' This civil revision is directed against the judgment/order dated 12-11-1995 passed by the learned Additional District Judge, Lahore, whereby the appeal of the respondent was accepted and the order dated 30-10-1995 passed by the learned Civil Judge, Lahore was reversed with the result that interim relief in the nature of temporary injunction thereby restraining the petitioners from opening and establishing any school on the premises of 59-F.C.C., Gulberg Lahore till the decision of the main suit was granted.
2. The relevant facts are that respondent No,6 being the owner in possession of a residential house constructed on plot. No,59-FCC, 'Ch. Zahoor Elahi Road, Gulberg IV, Lahore, let out a portion thereof to petitioner No,1 for the purpose of opening and establishing a branch of their School (Junior Section) namely, Lahore Grammar School. The date of lease between the parties to the same is not forthcoming on the record. The above said proposed opening of the school was challenged by respondent No,1 by way of a suit for permanent injunction filed on 18-10-1995 wherein it was claimed that the said respondent No,1 is owner of Plot No,59-FCC, Gulberg, which adjoins the property let out to petitioner No,1 and that F.C.C. Is a residential area, therefore, the houses situate therein and constructed at the various plots comprising the locality could not be converted to any other use. The proposed opening. And establishing of school was termed to be commercial purpose and the same was sought to be restrained on the ground that the opening and commissioning of the school in the premises noted above would be nuisance which would be caused because of parking of vehicles on the road said, the noise and hustle and bustle of the students of the junior section and other commercial activities which are likely to accompany such opening of a private school thus causing material interference in the peaceful enjoyment of her property. The above said suit was followed by four other suits filed by the residents of the same area who are living across the road known as Zahoor Elahi Road, their Property Nos. Being 46-FCC, 47-FCC 48-FCC and 45-A, FCC. The grievance voiced in the said suits is exactly the same as contained in the suit filed by respondent No,1 but with the difference that the subsequent suits are filed by the persons who have already constructed houses at their respective plots and are living therein while respondent No,1 is yet to construct her house on the plot owned by her. Along with the suits noted above, separate applications for the issuance of temporary injunction were also filed thereby seeking injunction of the nature as claimed in the main suit so as to during the pendency of the suit. All the suits noted above came to be assigned to a learned Civil Judge who proceeded to hear and determine the same simultaneously.
3. The suits as also the applications for temporary injunction were contested by the petitioners, who inter alia maintained that Ch. Zahoor Elahi Road, on which the school was proposed to be opened, had already acquired commercial character inasmuch as there are located F.C. College, a Petrol Pump, Essene Foundation School, Beckon House School and two Medical Clinics designated as Dr. Aamar Aziz Clinic and Plastic Surgery Centre, therefore, no valid grouse can be made if any commercial enterprise is added to the so many already existing. The plea of estoppel was also raised on the ground that respondent No,1 having not objected to the conversions already made was estopped under the law to raise any objection to the present conversion. It was also submitted that even according to the averments contained in the plaint the case appears to be one of public nuisance and that being so the suit could not be maintained without first obtaining the permission of the Advocate-General. The bar as contained in section 56(G) of the Specific Relief Act, 1877 was also pleaded and additionally it was maintained that the respondents have no cause of action as building control of the area is that of Lahore Development Authority hence, the remedy of the said respondents, if any, is before the L.D.A. And definitely not by way of the suit filed by them. As for the factual part of the plaint, it was controverted with specific reference to character and location of various properties inasmuch as it was maintained that respondent No,1 owns a vacant plot and since she is not resident of the area, therefore, no action can be maintained by her on the ground of alleged nuisance and in regard to the owners of the houses bearing Nos.45-A and 46 to 48. It was submitted that they are living across the road which is about 200 feet wide, therefore, no grievance can possibly be voiced on the ground of the alleged nuisance as detailed in their plaints.
It was also added that the respondent No,6 has already applied for the commercialization of the building carved out and let out to the petitioner and that the said application is under process with the L.D.A.
4. The applications for the issuance of temporary injunction were vehemently contested between the parties and the learned trial Court having appraised the pleadings as also the documents placed on the record proceeded to dismiss the same vide his order dated 30-10-1995 mainly on the ground that the area where the plot of respondent No,1 and the properties of respondents Nos.
2 to 5 are located constructed is not purely a residential area and that the respondents are already facing the problem of parking etc. Therefore, no prima facie case exists in their favour and if the injunction as prayed for is granted, the petitioners would be put to more inconvenience as compared with that of the respondents..
5. The respondents Nos.1 to 5 being aggrieved of the orders passed in their respective suits filed a single appeal in the District Courts at Lahore, which was heard and decided by the learned Additional District Judge, Lahore vide his order dated 12-11-1995. The said appeal was accepted and the orders of the learned trial Court passed in the suits filed by the respondents were reversed with the result that the temporary injunction as prayed for was granted till the decision of the suit. The learned Additional District Judge, while reversing the order of the learned trial Court enormously benefited himself from the rule of law laid down in the judgment reported as Mrs. Naz Shaukat Khan and 3 others v. Ms. Yasmeen R. Minhas and another 1992 CLC 2540.
6. The above said judgment of the learned Appellate Court has been assailed in the present revision petition.
7. At the hearing Mr. Saqib Nisar, learned counsel for the petitioner impressed upon the theme of repeated three ingredients being essential for the issuance of temporary injunction and that too with the eminent rider that the said three ingredients must also co-exist. It was submitted with particular reference to the case of Mst. Hameedah Begum that she is not a resident of the area inasmuch as she has yet to construct a house on the plot owned by her and as the plaint is grounded on the plea of nuisance, therefore, no prima facie case can be said to be disclosed therefrom nor the balance of convenience tilts in her favour and the question of irreparable loss being caused to her is beyond comprehension. The precise submission being that the persons claiming injunction on the basis of nuisance should not only plead but also positively prove that he is being irreparably effected thereby. As for the rest of the cases, it was maintained they are not the immediate neighbours of the petitioners' school and being a resident of the locality and that too across the road which is 200 feet wide, the plea that nuisance would be caused because of the factors mentioned in the plaint could neither be countenanced for the issuance of temporary injunction nor be termed to constitute the nuisance itself particularly when the dual carriage way intervening between the houses of the respondents and that of the institution proposed to be run by the petitioner are separated by a medial. It was further submitted that the parking of vehicles can be regulated and controlled and so is the case with the ringing of bell and the school being that of nursery classes the alleged hustle and bustle of the students cannot be termed to be of much consequence. As far the argument noted above it was submitted that the pleas taken in the plaint are contemplative and not factual. Referring to the averments contained in the various plaints, it was maintained that the case appears to be that of public nuisance and the same could not be filed without prior permission of the Advocate-General. Provisions of section 56(G) of the Specific Relief Act were also relied to argue that no injunction could be claimed in the facts and ci rcumstances of the case and that the petitioner having obtained N.O.C. From the adjoining neighbours in so far as opening of a school is concerned, no exception could be taken to the establishment thereof. It was lastly submitted that in any case no special damage is shown to have been caused to the plaintiffs/respondents and the school having already been established and opened the temporary injunction could not be issued in the case. The learned counsel for the petitioner summed up his arguments with the submission that F.C. College, other educational institutions and commercial enterprises as also Doctor's Clinics being located in the close vicinity, the area comprising the properties of the respondents and the one in occupation of the petitioner have already assumed commercial/non-residential characters and that being so the respondents were not entitled to the injunction as prayed for.
8. Mr. Ihsan-ul-Haq Bhalli, learned counsel for the respondents while picking up the thread from the last argument of the learned counsel for the petitioner argued that the existence of F.C. College in the area is a blessing rather than a nuisance. It was maintained that the spacious lawns, green trees, shrubs and the nursery of the said college provides lungs to the city. It was submitted that the College buildings are located in the heart of the overall spacious lands/lawns of the College property and the activities of the students in the College are in no way a nuisance for the residents of Zahoor Elahi Road. It was further asserted that the College is in existence for the last about 100 years and has never been a source of nuisance. It was asserted that the area where the school is proposed to be opened is a residential area and merely because some schools and other commercial enterprises or Doctor's Clinics have been established in the vicinity and have not been objected to by the neighbours thereof, the respondents cannot be punished for their inaction nor can be burdened with the liability that they have incurred because of their acts of omission and commission. The findings of the learned trial Court that the area in question has assumed non- residential/commercial character were critically commented upon and it was submitted that the suits of the petitioner are based on the in-born right of peaceful enjoyment of their properties located in a residential area. The opening of school was termed to be a tortious act and it was submitted that this alone would be enough to give a case of action to the petitioner but the additional factor would be enforcement of Building Regulations as framed and prescribed by Lahore Development Authority (Building Regulations, 1984). Regulations Nos.17 and 96 were relied to contend that no land or building could be used in a manner inconsistent with the use prescribed in any approved scheme or the master plan. As far the plea that Mst. Hameedah Begum is not the resident of the area, it was submitted that she being the owner of the plot is definitely affected. It was however, denied that the intervening road between the houses of the other respondents and the one in occupation of the petitioner was of 200 feet width or that the other respondents would not be affected from the nuisance as set out in the plaint. The learned counsel for the respondents Nos. I to 5 heavily relied on the case reported as Naz Shaukat Khan v. Mrs. Yasmeen R. Minhas 1992 CLC 2540 to contend that the total argument raised by the learned counsel for the petitioner have already been raised and answered in the said judgment.
9. Mr. Zafar Iqbal Awan, learned counsel for respondent No,6 in his own turn maintained that no averment worth the name has been made in the plaints to show as to what nuisance would ensue to the respondents Nos.1 to 5 by the establishment and opening of the school and how would the same affect their rights. It was submitted that in the absence of such an averments, the respondents were not entitled to the injunction as prayed for. It was also attempted to argue that Mst. Hameedah Begum having come to know the defect in her suit instigated residents of the locality to file similar suits and that the suits filed by them proceed on almost the same averments.
The precise submission was to the effect that the total averments contained in the plaint are anticipatory or contemplative in nature, therefore, the same could not be considered to be enough for the purpose of issuing an injunction in their favour. The division of Plot No, 59-B having been approved by the L.D.A. Was also relied and reliance was placed on Naseer Ahmad v. Hafiz Muhammad Ahmad and 17 others 1984 CLC 340 to contend that the facts constituting nuisance should be specfically mentioned and that the allegations of apprehended nuisance are of such a nature that they need be established before any prohibitory order is passed. Learned counsel also relied on the section 56(6) of the Specific Relief Act, 1877 to submit that the temporary injunction issued by the learned lower Appellate Court is not sustainable in the peculiar facts and circumstances of the case.
10. It is an admitted position of fact that the property where the school is proposed to be established and opened is located in a residential area and the same is governed by the Building Regulation, 1984 in so far as its development and matters incidental thereto are concerned.
Needless to add that urban development is always regulated by the Development Agencies or he Local Bodies as the case may be and this has been so since the inception of civilization because otherwise the man would still be living in Jungle. Building Regulations A are framed to regulate the relationship between the neighbour and neighbour and man to man as also between State and citizens. The society is bound to observe the regulations for the purpose of keeping good relationship as also for the purpose of regulating their civic life. Right to property is a recognized right but the same has always remained subject to reasonable restrictions imposed by law. This right should not be misunderstood so as to arm any citizen with a right to construct his property in whatever manner he likes and the same is true in regard to the user thereof. Regulation 17 of the Building Regulations referred to above -"" reads as under:-- "No land or building shall be used in a manner inconsistent with the use prescribed in any approved scheme or the master plan as the case may be.
' The authority charged with the duty to frame and administer the above said regulations have also declared certain areas which are subjected to special control. These areas include certain specific areas where the conversion from one user to another is allowed on production of N.O.C. From the owners of adjoining properties and on payment of such fees as may be prescribed from time to time. This conversion has been further subjected to a special condition in so far a building line and permanent open spaces around the building as also the maximum coverage and height of building etc. Are concerned, Regulation 96 speaks of special areas and it is also an admitted position of fact the area in question is not one of the areas mentioned in Regulation 96.
In the factual background noted above as also the law applicable thereto the question arises as to whether the owner of Plot No,59-F.C.C. Or for that matter the tenant thereof could convert a residential house into that of a commercial enterprises by opening and establishing a school therein. The answer is obviously in the negative for the particular reason the Building Regulation framed, therefore, does not permit the same. The area where the school is proposed to be opened and established is a residential area which has not been subjected to special control as provided under Regulation 96, therefore, the conversion of the property into a different use cannot at all be allowed even if N.O.C. Is obtained from the adjoining neighbours. The next question that falls for the determination is to the effect as to whether the resident of the area have a right to seek enforcement of the Building Regulations noted above or is it the sole domain of the authority charged with the duty to enforce the same. The answer is not very difficult to find. The regulations which are meant for the benefit of the residents of the area do create a right in favour of these residents to seek enforcement thereof. Obviously the regulation providing prohibition as to conversion of property to a different use is meant for the benefit of the residents of the area, therefore, they have a right to invoke the jurisdiction of the Civil Court to seek the enforcement thereof. This being so the plaintiffs do have a prima facie case and the two other ingredients would also fall to their lot because the proposed conversion is violative of law. Coming to the case of nuisance as spelt out in the plaint, it would be noticed that the plaintiffs/respondents have sought injunction against a threatened injury inasmuch as the school, according to them, is yet to be opened and established. In these circumstances, the ingredients of nuisance as could be contemplated at the relevant time are mentioned in the plaint and since the better particular can be asked for at the trial or even the plaint could be amended to further explain the ingredients of nuisance therefore, the argument that the averments contained in the plaint neither disclose a nuisance nor constitute one cannot gain magnitude so as to disentitle the plaintiffs/respondents from the temporary relief as prayed for. This aspect of the matter was examined in the case of Naz Shaukat Khan supra and was answered as follows:- "Further, in case of this character where the rights are allegedly in the process of impending violation it is only possible to visualize the probable causes and injuries, nothing worth the name having yet materialised. At any event, at an appropriate point of time further or better particulars can be ordered (Order 6, Rule 5, C.P.C.) or even an amendment can be allowed (Order 6, Rule 17, C.P.C.). This is not to say that necessary details are all together 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. Nothing, therefore, at this stage turns on the ground of specifics hot being totally in place. An otherwise, valid cause cannot be allowed to be defeated merely for technicalities."
' There cannot be any cavil with the proposition that at the time of determining an application for the issuance of temporary injunction the controverted question of fact and law as raised and contested in the suit are not required to be determined. At this initial stage the case is to be examined prima facie by a reference to the facts pleaded and documents placed on the record while keeping in mind the broad principle of law to be applied on the given facts. The importance of the three ingredients as also the manner in which they are to be applied while issuing an injunction has been lime lighted and explained in the case reported as Syed Muhammad Khurshid Abbas Gardezi and 5 others v. Province of Punjab and 2 others 1988 CLC 362. The gist and substance of the above said judgment can be found at page 366 which is instructive on the subject, therefore the same is being reproduced hereunder:- "No finding of determinative nature is required to be made on controverted question of law and fact raised in the suit while considering application for grant of injunction. What could possibly be done at such an initial stage is to keep in the background the facts alleged and disputed in the case and to refer to broad principles of law likely to be applied in resolving them with a view to find out 'Whether there exists prima facie case; whether balance of convenience was in favour of plaintiff and whether on refusal of interim order an irreparable injury would result to him."
' The above said view is further strengthened by the judgment of the Supreme Court reported as Muhammad Arif Effendi v. Egypt Air 1980 SCM R 588, therefore, it could not be successfully argued by the learned counsel for the petitioner and respondent No,6 that the facts essential to constitute nuisance as also to spell out the effect thereof having not been specifically pleaded no case for issuance of temporary injunction is made out. It need by stressed here, even at the pain of repetition, that the respondents Nos.1 to 5 have prima facie established that the locality where the school is proposed to be opened and established is the residential area and that the residents of the locality are entitled to quiet enjoyment of their residential premises. It cannot be denied that there would be unusual rush of vehicles at the time of dropping and picking the students from the school which would definitely be accompanied by blowing of horns, emitting of smoke, hustle and bustle of students as also the drivers and that of the hawkers thereby disturbing the peace, atmosphere and tranquility of the area and this could at least prima facie be termed as nuisance, therefore, the plaintiffs have rightly maintained that such an activity should not be allowed to be commenced. It is no doubt correct that nuisance is not capable of any exact definition. The Jurists have opined on the subject and the two definitions mentioned in the case of Naz Shaukat Khan supra may be mentioned here. Winfield has defined the expression as "Unlawful interference with a person's use or enjoyment of land or of some right over in connection with it" while the Pollock has defined the same expression as: "Nuisance is wrong done to a man by unlawfully disturbing him in the enjoyment of his property, or in some case in the exercise of common right."
'Public nuisance' is, however, defined in section 268, P.P.C. As under:-- "A person is a guilty of public nuisance who does any act or is guilty of an illegal omission who causes any common injury, danger or annoyance to the public or to the people in general dwell or occupied 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."
' A common nuisance is not excused on the ground that it causes some convenience or advantage.
11. The question as to what is private nuisance and public nuisance as also the effect thereof has been examined in detail in Naz Shaukat Khan's case and it has been found that the opening and establishing of a school in the residential area does fall in the definition of private nuisance and persons living in the immediate neighbourhood or even in the vicinity thereof are entitled to enforce their right of quiet enjoyment of their properties by seeking to restrain somebody or anybody living in the same area from disturbing the peace and tranquillity thereof by opening and establishing a school in the residential quarters.
12. In reaching the conclusion noted above, the learned author of the judgment noted above has examined the total available law on the subject, therefore, I would not like to burden this judgment with the repetition thereof. Suffice it to say, that from the averments contained in the plaint as also the law applicable thereto a prima facie case is eminently disclosed. The balance of convenience which in fact means balance of inconvenience also tilts in favour of the respondents inasmuch as the opening and establishment of school would set in all the ingredients of nuisance such as hustle and bustle of students; the traffic jams; ringing of bells; blowing of horns; shouts of hawkers etc. which are sought to be restrained so as to maintain the peace and tranquillity of the area. The irreparable loss would also ensue, if the school is allowed to be opened and established because in that event, the complained nuisance would in fact be caused even in spite of-the fact that the plaintiffs/respondents Nos.1 to 5 have been vigilant enough to make their grouse in time. The argument of the learned counsel for the petitioner that the school had already been opened is not supported by any material on the record. No Attendance Register of the students or even the allied documents have been placed on the record to establish the same. As far the plea that the area where the school is proposed to be opened has already acquired commercial character inasmuch as there do exist two other schools, Doctor's Clinics; a commercial enterprises and F.0 College, it would be noticed that the respondents Nos.1 to 5 cannot be punished or held liable for the inaction of the persons living in the immediate neigbourhood of the said schools and commercial enterprises. The case of F.0 College and that of Doctor's Clinics is of course to be treated apart. It is provided in the Building Regulation No, 17 a house unit may include a part, in exceeding 1/2 of its floor area to be used as office associated with the resident's profession e.g. The Doctor's Clinic or office, a lawyer's office or technical consultants' office etc. The provisions of Regulation noted above would show that a Doctor's Clinic can be opened and established even in the residential quarters. As far the case of the F.C. College, it has already been observed that the premises of the said College are located on the back side of the plot of respondent No,1 and the residential house of respondent No,6. College is built on a spacious premises while the built up portion is located in the heart thereof. The college building is surrounded by lush greens lawns with trees and shrubs planted thereon, therefore, the learned counsel for the respondents have rightly maintained that it provides lungs to the area. The other argument that Mst. Hameedah Begum, respondent No,1, being not the resident of the area could not maintain a suit on the ground of nuisance as she has yet to construct a house at the site is equally devoid of any force. To construct at the vacant site is one of the incidents of ownership and the apprehended wrong in the nature of nuisance can be sought to be restrained. Even otherwise if the school is established in the adjoining property thereby activating the nuisance, the residential character of the vacant plot if respondent No,1 would be seriously affected thereby reducing its value which in itself would be irreparable loss. The establishment of a commercial enterprise in a commercial area does increase the value of the adjoining property but this is not so in a residential area. In any case, all these questions are to be determined at the trial and for the present it is enough that a prima facie case is disclosed and the two other ingredients are shown to be in favour of the plaintiffs/respondents.
13. In the circumstances, the learned counsel for the petitioner has failed to satisfy me that the learned Appellate Court has committed any illegality in reversing the order of the learned trial Court thereby granting injunction in favour of respondents Nos.1 to 5, therefore, no interference is called for in the exercise of revisional jurisdiction of this Court, therefore, this petition is dismissed with no order as to costs.
14. Since the case was argued at length and various questions of fact and law were raised, therefore, the same had to be resolved but it is clarified for all concerned that the order rendered in the case is not to be considered as expression of any opinion on the merits of the case which shall be decided in accordance with law without being influenced in any manner by the tenure of this order.