Siraj Gul plaintiff filed suit against the petitioner namely Khial Din in the Court of learned Civil Judge, Takht Bhai, District Mardan seeking decree for perpetual injunction restraining the petitioner/defendant to cause nuisance and damage to his property mentioned particularly in the heading of the plaint. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after framing as many as 11 issues, recording pro and contr4 evidence of the parties passed decree for permanent injunction in favour of the respondent/plaintiff against the petitioner/defendant vide judgment and decree dated 27-1-1999.
Feeling aggrieved with the judgment and decree, the petitioner filed Appeal No.7/13 of 1999 in the Court of learned Additional District Judge, Mardan at Takht Bhai, but the said appeal was dismissed vide judgment and decree dated, 27-7-1999. Being not satisfied with the judgments and decrees passed against him, the petitioner has filed revision petition in hand.
2. Mr. Muhammad Umar Khan, the learned counsel representing the petitioner argued that the petitioner had taken up, the plea in the written statement that no nuisance due to noise and hammering was caused to respondent/plaintiff because his house was situated far away from the premises where the petitioner has installed his machines. There were intervening houses between the two, hence no nuisance was caused.
3. It was also argued that the suit of the respondent/plaintiff was based on mala fide because there were many other machines installed in the village Gujar Garhi and most of the inhabitants of the said village are blacksmiths by profession and in order to earn their livelihood they have installed such machines. This position is fortified by the statement of Zarab Ali P.W.2 who admitted that there were many machines installed in the said village. The plaintiff also admitted that he was blacksmith and there were many other machines installed in the said village.
4. It was also argued that Muhammad Iqbal Khattak, Advocate was appointed Local Commissioner and was directed to inspect the property in dispute, who submitted his report Exh.C.W.1/1 in which he stated that there were many similar machines installed in the said village and in village Gujar Garhi, all the residents had to bear the noise of the machines.
5. On the other hand Mr. Khalid Khan, the learned counsel for the respondent/plaintiff argued that there are concurrent findings of facts by the Court of competent jurisdiction and no jurisdictional error or defect was pointed out, therefore, the revision petition deserves dismissal.
6. It was also argued that neither the installation of 75 K.Gs. Capacity machine was denied by the petitioner/defendant nor it was denied that the house of the petitioner was situated adjacent to that.
7. It was also argued that in order to find out the gravity of nuisance and inconvenience caused to the respondent/plaintiff the learned trial Court appointed three commissions namely Zafar Ali, Advocate, Muhammad Iqbal Khan, Advocate and Ghulam Hussain, Advocate and the report submitted by all the local commissions were not only accepted by the trial Court but by the Appellate Court also and it was held on the basis of said reports that the installation of the machines by the petitioner/defendant caused nuisance, vibration, smoke, crakes in the houses, mental torture and makes the life of the residents of the locality miserable and disturbing the peace and tranquillity.
8. It was also argued that if the same persons have installed their machines in Gujar Garhi Bazar, that would not make any difference because those machines have been installed in commercial area of the village, but the petitioner has installed machine of 75 K.Gs. Capacity inside the village Abadi, which has caused damage and nuisance to the respondent/plaintiff.
9. It was also argued that Hamiduddin D. W.2 also admitted that machine installed by the petitioner not only causes nuisance but is also source of inconvenience to the public.
10. It was also argued that village Gujar Garhi has not been declared as Industrial Area, therefore, the petitioner cannot be allowed to run a machine inside the village Abadi and the judgments/decrees passed by the Courts below are based on proper appreciation of evidence, hence require no interference by this Court.
11. I have heard the learned counsel for the parties and perused the record.
12. The respondent/plaintiff in order to prove his case examined Habibur Rehman's, Patwari Halqa P.W.1, Zarab Ali P.W.2. He appeared himself as his own witness and was examined as P.W.3. In rebuttal Hazrat Din appeared as attorney of defendant and was examined as D.W.1. Hamiduddin appeared as D.W.2 and Jan Muhammad as D.W.3.
13. The argument of the learned counsel for the petitioner that no nuisance was caused to the respondent/plaintiff because his house was situated away from the place where the petitioner had installed the machine has no force. Hazrat Din (D.W.1) attorney of the petitioner/defendant in cross- examination admitted that the house of the respondent/ plaintiff was situated 65 feet away from the machine of the petitioner, whereas Hamiduddin D.W.2 admitted that the house of the respondent/plaintiff is situated 45 feet away from the machine. Three local commissions were appointed for spot inspection also report that the house of the respondent/plaintiff was situated near the machine, therefore, it is clear from the evidence that the house of the respondent/plaintiff was situated near to the machine or the petitioner.
14. The argument of the learned counsel for the petitioner that the suit tiled by respondent/plaintiff was based on mala tide because most of the people of Gujar Garhi have installed similar machines in the village also has no force. No doubt most of the inhabitants of Gujar Garhi village are black--smiths by profession and in order to earn their livelihood they have installed similar machines but those machines as per evidence available on record have been installed in Gujar Garhi Bazar. Jan Muhammad D.W.3 in examination-in-chief stated that:--- There is no evidence available on record to show that other people of the village have installed machines inside the village Abadi.
15. The question that arises in this case is as to whether any damage or nuisance is caused to the respondent/plaintiff with the installation of machine by the petitioner, answer to this question is in positive.
16. In order to ascertain as to whether the machine/hammer installed by the petitioner/defendant caused noise and nuisance to the respondent/plaintiff the learned trial Court appointed three commissions. Mr. Zafar Ali Khan was the first local Commissioner sent to the spot by the learned trial Court. He submitted his report on 12-9-1995. In para. 3 of his report -Exh.C.W.1/1 he stated:-- Thereafter Ghulam Hussain Advocate was appointed as Local Commissioner. He also submitted his report Exh. C.W.3/1 in which he stated:- (A person cannot sleep)
Mr. Muhammad Iqbal Khattak, Advocate was third Local Commissioner appointed by the Court who also submitted his report Exh.C.W.1/1 on 10-10-1998. In the said report he stated:--
17. The above-quoted reports of three Local Commissioners are consistent and unanimous on the point that the machine installed by the petitioner/defendant was the cause of nuisance, disturbance and inconvenience to the respondent/plaintiff. The said reports of the Local Commissioners submitted after spot inspection had gone un-rebutted and were made evidence in the case. The trial as well as Appellate Court had justifiably recorded their finding on the strength of that evidence because the same was cogent and sufficient. Reliance in this regard is placed on dictum laid down in Akbar Ali and others v. Province of Punjab and others (1990 CLC 718), Government of N.-W.F.P. Through D.C., Bannu and 2 others v. Muhammad Khan (1990 CLC 1898) and Noor Hussain v. Fauji Foundation Hospital (1989 CLC 1).
18. In addition to the reports of the Local Commissioners, there is ample evidence on record to establish that when the machine installed by the petitioner is operated, it causes nuisance to respondent/plaintiff and it becomes difficult for him and his family members to peacefully, live in his house free of noise, disturbance and tension. Hazrat Din (D.W.1), attorney of the petitioner/defendant in his cross-examination admitted:-- Likewise Hamiduddin D.W.2 also admitted:-- When the witnesses produced and examined by the petitioner/defendant admitted that the machine installed by him was source of noise and inconvenience, there was no need of further evidence to prove noise and inconvenience by the respondent/plaintiff because a fact admitted need not be proved. Keeping in view the reports of the Local Commissioners and evidence available on record the Courts below have rightly reached to the conclusion that the machine installed by the petitioner was a source of nuisance to respondent/plaintiff and his family and they could not peacefully live in their house.
19. The argument of the learned counsel for the petitioner that since all the inhabitants of the village Gujar Garhi are blacksmiths and most of them have installed similar machines, therefore, no nuisance was caused by the machine installed by the petitioner and that decree of nuisance should be seen while keeping in view the total environment also has no substance. No doubt the action of nuisance to the property should be looked at from reasonable point of view keeping in mind the time, locality and all the circumstances related therewith must be taken into consideration and a dweller of a village cannot expect to have the same environments which are available to the residents of the such localities of big cities. All this means at an arbitrary standard cannot be set up which is applicable to all localities. There is a local standard applicable in each particular District, but though the local standard may be higher in some Districts than in others, the question in each case ultimately reduces itself to the fact of nuisance or no nuisance, having regard to all surrounding circumstances, but the fact remains that a person living in the country side also have a right to live in his house peacefully without noise, vibration and inconvenience. The evidence available on record is sufficient to prove that 75 K.Gs. Capacity machine installed by the petitioner is a source of inconvenience, annoyance and discomfort to the respondent/plaintiff. The Courts below have, therefore, on appraisal of evidence reached to right conclusion.
I have not been able to find out any misreading/non-reading of evidence or any illegality or material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the Courts of competent jurisdiction. I, therefore, dismiss the revision petition in hand with no orders as to costs.