' On 11-11-1982 the petitioner filed a suit for mandatory injunction directing the respondents to remove the powerlooms installed in a house adjacent to the house of the petitioner and for a permanent injunction restraining them from installing or operating the powerlooms in the said premises. It was stated in the plaint that a brother of the petitioner, namely, Muhammad Tahir is a student of Medical College in Faisalabad in the third year, two of his brothers Khalid Mehmood and Bashir Ahmad are studying in F.Sc. Similarly, two of his brothers are studying in Class VI while a younger one in Class II and a sister in Class V. The locality in question is not an industrial area but a residential area; that the respondents have installed powerlooms in the adjacent house and because of the noise made by the said operation the academic activities of the said students are adversely affected and petitioner's health is also in jeopardy. The respondents, on 1-12-1982 filed their written statement. They took up the plea that in the locality i,e, Mansoorabad powerlooms are being run in a number of houses and the said area is not residential; that the respondents are operating the powerlooms under a licence from the concerned Department. It was also alleged that the petitioner is insisting upon purchasing the house from the respondents and that the suit is a step in furtherance of the said compaign. Ultimately, it was alleged that the respondents are earning their livelihood from operation of the said powerlooms and the petitioner cannot seek relief which will deprive them of their means of earning. It was also averred that in the said premises as well as in several other premises in the vicinity powerlooms stand installed and were being operated since a long period. The learned trial Court framed issues and recorded evidence of the parties. The suit of the petitioner was dismissed on 10-5-1987. The petitioner filed an appeal which was heard by a learned Additional District Judge, Faisalabad who dismissed the same on 22-5- 1990.
2. Mr. S.M. Masood, learned counsel for the petitioner with reference to the cases of Muhammad Ashiq v. Rafiq (1993 CLC 1846), Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another (1992 CLC 2540), Muhammad Akhtar v. Haji Allah Bakhsh (1968 PCr.LJ 225), Mst. Nasreen Rashid v. Mst. Asghari Begum Qureshi and others (PLD 1982 SC 453), argues that the installation and operation of the powerlooms by the respondents did constitute actionable nuisance and the learned Courts below have, thus, acted with material irregularity in the exercise of their jurisdiction while refusing relief to the petitioner. Mr. Asghar Ali, Advocate for the respondent supports the impugned judgments and decrees.
3. I have gone through the records appended with the Civil Revision. I have found that alongwith the suit the petitioner made a prayer for grant of temporary injunction restraining the respondents from installing more powerlooms in their premises. This application was rejected on 1-12-1982 by the learned trial Court. A prayer for the stoppage of operation of the already installed powerlooms was not even made. Petitioner appeared as P.W.4. In his cross-examination he admits that the house of the respondents was built earlier than the house of the petitioner. He admits that the premises of the respondents has an industrial electric connection; that the respondents were issued an NOC by the Local Municipal Corporation. Admits that powerlooms are installed in the house of one Fazal; admits that the respondents are weavers by profession. Admits that in the area of Mansoorabad powerlooms stand installed in several houses. Several questions were put to the petitioner regarding his title in the house, under his occupation and he admits that the plot underneath the house was owned by three brothers, namely, Ali Muhammad, .Faqir Muhammad and Noor Muhammad and that only Ali Muhammad and Faqir Muhammad had sold the plot to them; that Noor Muhammad had promised that he will execute the said deed; denies the suggestion that they illegally are occupying the share of Noor Muhammad. P.W.3 is the petitioner's brother Muhammad Tahir. He states in cross-examination that he appeared in the Second Professional Examination in the year 1983 and passed the same in the first division; that his brothers studying in F.Sc. Also appeared in 1983 and passed the examination in the third division while another brother passed the same in the second division. He admits that about 200 yards away is the house of Fazal who is operating powerlooms in his house. Expresses ignorance that three/four houses away there are powerlooms in the house of Mushtaq.
4. In rebuttal D.W.1 Muhammad Iqbal who is the brother of an aunt of the petitioner, namely, Mst.
Bashiran Bibi States that powerlooms are installed in streets Nos.11, 12 and 13. Specifically states that in Street No,11 powerlooms are installed in the houses of 5/6 persons named by him. In the vicinity several Mills are operating. D.W.2 is Bashir Ahmad who claims to be residing in Mansoorabad since 30 years, and that in several houses of Street No,11 powerlooms are being operated. D.W.3 is Muhammad Shafi, one of the respondents who has made a statement in line with his written statement. After going through the evidence on record I do not find any misreading of the same by the learned trial Court while recording its judgment on 27-5-1984. The learned Additional District Judge in appeal, however, was of the opinion that some technical hand be sent to the spot to inspect the same and to make a report. He accordingly reversed the said judgment and decree and remanded the matter back vide order, dated 15-2-1986. After remand Ch. Muhammad Ashraf Raza, Advocate was appointed as a Local Commissioner who filed his report on 10-3-1986 and expressed the opinion that the operation of the powerlooms causes noise and vibrations which constitute a nuisance. This report was objected to by the respondents. He was also examined in the Court. In his cross-examination he stated that in the street powerlooms were operating in three houses and across the street as well powerlooms stood installed in a house; that he did not observe any crack in any of the walls of the petitioner's house. Ultimately, the suit was dismissed vide judgment and decree, dated 10-5-1987. The appeal against the said judgment and decree was dismissed by the learned Additional District Judge on 22-5-1990.
5. An examination of the plaint would show that primarily the grievance of the petitioner was that the studies of his brothers and sisters were being affected adversely due to the said powerlooms.
Even during the course of evidence recorded in the years 1983 and 1984, nothing was brought on record that the contention of the petitioner was correct. On the other hand, it had come on record that all the students mentioned in the plaint had passed their respective examinations held in the year 1983. The list commenced in the year 1982 and was ultimately decided by the last Court of fact in the year 1990. It can be reasonably assumed that all the said persons must have completed their studies by the said time and certainly by the time when this Civil Revision is being heard.
6. As to the case-law cited by the learned counsel for the petitioner I find that in most of the said cases the matter came up under section 133 of the Cr.P.C. I may state here that the order passed under the said provision of law is tentative and is subject to the decision of a Civil Court. The said judgment cannot, therefore, be of much help to the petitioner. However, I find that the case of Muhammad Ashiq (1993 CLC 1846) which directly involved operation of the powerlooms and, thus, bears semblance to the present case needs to be referred. The judgment in the said case was given in Constitutional jurisdiction. The aggrieved party appealed to the Deputy Commissioner against the grant of licence to operate the powerlooms and the licence was cancelled on the ground that it has been awarded in contravention of the Resolution of the Municipal Committee, Kasur which made it mandatory that a licence cannot be granted to operate powerlooms unless neighbours reside within 25 yards from the proposed site had given consent. The case was referred back to the Municipal Committee to act in accordance with the said Resolution. It was in this background that the aggrieved party filed the writ petition complaining that despite orders of the Deputy Commissioner the Municipal Committee is continuing to allow the other party to operate the powerlooms. The writ petition was allowed and a direction was issued to the Municipal Committee to implement the orders of the Deputy Commissioner.
7. In the present case, however, I find that no complaint or appeal was made in the hierarchy of the Authorities under the Local Government Laws when it is a case of the respondents that they are operating powerlooms under a licence from the Municipal Corporation.
8. Another significant aspect of the case is that no one from Street No,11 where the petitioner is residing and the respondents are operating the powerlooms has come forward to support the case of the petitioner. I find that it has been suggested to every P.W. In cross-examination that the person whose house lies adjacent on the other side of the premises of the respondent has not complained of any alleged nuisance.
9. In the above state of evidence where convincing evidence has been led that somehow or the other the residential area stands converted into an industrial area wherein every third house powerlooms and other machines are being operated, a case for actionable nuisance has not been made out by the petitioner.
10. I, therefore, uphold the impugned judgments and decrees passed by the learned Courts below.
11. Before parting with this judgment I feel constrained to note that the case in hand depicts the inaction and callous attitude of the Local Body of the area concerned in the Municipal Corporation, Faisalabad whose duty it is to see to it that abnoxious or dangerous trade are not carried on and particularly to maintain the peace and tranquillity requisite for a residential Colony. The looms in question and I presume that the looms in other houses of the area, are being operated with the licence of the said Corporation. It is necessary that while considering an application for installation of a machine in a residential area, the residents of the vicinity be consulted so that before presenting a fati accompli the concerned parties have a chance to rectify the matters at the earliest.
12. With the above observations this Civil Revision is dismissed leaving the parties to bear their own costs.