Din v. Mst. Robeena Aurangzeb 1983 CLC 1280
(iv) Mashkoor Khan v. Province of Sindh 1971 SCM R 572
(v) A. Razzak Adamjee v. Messrs Datari Construction Co. Ltd. 2005 SCM R 142
(vi) Abdul Rashid v. Mahmood Ali Khan 1994 SCM R 2163
(vii) Syed Hussain Ali v. Ahmed Bux 1992 M LD 2000 (viii)Abdul Razzak Adamjee v. Director General, KDA 1995 M LD 803
(ix) Mst. Seema v. Messrs Millennium Developers 2003 CLC 632
(x) Fazlur Rehman v. Younas Ali Gilani 1999 M LD 1565
(xi) Muhammad Yaqoob v. Health Officer Municipal Committee, Hyderabad 1973 SCM R 184
(xii) Multiline Associate v. Ardeshir Cowasjee PLD 1995 SC 423 (xiii)Amin v. Navaid Hussain 2008 SCM R 133
13. In rebuttal Mr. Muneer Bhutto, the learned counsel for the plaintiff, has contended that the generator installed by the defendants is industrial in nature and cannot be compared to the generator of a residential house. He has further stated that although the Inverarity Road is a commercial, the Dawood. Pota Road upon which the house of the plaintiff is situated is not a commercial road.
14. I have heard the arguments of parties, perused the record and the law on the subject.
15. The contentions of the defendants to. The effect that the house of the plaintiff is uninhabitable, no one actually resides therein and that the entire building/house of the plaintiff is in a dilapidated state, have not been denied by the plaintiff's counsel at the time of the arguments. This fact gets confirmation from the report of the Nazir, referred above. The plaintiff has not even filed any objections to the Nazir's report. The plaintiff in para 1 of the plaint has very conveniently stated to be in "legal possession" of the property without specifying that no one actually resides in the said premises or that the premises are not capable of being inhabited. This being so, the plaintiff is the guilty of suppressing the material facts which disentitles her to the temporary injunction prayed by her. Reliance in this regard is placed on Irshad Hussain v. Province of Punjab PLD 2003 SC 344, wherein it was observed by the apex Court that while granting temporary injunction the conduct and behaviour has to be kept ln mind. If admittedly no one is residing in the house claimed by the plaintiff, one fails to understand as to what nuisance is being complained of.
16. The Nazir's report confirms that the suit property is in the heart of Saddar, Karachi, which is the busiest area in the city, where the traffic noise is much more than the noise of any generator or C.N.G. Facility. Again these observations have not been denied by the plaintiff. Interestingly, the Nazir while giving his report has measured the noise level in decibels, using a sound level meter, which records the reading of noise/sound. Admittedly, for more than 5 decades a petrol pump has already been functioning at the site, without any objection from the plaintiff or anyone else. If the plaintiff has conceded to a petrol pump in its adjoining neighbourhood, one fails to understand as to what possible objection she can have in the functioning of a C.N.G. Station,, especially in an area where the traffic noise far exceeds the sound of any generator of petrol/C.N.G. Facility.
17. As already stated above, the plaintiff has pitched his case upon the actionable nuisance. In this regard Abdul Rashid v. Mahmood Ali Khan 1994 SCM R 2163 may be referred. In this case it has been held that "nuisance" is not capable of an exact definition. It is depended upon the facts, circumstances and acts which are committed or omitted by any person on his own land or that on others, creating an offending effect, inconvenience, difficulty or damage to the neighbours. It was further observed that the determination of any act as nuisance depends upon a variety of reasons and considerations. An act may be a nuisance in a particular locality but not in the other; it may be nuisance at a particular time but not at another time. "One has to reach such a conclusion by balancing the conflicting rights and taking into consideration the facts and circumstances of each case and not merely by an abstract consideration of the act itself." A very useful test was employed by the apex Court in this case when it was observed that "nuisance" is to be judged from the standard of a normal, average and sober man; in the present days advancement in technology, commercialization and industrialization activities one has to take into consideration such facts while determining the existence of nuisance. Very importantly, it was observed by the Honourable Supreme Court that a business which might be perfectly proper in a business or manufacturing neighbourhood may be nuisance when carried on in a residential area, and conversely the same business may not be considered a nuisance when conducted in any business or manufacturing locality. In particular, I may quote here an excerpt from the referred judgment of the Supreme Court, which reads as follows:- "While determining the question of existence of nuisance, it is to be considered whether the person is using his property in a manner which is reasonable in the circumstances of the case and whether such reasonable use which may offend a neighbour or interfere with his enjoyment, can be termed as a nuisance."
'(see page 2173 H of the referred law report)
' In the precedented case from the Supreme Court the landlord's wife was said to be sick due to which the running of the press by the tenant was termed to be nuisance. The argument was declined on grounds that the locality in question in that case was flooded with workshops, machineries and floor mills. The stance taken by the landlord on the touch-stone of nuisance and vibration caused by the printing press was rejected.
18. The judgment of Abdul Rashid (cited above) from the Honourable Supreme Court succinctly lays down the law of nuisance in Pakistan. In the U.S.A, the position is hardly different, which can conveniently be seen from the following experts from the Corpus Juris Secundum:-
(a) Corpus Juris Secundum Vol. LXVI at page 875: "In determining whether equitable relief will be granted against an alleged nuisance, the general character of the neighbourhood and whether immediate locality is devoted to business, commercial, of industrial purposes or is residential, may be considered. The general character of the neighborhood, including the changes which have occurred since . Plaintiff acquired title to his property, and whether the immediate locality is devoted to business, commercial, or industrial purposes or is a residential section, or is residential or urban, as distinguished from open country, may be taken into consideration in determining whether equity will interfere and grant the relief sought against an alleged nuisance; the Court looks at the surrounding property and considers its actual use."
(b) Corpus Juris Secundum Vol. LXVI at page 772: "It has been stated that no one is entitled to absolute quiet in the enjoyment of his property, but is limited to a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells, thus it has been held that as many useful acts are necessarily attended with more or less noise, reasonable noises in an appropriate locality are not necessarily nuisance even though they are disagreeable and annoying."
(c) Corpus Juris Secundum Vol. LXVI at page 774:- "A nuisance of noise should be considered in connection with the locality."
19. In the United Kingdom the test with regards actionable nuisance is also in conformity with the legal predicament prevalent in Pakistan and U.S.A., as discussed above. In the leading case of St.
Helen's Smelting Co. v. Tipping (1865) 11 HLC 642 (available in "Case book on Tort" by Weir, 6th edition, at p.368) the plaintiff acquired an estate in a manufacturing area. Among the works situated nearby were those of a Cooper smelting, company. The vapours emanating from these works proved injurious to the trees on the plaintiff's estate. In the House of Lords, Lord Westbury L.C.
Drew a distinction between nuisances producing material injury to property and nuisances causing sensible personal discomfort. In assessing whether the latter can constitute an actionable nuisance it was held to be necessary to take into account the nature of the locality. If a man lives in a town, it is necessary that he should subject himself to the consequence of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property and for the benefit of the inhabitants of the town and of the public at large Inevitably, therefore interference which may be permissible in one area may not be permissible in another." In Sturges v. Bridgman (1879) 11 Ch. D. 852 at 865 Thesiger LJ was pleased to hold that "what would be nuisance in Belgrave Square would not necessarily be so in Bermondsey. "
(NB: The above position of the UK law has been taken from Winfield & Jolowicz on Tort, Thirteenth Edition, by W.V.H. Rogers)
20. The Indian law also seems to have taken a course similar to the one in Pakistan, U.S.A, and UK. In Rafat Ali v. Sugni Bai AIR 1999 SC 283 no relief was granted from the standpoint of nuisance, since the act complained of was found to be reasonable. In this case that act complained of was the use of lathe machines. Earlier, in Bhanwar Lai v. Dhanraj AIR 1973 Raj. 213 it was observed that "reasonableness" is the real test of determining whether nuisance can be actionable. In this regard it would be convenient to reproduce the relevant excerpt from the Bhanwar Lai case which reads as follows "The forms of this (nuisance) are innumerable. But whatever be the type, it does not follow that any harm constitutes a nuisance. The whole law on the subject really represents a balancing of conflicting interests. In fact the law repeatedly recognizes that a man may use his own land so as to injure another without committing a nuisance. It is only if such use is unreasonable that it becomes unlawful. Reasonableness play an important part in determining whether or not there has been a nuisance."
(see pages 216 and 217 of the law report)
21. Having considered the case law from various jurisdictions, it is rather clear that for an act to become an actionable nuisance it must satisfy the test of reasonableness. In the suit property, which is at the heart of the city in Saddar, being one of the busiest area of the city, a petrol pump site, situated at the cross roads of two major arteries, is reasonably expected to be equipped with C.N.G. Facilities with a generator of industrial capacity to be used in events of electricity break downs.
'Coupled with this it is an admitted position that the traffic sound is much higher than the sound of any generator or C.N.G. Facilities, which position has not been disputed by the plaintiff. This being so, no case for injunction is made out by the plaintiff.
22. As regards the mild objection of the plaintiff with regards the safety hazards of a C.N.G. Facility, it is needless to stress that the defendants are expected to comply with all the codal formalities and procedures prescribed ' by the competent authorities in this regard. In any event it is not the case of the plaintiff that such codal formalities/procedttre have not been complied by the defendants. The defendants have filed the necessary approvals from the OGRA and other authorities.
23. A It is also an admitted state of affairs that the direction of the chimney of the generator has been shifted/altered so that the chimney's smoke does not directly hit any construction of the plaintiff's property. With regards the rights found against nuisance, so also easementary rights, the judgment of this Court reported is Seema v. Millennium Developers 2003 CLC 632 is very relevant, in which it has been held that where the establishment of such rights require evidence, no temporary injunction can be granted to the plaintiff. Temporary injunction was thus declined in that case. In A.
Razzak Adamjee v. Datari Construction Company (Pvt) Ltd. 2005 SCM R 142 it was observed that the existence of nuisance occurring or apprehended is a pure question of fact, which is cases of permanent injunction of damages, is bound to be proved through evidence. In Mashkoor Mian v.
Province of Sindh 1971 SCM R 572 it has been held that even where the establishment of a prim reiterated the contents of the affidavit.
24. I am of the considered opinion that no prima facie case has been made out by the plaintiff, in view whereof this application is dismissed, however, in the circumstances of the case there will be no order as to costs.
'C.M.A, No,7180 of 2005:
25. This is an application moved by the plaintiff for contempt/breach of injunction under Order XXXIX, rule 2(3) of the C.P.C, read with sections 3 and 4 of the Contempt of Court Ordinance, 2003.
The plaintiff has alleged that the defendants has disobeyed the order of status quo recorded on 29-7-2005, which was extended on 10- 8-2005 and 1-9-2005. It is alleged by the plaintiff that despite the order of status quo passed on 29-7-2005 the defendants commenced the C.N.G. Service on 6-9- 2005. Attached with the applications are photographs of the petrol pump serving its customers.
26. In response the defendants have contended that the plaintiff has misled this Court since on 29- 7-2005 no order of status quo was passed. It is further sated that on 29-7-2005 the Court only restrained the defendants from "raising or making" any construction at the premises. It is also contended by the defendants that on 29-7-2005 except for fixation of certain tiles and one facia "Caltex Oil" on the canopy, the entire construction work had been completed. However, upon passing of the order dated 29-7-2005, the facia and the tiles in question were not fixed, although the same did not constitute "construction" within the meaning of the order dated 29-7-2005. It is denied by the defendants
27. Having gone through the application and affidavit filed by the parties it is rather clear that on 29-7-2005 the Court did not pass an order of status quo, but rather an order directing the defendants not to raise or carry out any further construction. There is nothing in the application/affidavit, affidavit rejoinder or the photographs filed in support thereof, from where it could be inferred that the defendants carried out any construction after the order of status quo passed on 29-7-2005. It may be observed that by mentioning in the contempt application the fact that the Court had passed an order of status quo on 29-7-2005 the plaintiff has been economical in spelling out the correct state of affairs..
28. In light of the above no case for contempt or breach of injunction is made out by the plaintiff, hence the application is dismissed with no order as to cots.