1. 'These are two successive applications filed by the plaintiffs under Order 39, Rules I and 2, C.P.C.
2. Seeking interim injunction touching the use of the disputed property, which is alleged to be situated in a residential locality in Muhammad Ali Memorial Cooperative Housing Society Limited, as a school. Ad interim orders of status quo were issued by a learned Judge of this Court on 9-7-1992 and have remained in force todate.
3. ' On facts, plaintiffs say that they are owners/residents, for the past more than 25 years. Of essentially residential plots in the Muhammad Ali Society and that their rights of peaceful enjoyment of property are under imminent threat of invasion and infringement on account of the proposed setting up of the Foundation Public School in their vicinity at Bungalow No,23-A, Muhammad Ali Housing Society, by the defendant No,1, who is the principal of such school The rights urged are protection against nuisance in the way of traffic congestion, pollution through emission of smoke, noise inter alia generated on the school premises itself such as originating from ringing of bells, admitted running of a canteen and expected playfulness of children in open spaces before and after school and during intervals and vacant periods etc. And that issuing from the vehicles and hawkers, the last of whom would inevitably come to frequent the locality, besides security hazards, posed by undesirable elements, who are routinely attracted to such places. On the score of apprehended nuisance loss of value in property is also pleaded, urging that the locality is a prime residential area, which people would. Start shunning on the opening-up of a school in such close vicinity, the plaintiff No,2 admittedly being separated by a mere boundary wall from the disputed property, the plaintiff N.o.1 being on the plot opposite to that of the plaintiff No,2 and abutting to the plaintiff No,4 on the one side and the plaintiff No,3 on the other, the plaintiff No,3 being another corner plot-holder opposite the property in question separated by a 40 feet wide street and enjoying the common main Fatima Jinnah Road with the disputed property (See plan attached with the Written Statement)'. Easementary and other rights are claimed in the way of light, fresh air free of pollutants, peaceful and noiseless enjoyment of property, privacy from the use of a structure which apparently, at least, is partly a double storeyed one and where over three.
4. Hundred students from classes 7 to 11 are projected, as recipients of daily instructions. All the foregoing are also claimed to be transgressions of the lessees' convent to exclusive residential use of the Leaseholds. The second application for interim relief has emerged because, according to the defendant No,1, -before the issuance of ad interim status quo summer and remedial classes were started in June, 1992, the school itself proposed to regularly commence on August 12, 1992, necessitating a prayer of grant of mandatory injunction, which is sought in such second application.
5. ' In defence, it is contended that the summer and remedial classes having already begun before the grant of ad interim order of status quo there remains nothing for the restraint to operate upon.
6. Next, it is urged that the pleas as regards nuisance, easementary rights etc. Are devoid of specifics and cannot be enforced. The suit on the ground of nuisance is claimed to be barred under section 91 of the Code of Civil Procedure, maintaining that the nuisance, if any, is a public nuisance, requiring consent in writing of the Advocate-General- before the suit could he filed. As to the residential character of the property it is pointed out that in the vicinity several commercial institutions have long since been in operation spelling-out acquiesence and changing the .
7. Character of the neighbourhood. At any event, it is contended that the right of action, if any, to enforce the residential use of the property in dispute and of those in the area vests in the President of Pakistan, the common lessor, conveying no rights whatever to the other plot-holders. As to facts, it is urged that no nuisance, as. Recognized by law, has emerged or is likely to emerge and no easementary rights have been violated nor is there any prospect of such violation in future.
8. In order to determine whether or not a prima facie case exists for grant or confirmation of the temporary injunction it is necessary to highlight first the essential facts and then make reference to the state at law on the subject. Needless to add that prima facie case, as understood at law, does not imply an indefeasible case. It signifies only an arguable matter, involving serious or substantial questions of fact and law, which on proceeding to trial is capable of and has a possibility of success. See Muhammad Aref Effendi v. Egypt AIR, 1980 SCM R 588 and Muhammad Matin v. Mrs. Dino Manckji Chinoy, PLD 1983 Kar.
9. 387.
10. ' It is an admitted position that the property in dispute and those abutting it are situated in a residential area within the precincts of a housing society. Initially sub-licences were granted by the society to the allottees which subsequently, on completion of structures, matured into registered leases. The Housing Society, it remains undisputed, is entitled to Development Charges, operates under, specific rules and has the overall superintendence of the area administered by it. Under clause 4 of the Common Leases a lessee is required to comply with and observe all the Rules of the Authority or the local authority incharge of the area. The President of Pakistan is the granter of land first to the society and then individually to each of the lessees. Each lessee of a residential plot is admittedly subject to the following clause which it has not teen denied is common to all the leases:-- "7. The said plot and the building or erections built or to be built thereon shall be used for residential purposes only, and shall not be diverted to other use without the express consent in writing of the lessor. For breach of this covenant the lessor shall be entitled to forfeit the lease and to resume the plot."
11. ' There can thus be no denial of the fact that the area in question is a residential area and that each lessee is bound by a restrictive covenant to use the leased property purely as residential accommodation the lessor, of course, retaining an option of relaxing the condition or diverting the use. It is nobody's case that the lessor has exercised such option or relaxed such condition. So far as the Society is concerned it is on record having warned against the setting up of the school at the disputed property. Besides, as seen, the suit is grounded on nuisance and easementary and other rights. The questions agitated in the case thus touch the purported tortious wrong of nuisance, enforcement of easementary entitlements etc. And corresponding invocation of covenants spelling restrictive user of the lands involved in the suit. On the questions of law a number of citations have been adverted to at the bar though many others have been noted by this Court during the examination of the case.
12. ' In the first place, it is to be explored as to what is a nuisance and how, at law, it is to be redressed.
13. The term nuisance has not been defined by statute. e Judicial and textbook enunciations may, therefore, be resorted to. If an act of commission or omission, issuing from an occupier or user of land, constitutes mere annoyance grounded purely on personal antipathy, carrying little significance as regards comfort or discomfort, convenience or inconvenience, it may not be actionable at law at all. Law does, not cater to personal whims and fancies unless a clear actionable right exists and has been violated or is in the process of being violated or is even threatened to be violated. Thus for our purposes we are concerned only with such a nuisance, as is recognized by, used in and enforced by law. What then is nuisance? Winfield on Tort attempts to define the expression as "unlawful interference with a person's use or enjoyment of land or of some right over or in connection with it". Similarly, according to Pollock: "Nuisance is wrong done to a man by unlawfully disturbing him in the enjoyment of his property, or in some cases in the exercise of a common right". Nuisance may take numerous forms such as noise, vibration, foul smell, pollution of the atmosphere or of the watercourses/sources above or below the surface of the earth etc. The injury is co-relative to property and to interference with its use. Nuisance may be public or private.
14. Public nuisance is not defined by the General Clauses Act, which adopts its definition in the Pakistan Penal Code, which in section 268 runs thus:-- "268. A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
15. ' A common nuisance is not excused on the ground that it causes some convenience or advantage."
16. Causation of public nuisance is consequently an offence. Besides, the Criminal Procedure Code, in turn, under section 133 thereof, empowers the exercise of a judicial option in the removal of any nuisance or obstruction from any way, river or channel, which is or may be lawfully used by the public or from any public place or preclusion of the conduct of any trade or occupation or the keeping of any goods or merchandise injurious to the health or physical comfort of the community calling for its prohibition egulation or removal etc. The Supreme Court of Pakistan in Muhammad Akhtar v. Allah Bux, 1968 PCr.LJ 225, dealing with the concept of public nuisance involving working of a flour Chakki and cotton ginning plant in a crowded locality, causing nuisance to neighbours, lays down that for the purposes of section 133 of the Code of Criminal Procedure those affected by the offensive trade need not be the whole community and that action would lie at the instance of the immediate neighbours who are but part of the community as a whole. In Raj Koomar Singh v.
17. Sahibzada Roy, ILR 3 Calcutta 20, a Full Bench of the Calcutta High Court, though expressing reservations about a reference to it merely upon differences of opinion on the point between Single Judges of the Court still thought fit to opine that where special damage is caused to any person by an obstruction upon a thoroughfare he is entitled to bring an action in a Civil Court for the purpose of having the nuisance abated notwithstanding the availability of remedies in a criminal forum. In Subbamma v. Narayanamurthy, AIR 1949 Madras 634, it was said that irrespective of the postulates of section 91 of the Code of Civil Procedure, which require written consent of the Advocate-General for filing of a suit to remove a public nuisance such a suit would lie without recourse to the Advocate-General if the grievance be relevant to a public pathway set apart for village residents as distinguished from a thoroughfare involving a general public right. It was also said that any proof of a special damage to plaintiff was not required in such cases. Like is the effect of the opinion of Khalilur Rehman Khan, J., in Abdullah v. Ahmad Khan, 1988 CLC 1301. Mool Cand v.
18. Chhoga, AIR 1963 Rajasthan 25, is another case of the same genus pertaining to the applicability of section 91 of the Code of Civil Procedure aforesaid and opines that a public nuisance may also simultaneously give rise to a private nuisance.
19. In short, therefore, it may be stated that there need not be any watertight compartments for public and private nuisances. It is not uncommon that a specific nuisance may be purely a private nuisance or exclusively a public one. Yet there may be occasions where what is a public nuisance providing cause for punitive action under criminal law or attracting a mandatory written consent of the Advocate-General for institution of civil proceedings under section 91 of the Code of Civil Procedure, such may also be a private nuisance at the same time. The two concepts may thus intersect each other. The test for differentiation between private and public nuisances seems to lie in a peculiar impact on one or more individuals as regards rights in or relating to property incidental upon the offending act or acts, as distinguished from the general inconvenience, annoyance or detriment to the members of the community at large. The private grievance in such matters, in spite of commonality, is more serious and greater than that to the public as a whole.
20. Causes of action are common but because of the distinct element of specific private injury independent action, without recourse to and consent of the Advocate-General under section 91 of the Code of Civil Procedure and without invoking criminal liabilities under the Pakistan Penal Code or protective measures under section 133 of the Criminal Procedure Code, is equally competent.
21. The objection, therefore, that nuisance in the instant case, such as it may be, is a public nuisance alone requiring written consent of the Advocate-General for the institution of this suit loses force because the plaintiffs have shown specific grievances, carrying peculiar stress in the neighbourhood as distinguished from the general impact on the entire locality. The objection as to maintainability of the suit on account of the purported bar under section 91 of the Code of Civil Procedure, therefore, may not be valid.
22. ' This throws up the further and vital question whether the acts complained of constitute nuisance at all and if so whether the wrong, if any, is actionable at law. Inter-twined are matter germane to easement rights and those based on the restrictive covenant of exclusive residential use of the disputed property. The enabling provisions of section 40 of the Transfer of Property Act may also have a bearing in such disputes. On the subject, first the law laid down in Pakistan and Indian jurisdictions would be discussed and then the Common law principles on which it rests, as evolved in the English Courts.
23. Fazal Din v. Lahore Improvement Trust, PLD 1969 S.C. 223, lays down that a land-holder in a residential scheme sanctioned by law has a right to enforce the observance of such scheme. In Haroon E.H. Jaffer v. Sindh Industrial Trading Estate Limited, Wahiduddin Ahmad, C.J., construing a restrictive covenant in a lease deed requiring prior permission of the lessor to construct, held that the permission could not be unreasonably withheld. In Muhammad Munir v. Ahmed Ally Memon, PLD 1982 Kar. 425, the dispute pertained to raising of a multistorcyed structure giving rise to a claimed nuisance likely to affect rights of light, air and privacy of the neighbours based on the Collector's Circular dated 29-7-1938, whereby the heights and plinth areas of structures in the Garden East area of the city of Karachi were restricted. The claim was negatived by Saleem Akhtar, J., as he then was, on the ground that the conditions in the circular were subsequently relaxed and that there was no proof of infringement of rights, moreso because the plaintiff had not shown his family to be a pardah-observing one. Moosa Bhunji v. Hashwani Sales and Services Limited, PLD 1982 Kar. 940, proceeds on the same circular of the Collecor, Karachi, as aforesaid, and relief was declined on more or less similar grounds by the same learned Judge. In R.J. Schwani Cooperative Housing Society Limited v. Haji Ahmad, PLD 1983 Kar. 11, Saleem Akhtar, J., examined a restrictive covenant in the relevant leases whereunder, with the previous consent of the Municipal Corporation, residential purpose could be altered and it was held that the lessor having consented to a change of use etc. There remained no actionable wrong to be redressed. The 1982-83 Karachi judgments, in turn, draw upon the Supreme Court dictum in Fazle Razzaq v. Zaman Shah, PLD 1980 SC 193, laying down that a customary right of privacy is to be based on evidence that the custom exists; it is immemorial, reasonable, continued without interruption, certain in its nature and general in respect of the locality affected thereby. Tajuddin Manji v. Societe International, 1983 CLC 295 was a case where working a generater adjacent to a doctor's clinic was regulated so as not to disturb the doctor's professional engagements. Naseer Ahmad v. Muhammad Ahmed, 1984 CLC 340, is a Division Bench case of this Court and opines that facts spelling-out nuisance (high tension electricity overhead wiring and water drainage hazards etc.) should be specifically stated and established before a prohibitory order can issue. Muhammad Ashfaq v. Sohail Hameed, 1986 CLC 2218, is another Division Bench case from this jurisdiction. This case pertains to a marriage hall and an interim injunction was upheld at the instance of neighbours by Nasir Aslam Zahid, J. (as he then was) who spoke for the Court, on the ground that running of such hall could conceivably constitute nuisance to the neighbours. I am informed, though details are missing, that the view was affirmed in the Supreme Court. In Vazir Ali v. Hanif, 1989 M LD 1966, an ad interim injunction in relation to a multistorey building was vacated by Haider Ali Pirzada, J., on facts which reveal that the constructions were in accordance with the approval of the K.B.CA. Nawab Begum v. M.A. Mahboob, 1989 CLC 2252, is another Single Bench case of this Court and spells out that where a local or municipal authority frames and enforces Regulations calculated to govern, control or ensure rights of residents, violation thereof may be actionable at the instance of those aggrieved. The rule was affirmed on appeal, (HC As 158-159/1989) Salahuddin Mirza, J., declaring :-- "The building rules are meant for the benefit of the society in general and of the immediate neighbours in particular ' To similar effect is the Division Bench case of Suleman Mala v. Karachi Building Control Authority, 1990 CLC 448.
24. ' Now may be examined precedents from the English jurisdiction. Harrison v. Good, Law Rep. 11 Equity 338, may be picked up as the first case from that jurisdiction. The dispute pertained to putting up a public school at a place adjacent to the residence of the plaintiff. There was a prolonged controversy in the school committee after the district parish of St. Marks, Marylebone, was formed in 1847 and national and parochial schools were established, being held in Marlborough Place but owing to a petition by the residents of the street and neighbourhood to the managers of the school discontinued in 1869, in turn giving rise to a proposal to establish a school in Abbey Place. Parties were members of the school committee and one of the covenants with the lease-holders was to the effect that the grantee shall not suffer to be done anything which shall be a nuisance to the grantor or his tenants or the occupiers or owners of the adjoining property or the houses to be built thereon. While the plaintiff was on the school committee the proposal to estblish the school in his vicinity was in effect shelved but upon his retirement it was determined to be implemented. On the matter being taken to Court, the question addressed pertained to prevention of nuisance attendant upon the, coming in and going out of the school children which by rules was regulated and nothing whatever was said about anything that transpired on the property itself. Before James Bacon V.C. Case-law on the subject was placed in detail. He agreed that a degree of discomfort would be caused to the plaintiff as also loss in the value of his property. Gauntlett v. White-Worth, 2 C&K 720, which was a case of nuisance and where depreciation in value of property was considered relevant was distinguished by saying that such loss was of consequence only when nuisance was established first and independently. Further even though it was conceded that the school in Marlborough Place was deemed a nuisance the Vice-Chancellor found that such would not be the case as regards Abbey Place, the first being described as a smaller and shorter street and the second a thoroughfare. The Vice-Chancellor also disagreed with the opinion in Doe v.
25. Keeling, 1 M. & S.95, where Lord Ellenborough had observed: "A business of this kind (that of a school-master) would necessarily produce inconvenience in the neighbourhood, both by the disturbance which the inmates of the house would create and by drawing to the spot a large resort of persons, such as the parents and friends of the children" and that in Kemp v. Sober, 1 Sim. (N.S.)
26. 517, where it was said that the carrying on of a girls' school in any of the houses of Kemp Town estate, Brighton, would constitute "annoyance, nuisance or injury". He seems to have distinguished the first case on the ground that the public school was not for profit and the second because the words "annoyance" and "injury" were missing from the covenant sought to be enforced, thereby drastically curtailing the concept of nuisance. Apparently, for the same reason of absence of the motive of profit Rex v. Moore, 3 B. & Ad. 184, stating that if a person collected together a crowd of people to the annoyance of his neighbours, that was a nuisance, ignored. The examples in Comyn, Dig. Firstly, of setting up of a school "so near my study, who am of the profession of law, that the noise interrupts my studies", and, secondly, "if a school-master set up a school near to the school of another" were disregarded for obvious reasons. The Vice-Chancellor then said that the setting up of the school in the neighbourhood would not constitute nuisance though obvious detriment would be caused. The restricted meaning ascribed to the term nuisance by James Bacon V.C. Has, subsequently, come up for examination in England itself and in Tod-Heathley v. Benham, 40 Ch. D.80, Lindley L.J. Referring to Harrison v. Good says: "I am not by any means sure that the V.C. Did not put on the word "nuisance" in that covenant too restricted an interpretation" and Bowen L.J.
27. Adding that the interpretation was "a matter that may be doubted". In this country, as the terminology in section 268, P.P.C. Would suggest, "danger or annoyance" stand at par with "injury" in the concept of nuisance. Besides, Harrison v. Good was a case in which no question arose as regards the ringing of bells in the school, ringing of church bells having been held to be a nuisance, or the coming together of modern day automobiles and other vehicles emitting smoke and generating noise, day in and day out, at the times of opening and closing of the school, or of keeping a canteen in the school premises or of the children of the school occupying themselves in open spaces within the premises during recess and vacant periods etc., all of which may be distinctive features in this case. Further, it is open to serious doubt that the school here is to be run on no-profit basis. Next may be noticed Nottingham Patent Brick and TILE Company v. Butler, 15 QBD 261, where, a covenant in the lease prohibiting use of the land as a brickyard but such covenant not being brought to notice of the prospective purchaser similar covenants having been incorporated for adjoining plots and opined enforcible by neighbours, the sale was permitted to be rescinded.
28. Tod-Heathley v. Benham, 40 Ch.D.80 has already been referred. This was a case in which an injunction was issued restraining establishment of a hospital for the treatment of outdoor patients suffering from diseases of the throat, nose, ear, skin and eye etc., deemed breach of a covenant, prohibiting the doing of any act which shall or may be or grow to the annoyance, nuisance, grievance or damage of the lessor or the inhabitants of the neighbourhood. Wanton v. Coppard, (1899) 1 Ch.D.92, is again a case pertaining to a school. The Deed relating to a building estate provided that there should not be carried on "any trade or business or occupation whatsoever whereby any injurious, offensive or disagreeable noise or nuisance shall or may be occasioned, caused or made." The plaintiff contracted to purchase the land for the purpose of a boys' school on the representation that there was nothing in the deed which would prevent him from carrying on such a school. On an action for rescission, it was found that the carrying on of the school in an ordinary and reasonable way would be violative of the covenant. In Rogers v. Hosegood, (1900) 2 Ch.D.388, it was observed that when the benefit of a restrictive covenant had been clearly annexed to a piece of land there is a presumption that it passes by assignment of that land and it may be said to run with the land in equity as well as at law without proof of special bargain or representation on the assignment of the land. The covenant in question involved that no more than one messuage or dwelling house should at any one time be erected on the plot and that such messuage should be used as a private residence only. It was found that the assigns of an adjacent plot could enforce the restrictive covenant. The case of Elliston v. Reacher, (1908) 2 Ch.D.374, is a leading case on the subject of building schemes. It lays down that restrictive covenants may be enforced by one purchaser or his successor-in-title against another or his successor, (1) if both plaintiff and defendant derive title under a common vendor; and (2) if before selling the lands now owned by plaintiff and defendant the vendor laid out his estate or a defined portion thereof for sale in lots subject to restrictions intended to be imposed on all the lots and which, though varying in details as to particular lots, are consistent and consistent only with a general scheme of development; and (3) if those restrictions were intended by the common vendor to be and were for the benefit of all the lots intended to be sold, the vendors' object in imposing the restrictions being in general to be gathered from all the circumstances, including in particular the nature of the restrictions, and it being easily inferred from the fact that in general observance of the restrictions is calculated to enhance the value of the several lots offered for sale; and (4) if both defendant or plaintiff or their predecessors purchased from the common vendor on the footing that the restrictions were to ensure for the benefit of the other lots included in the scheme. These ingredients being found subsisting in the case it was said that notwithstanding the common vendor's right to dispense with the adherence to the scheme the plaintiff could enforce the restrictions by injunction. In Pearce v. Maryon-Vilson (1935) 1 Ch.D. 188, the covenant was not to convert use of the premises otherwise than as a private dwelling house etc. Without the consent in writing of the lessor having been first obtained. The lessor was, resultantly, held entitled to authorise whatever user of the property he desired without regard to anything but his own wishes. The action, therefore, failed. Drake v. Gray, (1936) 1 Ch.D.451, involved a restriction prohibiting the erection on any portion of the partitioned land of a house of less than a defined cubical content. The defendant erected a house of less than the defined cubical content. It was found that the covenant was annexed to each and every parcel of land, the plaintiff being entitled to declaration and injunction restraining any further breach. In Medical v. R.S. Trawbridge Ltd. (1937) 2 K.B. 102, it was said that frontragers on a road have an interest over and beyond that of the general public in preventing damage to the road as to entitle them to sue for an injunction against anyone causing unnecessary damage and the Attorney-General need not be a party to the action. Baxter v. Four Oaks Properties Ltd., (1965) 1 Ch.D. 816= (1965) 1 All E.R. 906, envisages that in purchases from a common vendor, where there was no evidence that the vendor laid out the estate before beginning to sell it off and he apparently sold plots of the size, which purchasers wished to take, restrictive covenants could still be enforced by successors-in-title to the original purchasers, the Court being satisfied that it was the intention of the parties that the various purchasers from a common vendor of parts of a defined area of land should have rights inter se. Such intention could be given effect to pursuant to contract as well as a common law right. In re: Dolphin's Conveyance (1970) 2 All. E.R. 664, the conveyance of an estate in parcels involved restrictive covenants involving common interest and common benefit, Stramp, J., relying on Baxter's case ibid. And Renal -v.
29. Cowlishah, (1878) 9 Ch.D.125, holding that there was an equity in the owner of each part of the land to enforce the covenant against the owners of the other portions arising out of the common interest and common intention expressed in the conveyances, which were, to be equated with mutual covenants. Eagling v. Gardner (1970) 2 All E.R. 838, was again a case involving a building scheme and incidental restrictions not to erect on the site any building save a private dwelling house and to make no additions or alterations thereto without the consent of the vendors". Elliston v. Reacher (supra). Was followed and the plaintiffs were found entitled to enforce the restrictions against the defendant. Lastly, may be noted the case of Miller v. Jackson, (1977) 3 All E.R.
338. Plaintiff in the case had obtained judgment on trial for damages and an injunction against the members of the Lintz Cricket Club restraining conduct of the game of cricket on their cricket ground without first taking adequate steps to prevent balls being struck from it on to the plaintiff's house and attached garden. Denning MR. In the Court of Appeal found that the cricket ground was the only one in the village and the plaintiff had purchased the adjoining plot with full knowledge of its existence. The plaintiff could not, therefore, complain of reasonable incidents of the cricketing activity on the ground. The Master of Rolls compared the law as to nuisance in the 19th century with that in the 20th century and found that 400 could be awarded to cover any part or future damage but no injunction could be sustained. Geoffrey Lane, U. Disagreed and affirmed the decree.
30. Cumming-Bruce, U., agreed with Geoffray Lane, U., that it made no difference in law whether the nuisance subsisted before the plaintiffs took up residence in the area or followed that circumstance. Yet he observed as under:-- "It is a relevant circumstance which a Court of equity should take into account that the plaintiffs decided to buy a house which in June 1972 when completion took place was obviously on the boundary of quite a small cricket ground where cricket was played at weekends and sometimes on evenings during the working week. They selected a house with the benefit of the open space beside it. In February, when they first saw it, they did not think about the use of this open space. But before completion they must have realised that it was the village cricket ground, and that balls would sometimes be knocked from the wicket into their garden, or even against the fabric of the house. If they did not realise it they should have done."
31. ' The decision on trial was upturned, observing that it was reasonable that during the matches the family should keep out of the garden whereas the risk of damage to the house could be dealt with in other ways and was not such as to justify an injunction stopping play on the ground.
32. ' It is in the foregoing factual and legal background that these applications are to be decided though some further facts and other relevant law may also be noted.
33. ' Amongst the additional facts is a plea in the rejoinder of the plaintiff No,2 that her husband, putting up in the adjoining house bearing No,24-A, is a heart patient, as evidenced by some documentary material and thus likely to be affected in a greater degree than may have been normally the case. Next are documents submitted by the defendant No,1 regarding the sub-lease, on orders of the Court, through a statemet, dated 5-8-1992 togather with an affidavit of defendant No,1 dated 15-8-1992 indicating that the Foundation Public School has three other units, two for infants and one a junior school.
34. ' I may first advert to an objection by Mr. Munir A. Malik, appearing for the defendant No,1, that the plaint is devoid of details and wanting in material particulars, so much so that even the restrictive covenant pertaining to user is not expressly incorporated in the plaint (a prototype lease deed is annexed). It must at once be stated that under the rules of procedure material facts are to be pleaded in a concise form (Order VI rule 2, C.P.C.) and only such particulars are required as are expressly mandated (Order VI, rule 4 etc. C.P.C.), further and better particulars always capable of being ordered (Order VI, rule 5, C.P.C.). As regards documents, it suffices to state the effect thereof as briefly as possible (Order VI, rule 9, C.P.C.). Further, in cases of this character where the rights are allegedly in the process of impending violation it is only possible to visualise the probable causes and injuries, nothing worth the name having yet materialised. At any event, at an appropriate point of time either further or better particulars can be ordered (Order VI rule 5, C.P.C.) or even an amendment can be allowed (Order VI, rule 17, C.P.C.). This is not to say that necessary details are altogether wanting or missing, such being deducible from the record as a whole. What remains may, understandably, be put in place, in due course of time before the suit is ripe for hearing.
35. Nothing, therefore, at this stage turns on the ground of specifics not being totally in place. An otherwise valid cause cannot be allowed to be defeated merely for technicalities.
36. ' Coming to merits, it is manifest that there is a common lessor, that lands allocated to the society were ex facie laid out for sale in lots subject to restrictions on the units and the restrictions were intended by the lessor, a totally disinterested entity (President of the Republic) for the benefit of all the units, the lessor's object in imposing the restrictions being gathered from the circumstances and the nature of restrictions as well as the prospect of the restrictions being calculated to enhance the value of the various units and that the restrictions were to ensure for the benefit of the other units in the scheme (the lessor clearly not a beneficiary), the last condition being readily inferred if the first three are established. The rule in Elliston's case ibid. Can, therefore, arguably apply, attracting also the enabling provision in section 40 of the Transfer of Property Act which envisages that "for the more beneficial enjoyment of his own immovable property a third person has independently of any interest in the immovable property of another or of an easement thereon a right to restrain the enjoyment in a particular manner of the latter property". It has thus been possible to argue that the covenant as to user binds the land in its inception, affects the nature, quality or value of the land and, going with the land, is annexed to it. The surrounding circumstances, as detailed above, could support the plea. Following the cases cited, it can be said that neither direct covenants between the lessees may be necessary nor the rights are exclusively those of the lessor, though the lessor may for good reason relax the same. Besides, in this case easementary rights have also been urged with some force. Under the Easements Act, 1882, "an easement is a right which the owner or occupier of land possesses, as such, for the beneficial enjoyment of that land to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect of certain other land not his own", as inclusive of "the right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation". It may thus come about that prevention of a nuisance could plausibly also be enforcement of an easementary right and both may be augmented by a covenant of restrictive user. An easement is an easement, a covenant remains a covenant., and a nuisance can best be described as a nuisance and yet, as perhaps here, all three may converge and come to share elements of one another.
37. Taking into consideration all the factual and legal elements spelled out, it cannot be said that nuisance will not result or covenants would not be violated or easementary and other rights would not be transgressed were the Foundation Public School to be allowed to commence its business on the residential property under reference. I have designedly used the word "business" in order to clearly distinguish the opinion of James Bacon V.C. In Harrison v. Good above, where the Public School was sans profit and in fact F the plot for the school was actually a donation. Here, on the material available on the record, the school appears to be running on commercial lines in three other locations and a good deal of money, obviously not for nothing, is claimed to have been paid for obtaining the sub-lease for the proposed branch. Thus what may earn profit for the school may simultaneously entail loss to the plaintiffs in forseeable depreciation of property values.
38. ' Before proceeding further it may be clarified that neither nuisances nor easements are absolute concepts. What may be nuisance in one locality may not be such in another. Much the same way, easmentary rights vary in areawise context. Speaking plainly, similar activity as is complained of by the plaintiffs may have been quite unexceptionable in a commercial area and in a commercial locality. What makes it suspect here is principally the residential character of the surroundings.
39. ' Now note may be taken of an otherwise valid contention from the side of the defendant No,1 that a balance in such matters is to be struck and the good of the society is to be equated with the detriments, if any. Thus Mr. Munir A. Malik argues that the ringing of bells can be curtailed or even precluded. Traffic can be regulated, so as to be confined to the main road and the vehicles frequenting the area for dropping or picking up the children can be conditioned by restrictions. It is also urged that commercial activity is not foreign to the area and other commercial organisations and even schools are found functioning there. As to the last, it may be observed that two wrongs cannot make a right and if immediate neighbours, likewise affected elsewhere, have been slow or loath to act, those who are vigilant cannot be penalised for others' inaction. There is, however, no averment much less any evidence that the area has been transformed into a commercial locality.
40. As regards regulation, perhaps the ringing of bells can be controlled and even the traffic on the 40 street can be moderated. But what about the 300 or so children on the premises itself, what about their daily getting together in the mornings, what about their playfulness during breaks and free periods, what about road congestions, what about pollution of the atmosphere, what about the noises within and without the school, what about hawkers and others who must frequent the area ?
41. Can all this, which may be foreseen and more, which belongs to the unknown future, be regulated?
42. Probably not. Reference on the point has been made to the Indian Supreme Court judgment in Ram Autar v. The State of U.P., AIR 1962 S.C. 1794, where a degree of discomfort was allowed to be suffered and where the inconvenience to some people was found not to be justifiable for action in terms of section 133 of the Code of Criminal Procedure. This view, as to applicability of section 133 ibid. Runs counter to our own Supreme Court decision in the case of Muhammad Akhtar referred above and the rationale behind that decision, in addition to being binding, is clearly mere appealing.
43. ' As regards comparative discomfort to some and manifest advantage to others I am not unmindful of the fact that the activity of running a school is normally a useful one and if the corresponding incovenience is minimal the benefit may outweigh the same. To boot is also the disquieting circumstance that there are hardly any existing provisions for establishing schools in the city and such have to be improvised wherever possible. This is unfortunate. But the lack of such facilities has to be rooted out through due planning and proper implementation at the local level and when that comes about a degree of discomfort for inconvenience in a locality should be deemed to be outweighed by the advantages. Such would then stand exonerated as a fact of modern life. Short of that, however, no other condonation seems permissible, more so if the object could primarily be a commercial one. Mr. Muhammad Jamil has placed on record an order dated 11-5-1992 passed by the provincial Ombudsman, also pertaining to a projected school. The order is no precedent for this Court to refer much less to rely upon yet the reasons therein being somewhat the same as above, can have persuasive value.
44. Another factor which weighs heavily against the setting up of the school lies in the ingredients of the sublease under which the school is claiming. For one thing, even though the sub-lease appears to be compulsorily registrable it has not been registered. Not only that it is not even duly attested.
45. Besides its terms also cannot be readily accepted. A huge amount is said to have been paid without indicating as to how it has been paid. Further, the sublease is not granted by the lessee, who is said to have transferred the leasehold rights but whose transfer does not seem to be supported by any documentary material. Such nebulous rights cannot be accepted without further enquiry.
46. The plaintiffs have thus succeeded in establishing a prima facie case. Balance of convenience lies in their favour to maintain the residential character of the disputed property. They would also suffer irreparable loss if the school is allowed to function in the vicinity, since the injury would be incapable of redress in terms of money. CMA 3920/92 is, therefore, granted and the ad interim order earlier passed is confirmed.
47. ' At the same time, I see no merit in CMA 3982/92, seeking a mandatory injunction. If summer or remedial classes had commenced at the location such have already served their purpose and cannot continue beyond the period of summer vacations. That application is,accordingly, dismissed.