1. ' This is an application by the plaintiffs to restrain the defendants Nos.1 to 3, pending the hearing and disposal of the suit, from advertising, accepting froms and opening a school at No, A/6, Bogra Road, Bath Island, Karachi (hereinafter referred to as "the property).
2. ' The defendants Nos.1 and 2 are the owners of the property. They leased it to defendant No,4, M/s. City School, for the purpose of running a school therein. The plaintiffs protested against the opening of such school on the ground that the entire area wherein the property is situated is a residential one and that the existence of the school would create a nuisance to the residents of area. In consequence of the protest by the plaintiffs and action taken by defendants Nos.5 and 6, the defendant No,4 was persuaded to leave the property and move elsewhere. However, as soon as the defendant No,4 vacated the property, the defendants Nos.1 and 2 let it out to defendant No,3 for the same purpose, viz. To open and run a school there, even though they were fully aware of the protest and the action taken against the defendant No,4 and were, in fact, parties to the previous litigation arising from the defendant No,4 attempting to run a school on the property. In the circumstances, it is claimed that running a school on the property would result in a nuisance to the plaintiffs, when every morning and afternoon over 700 students would descend upon and leave school causing a monumental nuisance by way of traffic jam, pollution by noise and petrol fumes to say nothing of the loss of peace and quiet of the area inasmuch as there would be great deal of noise from the school when it is in session and shortage of water and choking of sewerage facilities. It is also claimed that the area in question being a residential one and use of the property therein for a purpose other than being in breach of a covenant in the leases granted by defendants Nos.5 and 6, the defendants, are liable to be restrained from using the property for running a school thereon.
3. ' The application is opposed only by defendant No,3 on whose behalf Mr. Farogh Nasim has advanced various arguments. It will be convenient first to deal with the arguments in the nature of preliminary objections.
4. ' Mr. Farogh Nasim contended that Falcon House Grammar School, the school in question, is being set up by Paldstan Education Society and not by defendant No,3 and that, therefore, that society ought to have been impleaded as a defendant. The fact, however, remains that the defendant No3 has not denied the allegation in para.5 of the plaint that the property has been let out by defendants Nos. 1 and 2 to defendant No,3; nor has Paldstan Education Society made any attempt to be impleaded as a party to the suit although it must obviously be aware of the proceedings if, as stated, the school is being set up by it and, as averred in the affidavit in rejoinder, the defendant No3 is the Secretary-General of the Society. In any event, and in the circumstances of the case, non-joinder of Pakistan Education Society cannot adversely affect the suit.
5. ' It is then objected that the suit is bad for having been filed without permission of the Court as required by the provisions of Order 1, rule 8, C.P.C. However, the suit on the face of it has not been filed in representative capacity and the cause of action is expressly stated in para. 8 of the plaint to be that of the plaintiffs. The objection, therefore, cannot be sustained.
6. ' The counsel then submitted that it was open to the plaintiffs to ask the defendants Nos. 5 and 6, the lessors of the property, to take action by way of forfeiting the lease against the defendants No, 1 to 3 for changing the user of the property from residential to non-residential in breach of the restrictive covenant in the lease; and that, therefore, the plaintiffs had an alternative remedy and are, consequently, not entitled to relief by way of injunction. The contention is without substance for the learned counsel did not even attempt to show how the plaintiffs could compel the defendants Nos. 5 and 6 to forfeit the lease; and, in any case, the plaintiffs did, by their letter dated the 27th June, 1993 (Annexure VI to the plaint), addressed to the Administrator of K.M.C., complain about the school proposed to be set up on the property.
7. ' The next objection on behalf of defendant No,3 is that the plaintiffs have not disclosed sufficient particulars to establish the allegation of nuisance and, therefore, no injunction can issue. The objection is sought to be supported by the cases of Naseer Ahmed v. Hafiz Muhammad Ahmed and 17 others (1984 CLC 340), Syed Hussain All v. Ahmed Bux (1992 M LD 2000), Mashkoor Khan and others v. Province of Sindh and others (1971 SCM R 572) and Fazal Din v. Mst. Robeena Aurangzeb and 2 others (1983 CLC 1280). In Naseer Ahmed's case, the nuisance apprehended by the plaintiffs was that high powered electric connection to the defendant's premises would be dangerous to the inhabitants and that there would be drainage problem arising from the defendant setting up a washing factory. It was held that the allegations did not indicate "how the duly sanctioned high powered electric connection would endanger the lives of the inhabitants" or as to what would be the drainage problem; and that "In this case, the allegations of apprehended nuisance are of such a nature that they need to be established before any prohibitive order is passed". (Emphasis added) In Syed Hussain Ali's case, it was held that:-- "The respondent....Was required to state the specific act or acts that were the cause of impairment and damage and the manner in which they caused the damage to his property. If water used in or discharged by the Dhobi Ghat was the cause, he had to plead it specifically and he was further required to disclose in what manner, the use or discharge of water had caused the damage. But the plaint is absolutely silent with respect to the above material facts, in derogation to the basic requirement of law of pleadings."
8. ' In 1971 SCM R 572, it was held that, in the circumstances of that case, it was necessary to record evidence to show whether or not the plaintiffs had a prima facie case; and in 1983 CLC 1280 it was held that no injunction can issue when evidence is necessary to establish a prima facie case.
9. ' Now, whether or not the requisite particulars have been sufficiently pleaded depends upon the nature of each case and the facts pleaded therein. The authorities cited by the learned counsel, therefore, are not of much avail for deciding whether the plaintiffs in this case have pleaded all material facts. On perusal of the plaint and the material produced I am satisfied that the plaintiffs have pleaded all material facts. The nature of nuisance apprehended by the plaintiffs is set out in paragraph 6 of the plaint wherein it was alleged that the area in question is a residential one and that -- "the existence of a school would create a nuisance to the residents of the area when every morning and afternoon over 700 students would descend (upon) and leave school causing a monumental nuisance by way of traffic jam, pollution by noise, diesel and petrol fumes to say nothing of the loss of peace and quiet in the area; inasmu ch as there would be a great deal of noise from the school when it is in session. Needless to say there would also be shortage of water and choking of sewerage facilities."
10. ' Besides, the plaintiffs have annexed to the plaint various photographs to illustrate the state of affairs that would ensue if a school were to be established on the premises. The allegation quite clearly spells out that if a school is established on the premises there would be a great deal of noise resulting from the activities of the school and the children as well as from the increased traffic and there would be traffic jams and pollution by diesel and petrol fumes. These facts, in conjunction with the facts that the area in question is alleged to be a residential one and that running a school on the property is in violation of the restrictive covenant in the relative lease are prima facie sufficient material facts to support the allegation of apprehended nuisance.
11. ' It may be noted that the defendant No,3 has not even alleged that on account of the alleged insufficiency in the pleadings any prejudice has been caused to him. In fact, he has categorically denied that any of the alleged results would follow the establishment of a school on the property. In Syed Hussain Ali's case (supra), it was observed:-- "No doubt the rules of pleadings are not mandatory and deviation from such rules cannot be allowed to defeat the ends of justice. But, however, where the deviation from rules of pleadings has caused, prejudice to the other side in any manner or form, no effect could be given to the prejudicial consequences that may follow."
12. ' To similar effect is an observation in the case of Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another (1992 CLC 2540) which was also a case where opening of a school was sought to be restrained on the ground of apprehended -nuisance. It was observed, at page 2553:- "....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... Or even an amendment can be allowed...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.
13. 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."
14. ' The preliminary objections having been dealt with, the more substantive objections by the defendant No,3 to the grant of temporary injunction may now be considered.
15. ' The plaintiffs' case, of course, is that the area in question is purely residential. That case is sought to be supported by various documents filed with the plaint. Annexure IV-b is a lease of Plot No,A-4, situated in the area, providing, by clause 8 thereof, that the plot and the building thereon shall be used for residential purposes only and shall not be diverted to other use without the express consent in writing of the lessors. Annexure V is a Land Sale Notice in respect of five plots of land mentioned therein, containing a condition that building to be constructed on the plot shall be suitable for residential purposes only. Attachment 1 to Annexure VI shows that the plot in question in this suit is also held subject to similar condition, as does Annexure "A" to the affidavit in rejoinder filed by the plaintiff No,l. None of these documents have been challenged and, indeed, the only argument advanced by Mr. Farogh Nasim is that the area is no longer residential because the French Consulate and a Montessori School are located in the area. But surely, it cannot be said that merely because a Consulate and Montessori School exist in the area, the basic residential character of the area has been changed into nonresidential.
16. That takes us to the question whether or not the plaintiffs have established, prima facie, that the nuisance apprehended by them will be caused to them if the defendant No3 establishes a school on the premises. It cannot be gainsaid that coming into school of a large number of pupils, their assembly and activities there, including very probably outdoor games, their leaving the school, the increase in traffic consequent upon such a large number of students coming to school and resultant traffic jams and emission of smoke and fumes from the vehicles would cause quite considerable degree of annoyance, discomfort and injury to the residents, particularly the plaintiffs who all live within close proximity of the property which is situated in a residential area. I am, therefore, satisfied that the plaintiffs have established a prima facie case. Mr. Farogh Nasim did not seriously dispute the above position but contended, quite vehemently, that this is a case of public nuisance and the suit, not having been filed in accordance with the requirement of section 91, C.P.C. Is not maintainable. He has referred to Winfield and Jolowicz on Tort, 12th Edition, wherein it is stated:-- "Nuisances are divided into public and private, although it is quite possible for the same conduct to amount to both. A public nuisance is a crime while private nuisance is a tort. A public or common nuisance is one which materially affects the reasonable comfort and convenience of a class of Her Majesty's subjects who come within the sphere or neighbourhood of its operation... (p.376).
17. ' So long as the public only or some section of it is injured no civil action can be brought by a private individual for nuisance...Where, however, any person is injured in some way peculiar to himself, that is, if he can show that he has suffered some particular or special loss over and above the ordinary inconvenience suffered by the public-at-large, then he can sue in tort e.g. If he falls into a trench unlawfully opened in a street and breaks his leg. Particular damage is not limited to special damage in the sense of pecuniary loss actually incurred e.g. In an action for negligence. It may consist of proved general damage, such as inconvenience and delay, provided it is substantial, direct and not consequential and is appreciably different in nature or extent to that in fact suffered by the general public, although in another sense it is 'general' and not 'special to him'.
18. (pp. 377-78).
19. ' Private uinsance may be described as unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it." (p. 378).
20. ' Mr. Naimur Rahman, the learned counsel for the plaintiffs, refers to Salmond and Heuston or the Law of Torts (18th Edition) wherein private nuisance is defined, at page 48, thus:-- "The generic conception involved in private nuisance may really be found in the fact that liability in nuisance flows from an act or omission whereby a person is annoyed, prejudiced or disturbed in the enjoyment of land, whether by prejudicial damage to the land or by other interference with the enjoyment of the land or with his exercise of an easement, profit or other similar right or with his wealth, comfort or convenience as occupier of such land."
21. ' The above definitions of public and private nuisance show that acts or omissions of the kind mentioned therein may amount to either public or a private nuisance but that to enable a person to sue in tort without the sanction of the Advocate-General, as prescribed by section 91, C.P.C.; he would have to show that he has suffered some particular damage i,e, damage or loss over and above the ordinary inconvenience suffered by the public-at-large, and that that damage is direct and substantial. The grievance of the plaintiffs in this case is in effect that they, having their houses in close proximity to the proposed school, it is their enjoyment of their own respective houses that will be affected directly and substantially. The case set up by the plaintiffs is, thus, one of private nuisance and the provisions of section 91, C.P.C. Are not attracted.
22. ' Mr. Naimur Rehman contends that, in the circumstances of the case, the plaintiffs are entitled to enforce the restrictive covenant in the lease of the property, whereby the property is to be used for residential purposes only. The lease in question is not on the record but it is not disputed that it contains a restrictive covenant identical with the covenant in a lease relating to plot NoA-4 situated in the same area. Clause 8 of that lease provides:-- "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 lessors. For breach of this covenant the lessors shall be entitled to forfeit the lease and resume the plot."
23. ' The fact that the property is held subject to a restrictive covenant to use it for residential purposes only is also shown by attachments 2 and 3 Annexure VI to the plaint. This fact is not disputed by Mr. Farogh Nasim; nor is it in dispute that the entire area vests in Karachi Municipal Corporation who is the common lessor of the plots situated in the area. It would further appear that K.M.C. Being the owner of the land, divided it into several plots, framed Rules for management and disposal and disposed of the plots, by auctions, subject to such rules which evidently were incorporated in the leaks granted to purchasers including the plaintiffs and the defendants Nos.1 and 2 and/or their predecessors-in-interest. One notice of auction (Annexure V to the plaint) which has been produced as a specimen, contains an express condition that the building to be erected on the plot shall be suitable for residential purposes only. Indeed, no argument to the contrary has been advanced. It is, however, contended on behalf of defendant No3, that the restrictive covenant in question can only be enforced at the suit of the lessors i,e, K.M.C. And that the plaintiffs are not entitled to complain of the alleged breach of that covenant by defendants Nos.1 and 2.
24. ' In this connection, Mr. Naimur Rehman refers to a passage in Mulla's The Transfer of Property Act (Seventh Edition) at page 181; and on the cases of Torbay Hotel Limited v. Jenkins and Lawley ((1940) 2 Ch. 225); Newman v. Real Estate Debenture Corporation Ltd. And Flower Decorations Ltd.
25. ((1940) 1 AER 131); Re Dolphin's Conveyance, Birmingham Corporation v. Boden and others (1970) 2 AER 664); Brunner and another v. Greenslade ((1970) 3 AER 833); Cooverji Ludha v. Bhimji Girdhar ILR 6 Bom. 528); Mr. Farogh Nasim, on the other hand, relies on Syed Hussain All v. Ahmad Bux (1992 M LD 2000); Naseer Ahmed v. Hafiz Muhammad Ahmed (1984 CLC 340) and the unreported case of Muhammad Iqbal v. Mst. Saeeda Bano in Civil Appeal No,698-K of 1990 (1993 SCM R 1559) decided by the Supreme Court.
26. ' The principle upon which a covenantor might claim benefit of a restrictive covenant against another covenantor was laid down in the case of Elliston v. Reacher ((1908) 2 Ch. 374). It was there held that in order to be able to enforce a restrictive covenant-- ' it must be proved (1) that both the plaintiffs and defendants derive title under a common vendor;
(2) that previously to selling the lands to which the plaintiffs and defendants are respectively entitled the vendor laid out his estate, or a defined portion thereof (including the lands purchased by the plaintiffs and defendants respectively), 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 some general scheme of development; (3) that these restrictions were intended by the common vendor to be and were for the benefit of all the lots intended to be sold, whether or not they were also intended to be and were for the benefit of other land retained by the vendor; and (4) that both the plaintiffs and the defendants, or their predecessors in title, purchased their lots from the common vendor upon the footing that the restrictions subject to which the purchases were made were to enure for the benefit of the ether lots included in the general scheme whether or not they were also to enure for the benefit of other lands retained by the vendors. If these four points be established, I think that the plaintiffs would in equity be entitled to enforce the restrictive covenants entered into by the defendants or their predecessors with the common vendor irrespective of the dates of the respective purchases. I may observe, with reference to the third point, that the vendor's object in imposing the restrictions must in general be gathered from all the circumstances of the case, including in particular the nature of the restrictions. If a general observance of the restrictions is in fact calculated to enhance the values of the several lots offered for sale, it is an easy inference that the vendor intended the restrictions to be for the benefit of all the lots, even though he might retain other land the value of which might be similarly enhanced, for a vendor may naturally be expected to aim at obtaining the highest possible price for his land. Further, if the first three points be established, the fourth point may readily be inferred, provided the purchasers have notice of the facts involved in the three first points; but if the purchaser purchases in ignorance of any material part of those facts, it would be difficult, if not impossible, to establish the fourth point."
27. ' In Newman v. Real Estate Debenture Corporation Ltd. And Flower Decorations Ltd., the above principle was extended to a block of flats. Stamp Elliston v. Reacher was a case of building scheme but the principle laid down therein was held in Torbay Hotel Limited v. Jenkins and Lawley to apply to a case where there was no "building scheme" in the ordinary sense because the owners of the land there were not dealing with vacant land and parcelling out plots for sale but had adopted a scheme for alienating, from time to time, portions of land under a systematic policy involving the imposition on those portions a regular system of covenants intended to ensure for the benefit inter se of all persons who from time to time became owners of portions of the estate. It was observed, at page 240 of the report-- "where an owner of land deals with his own land on the footing of imposing restrictive obligations on the use of the various protions of it as and when he alienates them for the common benefit of himself (so far as he retains any of the land) and of the various purchasers inter se, a Court of equity will give effect to this common intention, notwithstanding the absence of mutual covenants, provided that the intention that there should be mutual obligation is sufficiently established."
28. ' J. In the case of Re: Dolphin's Conveyance came to the conclusion, upon analysis of various authorities, that: "There is not a dichotomy between the cases where effect has been given to the common intention inferred from the existence of the concomitants of a building scheme and those where effect has been given to the intention evidenced by the existence of a deed of covenant. Each class of case, in my judgment, depends on a wider principle. Here the equity, in my judgment, arises not by the effect of an implication derived from the existence of the four points specified by Parker, J. (in Elliston v. Reacher, supra) or by the implication derived from the existence of a deed of mutual covenant, but by the existence of the common interest and the common intention actually expressed in the conveyances themselves."
29. ' In Brunner and another v. Greenslade, it was held that where there was a head scheme of development relating to an original plot of land, any sub-purchasers would be bound inter se by the covenants of that head scheme even though they had entered into no covenants with the sub- vendor or with each other, what bound them inter se being an equity independent of any contractual obligation, arising from the circumstances of the existence of the head scheme, the process of division into sub-plots and the disposal of those plots.
30. ' Now, in the present case there is no doubt that the plaintiffs and the defendants Nos.1 and 2 derive their titles from a common vendor, viz. K.M.C. And that the defendant No,3 derives his title from the defendants Nos.1 and 2. It also appears that K.M.C. Being the owner of the entire area, had divided it into plots and disposed of it to various persons subject to the restrictive covenant that the plots so disposed of shall be used for residential purposes only. It would also appear that the restrictive covenants were intended to be for the benefit of all the plots sold. The restrictive covenant is apparently calculated to enhance the value of the plots in the area by restricting the use thereof to residential purposes only. It would, therefore, to quote the words of Lord Parker in Elliston v. Reacher, "an easy inference" that the vendors intended the restriction to be for the benefit of all the plots.
31. That being so, a further inference would appear to follow, namely, that it was the common intention of the purchasers from K.M.C. That the restrictive covenants subject to which they purchased the plots were to enure for the benefit of all other plots sold by K.M.C. In the area in question under a scheme of development. Such an intention may, in fact, be presumed unless the contrary is shown.
32. Megarry, J. Observed in the case of Brunner v. Greenslade (supra):-- "Assuming that the requirements of a scheme exist, there is then the question of intention. Will the equity apply as between the purchsers of sub-lots only if a positive intention to this effect is established, as Preston and Newsom's Restrictive Covenants seems to suggest, or will it apply unless a contrary intention appears? The true view is, I think, the latter."
33. In view of the foregoing, it appears, prima fake, that the property in question is subject to the restrictive covenant to ilse it for residential purposes only and the plaintiffs are, in equity and quite apart from contract, entitled to the benefit of that covenant.
34. ' The cases cited by Mr. Farogh Nasim to contend that the plaintiffs are not entitled to enforce the restrictive covenant do not appear to support him. In Syed Hussain Ali's case, it was held that the allegation that the area in question there was residential was not pleaded by the plaintiffs and, therefore, it could not be considered; and that, on facts, it was not shown that the area was residential. It was, then, observed, obiter, that if the defendant had converted residential plot into commercial, it was for the municipality to take action. However, the facts of the present case are entirely different from those of S. Hussainali's case.
35. ' In Naseer Ahmad's case, it was held that the question of breach of covenant rests between the lessor and lessee and that, therefore, the respondents did not have "actionable cause of action to resist breach of covenant by the appellantunless there is tangible evidence that their rights as lessees will thereby be infringed" (emphasis added). In the present case, it would appear that if K.M.C., the common lessor, were to suffer breach of the common restrictive covenant on the part of the defendants, it would amount to derogation from the grant -- see Newman's case (supra).
36. ' As for the un reportded case decided by the Supreme Court, there a landlord had applied for ejectment of his tenant on the ground of personal bona fide requirement of his son who wanted to start the business of lathe machine and mechanical workshop. It was objected that the shop could not be used for industrial purposes as it had been leased by K.M.C. For commercial purposes. The objection was repelled because: "Firstly, to term the carrying on business of Lathe Machine and workshop as 'industrial use' is wrong because we see daily while passing through roads that Lathe Machines are installed in shops where small steel parts are prepared or repaired. Secondly, the tenant cannot object to such a use.
37. If the landlord uses a premises for a purpose which is not allowed by the lease of the land on which the shop is constructed, it is for the lessor to object and seek his remedy for breach of covenant, if any."
38. ' It will be seen that that case is entirely different from the present one in that it is not concerned with the existence of a scheme of development and of leases by a common lessor to several lessees, containing a common restrictive covenant.
39. In the circumstances, the plaintiffs have established, prima facie, that establishment of a school by defendant No,3 in the area in question would create the kind of nuisance apprehended by the plaintiffs. They are, therefore, entitled to have a temporary injunction issued to prevent the defendants from establishing or running the proposed school.
40. ' Mr. Farogh Nasim, however, contends that the plaintiffs have not objected to the existence of the French Consulate and a Montessori school in the area and have thus acquiesced in the land in the area being used for nonresidential purposes. Mr. Naimur Rahman submits that no nuisance has been caused by either the Consulate or the Montessori school; and, indeed, it is not the case of the defendants that such nnicance has been caused. Further, as pointed out by Mr. Naimur Rahman, no action can be taken against the French Consulate because of the immunity conferred upon it by law.
41. ' The defendant's counsel then submitted that Pakistan Education Society is not a Commercial Organisation and, therefore, should not be prevented from running a school. In the first place, there is no evidence that the Society is a Charitable Organization; and, indeed, the fact that it has incurred very substantial expenditure, as alleged by defendant No,3, points the other way.
42. Secondly, the counsel is unable to state any principle of law or equity which would countenance creation of nuisance by. a Charitable Organisation while denying the same "privilege" to a commercial one.
43. Finally, Mr. Farogh Nasim submitted that now that there are numerous schools running in the residential areas of Karachi and that such state of affairs has becom a "fact of life" which must be accepted. The short answer to that argument is that not only two wrongs, but even numerous wrongs plus one, cannot make a right.
44. ' For the above reasons, the application of the plaintiffs for interlocutory injunction is granted.