' MUNIB AKHTAR, J.---Three applications fall for determination, two filed by the plaintiff and one by the defendant No.
2. By C.M.A. 12456 of 2012 the plaintiff seeks interim injunctive relief. On this application certain interim orders were made on 5-12-2012. Civil Miscellaneous Application No. 10465 of 2013 has also been filed by the plaintiff and by this application the appointment of a receiver is sought. The third application Civil Miscellaneous Application No.11154 of 2013 has been filed by the defendant No. 2, inter alia seeking recall and vacation of the interim orders made on 5-12-2012. These applications arise in the following circumstances.
2. Learned counsel for the plaintiff drew attention to the fact that earlier, the defendant No. 2 had filed an application seeking rejection of the plaint, which had come up before me, and which I had dismissed by order dated 24-12-2012. That order ("Earlier Order") appears to have attained finality and it will be convenient to reproduce para 2 thereof, where the basic facts of the dispute are set out:-- "2. Both the plaintiff and the defendant No. [2] are manufacturing concerns, which have their respective facilities on plots taken under leasehold rights from the defendant No. 1, SITE. The plots of the plaintiff (Plot No. S-30) and the defendant No. 2 (Plot No. S-31) are next to each other but not adjoining. According to the site plan filed by the plaintiff (and this is undisputed), the plots are separated by a several feet wide piece of land through which runs (or was supposed to run or once ran) a railway line. The grievance of the plaintiff is that the defendant No. 2 has now started to install a boiler on the land that lies between the two plots but towards and close to the side of the plaintiff's plot, i.e., across the designated railway line and away from its own plot. The plaintiff contends that it manufactures poly-utherene and petrochemical products for which it needs to use and store on its premises various chemical materials and compounds that are highly inflammable and hazardous. The averment is that the location of the boiler (inasmuch as it is being installed by the defendant No. 2 so close to the plaintiff's plot) is exceedingly dangerous and could result in a calamitous mishap should anything go wrong with the boiler. Suitable declaratory and injunctive relief has been sought, and along with the suit an application for interim relief was also made (C.M.A. 12457 of 2012). I had, after notice, made an interim order on this application, restraining the defendant No. 2 from starting the boiler. That application (the "stay application") is still pending a final hearing."
3. Learned counsel submitted that the installation of a boiler by the defendant No. 2 on the plot adjoining that of the plaintiff, and close to the boundary wall between the two plots was contrary to law. Learned counsel placed primary reliance on the well known rule established in Rylands v.
Fletcher (1868) LR 3HL 330, [1868] UKHL 1. I had noted in the Earlier Order as follows (see para 4 thereof):-- "[The rule in Rylands v. Fletcher is] that "the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape". It is irrelevant that the act of the defendant is lawful in and of itself. The grievance of the plaintiff (as claimed by it) is that the defendant No. 2 has brought and placed close to the plaintiff's land something of precisely such a nature, i.e., the boiler and it is contended that it is no answer to the plaintiffs claim that the installation or operation of the boiler would be lawful in and of itself if the defendant No. 2 complied with the statutory provisions noted above. In my view, the defendant No.2's grievance can, at best, be that the present suit is in the nature of a quia timet action."
' The "statutory provisions" referred to in the above extract are the Boilers and Pressure Vessels Ordinance, 2002 ("2002 Ordinance") and the rules framed in terms thereof, being the Pakistan Boiler Rules, 2009 ("Rules").
4. Learned counsel drew attention to what was submitted to have been the position of the boiler at the time of the institution of the Suit, and in particular relied on certain photographs annexed to the plaint. This, it was submitted, clearly showed that the construction/erection of the boiler was still at an early stage. It was submitted that at that time, a legal notice had been served on the defendant No. 2 on or about 16-11-2012. Attention had been drawn, in particular to the fact that a fire had earlier erupted in another adjoining plot, in which another company carried on business, which fire had engulfed the entire factory and destroyed it. Learned counsel submitted that despite this notice, the defendant No. 2 did not stop installation of the boiler, which led to the filing of the present suit. It was submitted that the defendant No. 2 had not obtained the necessary permissions under the 2002 Ordinance, and reference was made in particular to section 7. Learned counsel submitted in this context that neither in the reply to the plaintiffs legal notice as above nor along 'with the Written Statement filed in the suit had the defendant No. 2 annexed any documentation to show that the necessary permissions and approvals (which, it was submitted, were several) had been obtained. Thus, the entire installation process was in violation of law. However, learned counsel emphasized that even if all the permissions had been obtained, the boiler being installed would still constitute a nuisance within the meaning of rule in Rylands v. Fletcher and the plaintiff was entitled to relief accordingly. Learned counsel also submitted that the land on which the boiler was being erected was leased from the defendant No. 1 (SITE), and the lease deed had been placed on the record. Learned counsel submitted that the installation of the boiler on the plot was in violation of the lease deed, and referred in particular to sub-clauses (3), (4), (9), (10) and (12) of clause 2 thereof. Learned counsel also referred to two Nazir's reports, dated 30-5-2013 and 2-10- 2013, to submit that these showed that the defendant No. 2 had been carrying on with the installation and erection of the boiler despite the interim orders prohibiting it from doing so.
Learned counsel also submitted that smoke and other pollution from the boiler would seriously disturb and disrupt the plaintiff's business, causing it irreparable loss and injury. The defendant's proposed boiler was not yet in use and only at installation stage, and hence the balance of convenience lay in favour of the plaintiff. All the ingredients for interim relief were in place. Finally, learned counsel placed strong reliance on a judgment of the Lahore High Court reported as Amanullah Khan and others v. Khurshid Ahmed PLD 1963 Lahore 566 (SB), his submission being that the present case was essentially indistinguishable from the reported decision. It was prayed that the plaintiff had made out a case for interim relief or the appointment of a receiver for the boiler, as the Court deemed appropriate in the circumstances.
5. Learned counsel for the defendant No. 2 strongly controverted the plaintiff's case. Learned counsel submitted that the plaintiff had come to Court with unclean hands and was not entitled to any equitable relief. Reference was made to the lease deed for the plaintiff's own plot, annexed to the plaint, to submit that on the same basis as alleged against the defendant No. 2, the plaintiff would also not be entitled to operate a boiler at its premises. Learned counsel submitted that the boiler in question would be installed and used strictly in accordance with law. The defendant No. 2 was entitled to put its land to such use as was permissible under law, and the installation of the boiler clearly and obviously fell in this category. It was submitted that the said defendant already had two boilers installed, and the proposed third boiler would be used to operate a turbine to generate power for use at the defendant's factory. Referring to the Nazir's reports, learned counsel submitted that it was clear from the same that the plaintiff's boiler was also installed close to the boundary wall. Therefore, if at all there was any risk or danger from the location and use of the defendant's boiler (which was strongly denied) the same could be said of the plaintiff's boiler. The plaintiff could not deny the defendant No. 2 a use of its land that was in all material respects the same as that to which the plaintiff itself was putting its own plot. It was denied that the boiler would in any manner constitute any nuisance for the plaintiff. Learned counsel submitted that the area in question was an industrial zone and the question of nuisance had to be determined accordingly.
The factories in the SITE area had boilers installed and in use and the boiler being installed by the defendant No.2 was no different. Learned counsel submitted that the plaintiff had patently failed to make out any case whatsoever for any relief and both its application merited dismissal, with the result that the interim orders made earlier ought to be recalled and vacated. Learned counsel for the plaintiff exercised his right of reply.
6. I have heard learned counsel as above, examined the record and considered the case-law relied upon. As noted above, the primary case sought to be made out by the plaintiff is on the basis of the rule in Rylands v. Fletcher. I have also noted that the plaintiff's suit is in the nature of a quia timet action inasmuch as the boiler is being installed and is not yet operational. Thus, the damage and injury being alleged is, at this time, only apprehended (or, at most, can be regarded as threatened). A In a recent decision, London Borough of Islington v. Margaret Elliott [2012] EWCA Civ 56, the jurisdiction of the Court "to grant injunctive relief on a quia timet basis when that is necessary in order to prevent a threatened or apprehended act of nuisance" was re-affirmed (at [29]). As to the basis on which such relief would be granted, the Court of Appeal referred to the "much quoted formulation of principle" in Fletcher v. Bealey (1884) 28 Ch.D 688, 698 (emphasis supplied):-- "... It is not correct to say, as a strict proposition of law, that, if the plaintiff has not sustained, or cannot prove that he has sustained, substantial damage, this Court will give no relief; because, of course, if it could be proved that the plaintiff was certainly about to sustain very substantial damage by what the defendant was doing, and there was no doubt about it, this Court would at, once stop the defendant, and would not wait until the substantial damage had been sustained. But in nuisance of this particular kind, it is known by experience that unless substantial damage has actually been sustained, it is impossible to be certain that substantial damage ever will be sustained, and, therefore, with reference to this particular description of nuisance, it becomes practically correct to lay down the principle, that, unless substantial damage is proved to have been sustained, this Court will not interfere. I do not think, therefore, that I shall be very far wrong if I lay it down that there are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shewn that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action." (per Pearson, J.)
' Reference may also be made to certain other authorities. In Attorney General v. Corporation of Manchester [1893] 2 Ch 87 it was observed as follows (emphasis supplied):- "The principle which I think may properly and safely be extracted from the quia timet authorities is that the plaintiff must show a strong case of probability that the apprehended mischief will in fact arise." (per Chitty, J., at pg. 92)
' In Graigola Merthyr Company Limited v. Mayor Aldermen and Burgesses of Swansea [1928] 1 Ch 235 it was observed as under:-- "A quia timet action is not based upon hypothetical facts for the decision of an abstract question.
When the court has before it evidence sufficient to establish that an injury will be done if there is no intervention, by the court - it will act at once, and protect the rights of the party who is in fear, and thus supply the need of what has been termed protective justice. It is a very old principle . " (pg.
241)
' Finally, in Hooper v. Rogers [1975] 1 Ch 43, it was observed as follows (emphasis supplied):- "Again it seems to me that 'imminent' is used in the sense that the circumstances must be such that the remedy sought is not mature; ... In different cases differing phrases have been used in describing circumstances in which mandatory injunctions and quia timet injunctions will be granted. In truth it seems to me that the degree of probability of future injury is not an absolute standard: What is to be aimed at is justice between the parties, having regard to all the relevant circumstances." (per Russell, LJ, pg. 50)
7. When the foregoing principles are applied to the facts and circumstances of the present case, I am of the view that the plaintiff has been unable to make out a case for quia timet relief. The plaintiff has been unable to show that there is "imminent danger" (see Fletcher v. Bealey) to its operations if the boiler is allowed to become operational, especially when the meaning to be ascribed to "imminent", as explained in Hooper v. Rogers, is kept in mind. There is nothing on the record to show that there is a strong probability that the apprehended mischief will, in fact, arise.
There is also the matter of doing justice between the parties, having regard to all the circumstances. The defendant No. 2 has presented a reasonable and plausible need for installing and operating the boiler. The plaintiff on the other hand is operating on probabilities and possibilities, which cannot be said to be imminent or immediate. While I will not go so far as to say that the plaintiff has presented "hypothetical facts for the decision of an abstract question", the concreteness of its grievance is nonetheless far from established. Furthermore, it must be kept in mind that the plaintiff is after all, admittedly also operating a boiler. Indeed, there appears to be hardly any doubt that there are a number of boilers operating in the various factories and plants in the SITE area; boilers appear to be a necessary part of the plant and machinery for many industries. If the case sought to be made out by the plaintiff is accepted, then many and perhaps most boilers in the area may have to be shut down. This can hardly be regarded as a viable state of affairs. I therefore conclude that the defendant No. 2 cannot be enjoined in terms as prayed or a received appointed in respect of the boiler on a quia timet basis, and turn to consider the other grounds urged by learned counsel for the grant of interim relief.
8. Before doing so, however, one point may be made. Since I have concluded that the plaintiff has been unable to make out a case for relief on a quia timet basis, it is not necessary for me to consider whether the plaintiff's case would come within the scope of the rule in Rylands v. Fleaher. I do note however, that this rule has been abolished in Australia in Burnie Port Authority v. General Jones Ply Ltd., (1994) 179 CLR 520, [1994] HCA 13, where it appears to have been subsumed within the general law of negligence. In England itself, the rule was reconsidered by the House of Lords in Transco plc v. Stockport Metropolitan Borough Council [2003] UKHL 61, [2004] 1 All ER 589. While their Lordships declined an invitation to abolish the rule as had been done by the High Court of Australia, it was restated and it is generally regarded that its scope has been considerably narrowed and limited. Thus, Lord Bingham observed as follows (at [10]):-- "I do not think the mischief or danger test should be at all easily satisfied. It must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be."
' Lord Hoffman, after a detailed examination of the authorities, also referred to "the very limited circumstances to which the rule has been confined" (at [39]) and in concluding his analysis characteristically observed: "It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse" (ibid). As to what should be the position in Pakistan today with regard to the rule is an issue I leave open to be decided in an appropriate case.
9. Learned counsel submitted that the operation of the boiler would be in violation of the terms of the lease deed. The provisions from the deed cited in this, regard have been noted above. Firstly, it is to be noted that if at all the defendant No. 2 is acting in violation of the lease that surely is a matter for the lessor to take up, i.e., SITE. It does not appear however, to have any grievance in this regard. Secondly, when the plaintiff's lease deed is compared with that of the answering defendant's the two are found to be substantially the same. Therefore, if the defendant No. 2 cannot operate a boiler on its land, then the same would prima facie apply to the plaintiff.
Obviously, this is not the case sought to be made by the latter. Thirdly, when the various sub- clauses of clause 2 being relied upon are considered, they hardly seem to advance the plaintiff's case, save perhaps for sub-clauses (9) and (10). The former provides that the lessee shall not use the demised land "for any offensive, noisy or dangerous trade, business, manufacture or occupation or for any purpose or in any manner which may be a nuisance to the Lessor or the owner or occupier of adjacent or other premises upon the Lessor's Trading Estate...." Exactly the same provision, is to be found in the plaintiff's lease deed. Therefore, the latter's boiler would be as likely to be shut down as that of the answering defendant's. The same position applies in relation to sub-clause (10). In my view, it cannot lie with the plaintiff to make a grievance out of the defendant No. 2's proposed boiler while claiming the right to continue operating its own. The reliance placed on the lease deed provisions is therefore of no avail.
10. Insofar as the provisions of the 2002 Ordinance are concerned, the defendant No. 2 has stated that the boiler will be operated strictly in accordance with law and after obtaining the requisite permissions and approvals. I have seen the provisions of the 2002 Ordinance and the Rules. There appears to be in place an elaborate framework for ensuring that boilers are properly constructed, installed, made operational and used. If at all at any stage it is shown that there has been any failure to obtain any necessary permission or approval, then of course suitable action can be taken accordingly, both in terms of the aforementioned statutory provisions and perhaps even otherwise.
However, to simply hold at this stage that the law will be violated may be jumping to a conclusion that may never come about, on a basis that prima facie appears to be unwarranted.
11. Lastly, I turn to consider the decision of the Lahore High Court so strongly relied upon by learned counsel for the plaintiff, Amanullah Khan and others v. Khurshid Ahmed PLD 1963 Lahore 566 (SB).
The matter came to the High Court by way of a revision petition. The facts were that the respondent before the High Court had mango gardens and had filed a suit in the civil courts seeking to enjoin certain defendants from constructing and 'installing a brick-kiln on nearby land on the ground that the smoke and poisonous vapours from the same would damage and injure the mango gardens. An interim injunction was granted. The defendants resisted the suit on the ground that they had not installed any brick-kiln as alleged, whereupon the petitioners before the High Court were impleaded as defendants. They sought a vacation of the interim orders on various grounds including that the brick-kiln was in fact in operation and running and that the defendants had the necessary permission (by way of a licence) for its operation. The interim orders were recalled. The plaintiff-respondent thereupon amended the plaint, seeking to restrain the defendants-petitioners from constructing, installing and working the brick-kiln. Another application for interim injunctive relief was filed, and it was averred therein that the licence earlier issued had not been renewed and that there was expert opinion to the effect that the operation of the brick- kiln would adversely affect the mango trees, reliance being placed on a letter issued by the Director of Agriculture, Central Zone and an order made by the District Magistrate concerned under section 144, Cr.P.C. To the effect that no brick-kiln be constructed or operated within one mile of any fruit orchard. The fresh application for interim relief was allowed, and an appeal by the defendants-petitioners before the Additional District Judge failed. The defendants-petitioners then filed the revision petition decided by the High Court. As presently relevant, it was observed by the High Court (see pp.572 et. Seq.) that the suit as initially filed had only been for a permanent injunction seeking to restrain the then defendants from installing and constructing a brick-kiln, whereas subsequently it was amended to enjoin the operation of the brick-kiln that was already functional. It was also observed that the licence needed for the continued operation of the brick- kiln had expired and had admittedly not been renewed. It was held that in such circumstances, since the petitioners had no right to continue operating the brick-kiln, the injunction did not cause any legitimate loss to them. On the other hand, relying on the opinion expressed by the Director of Agriculture, it was held that the plaintiff-respondent would suffer loss and injury to his orchards, especially the mango trees. The other objection taken by the defendants-petitioners that they could not be enjoined from carrying on a lawful trade on their own land was rejected on the ground that the alleged nuisance did result in material injury to the plaintiff-respondent's property since the latter's case was that the fumes and smoke discharged from the brick-kiln damaged his orchards and trees and that the injury was of a continuous nature. The High Court referred to certain cases and relied in particular on Crump v. Lambert (1867) L.R. 3 Eq.
409. Finally, the ground taken by the defendants-petitioners that there were other brick-kilns also operating in the area was rejected on the ground that their brick-kiln was nearest to the plaintiff- respondent's gardens. The revision was accordingly dismissed.
12. I have carefully considered the cited case. The first point to note is that it was not a quia timet action by the time the matter came to the High Court, although it had perhaps started out on such basis. The brick-kiln was actually in operation and not merely under construction and installation.
This in my view, is the most basic difference between the case at hand and cited decision and, with respect, makes all the difference. The difference is fully brought out by the cases cited herein above (see para 6) from which it is clear that the approach to be taken in a quia timer action is rather different from one where the nuisance is actually complete. Secondly, it is clear that the High Court gave importance to the expert opinion given by the Director of Agriculture as to the damage and injury being suffered by the plaintiff orchards and mango trees. There is of course, no such or equivalent material on the record in the present case. Thirdly, the defendants in operating the brick-kiln were found clearly to be committing an illegality inasmuch as the licence to operate the brick-kiln had expired and had not been renewed. Again, the situation at hand is different. Here, there is a mere apprehension, without any cogent basis, that the boiler will be installed and put in operation without the necessary permissions or approvals under the 2002 Ordinance, or that such permissions, etc. Will be refused if applied for. In my view, the foregoing are material differences that distinguish the facts and circumstance of the present case from those that were clearly regarded as being of importance in the cited decision. No doubt there are certain similarities. For example, the boiler being installed by the defendant No. 2 would appear to be closest in proximity to the plaintiff's factory. In my view, those apparent similarities cannot detract from the much more material differences between the two cases. In my view, and with respect, the overly strong reliance sought to be placed on the cited decision is somewhat misplaced.
13. Insofar as the defendant No. 2's application C.M.A. 11154 of 2013 is concerned, that seeks, as noted above, a recall of the interim orders made on 5-12-2012. In addition, the application also seeks an order that the plaintiff be directed to deposit a sum of Rs.20 million "as compensation against the losses caused due to operation of stay order with further deposit of sum @) Rs.5 lacs per day [with effect from] next date of hearing till the stay application is disposed of", and for the release of this amount to the defendant should the application for interim relief be dismissed. In my view, no such order of deposit/release ought to be made. If at all the defendant No. 2 has suffered any losses, it must establish the same at the trial of the suit, and subject also to the defendant satisfying the Court that its claim comes within some exception to the general rule that no damages can be claimed on account of any loss said to have been sustained by reason of a Court order. Certainly, no such order of deposit/release as is being sought can be made in the present facts and circumstances and on essentially an interim basis.
14. In view of the foregoing, I conclude that in the present facts and circumstances, and the material as currently available on the record, the plaintiff has failed to make out a case for either interim injunctive relief or the appointment of a receiver for the boiler on a quia timet basis.
Accordingly, the plaintiffs applications C.M.A. 12456 of 2012 and Civil Miscellaneous Application No.10465 of 2013 must fail and are hereby dismissed. The interim orders made earlier stand recalled and vacated. In the circumstances, the defendant No.2's application has become infructuous insofar as the recall of interim orders is concerned, and must be dismissed insofar as the prayer for deposit/release of the amounts as therein claimed. Is concerned. Civil Miscellaneous Application No.11154 of 2013 stands disposed of accordingly.