Iftikhar Muhammad Chaudhry, J.--Titled appeals are by leave of the Court against the judgment dated 12th May 1996 passed by High Court of Sindh, Karachi, whereby Appeals Nos, 110, 116 and 158 of 1993 instituted by the appellants/defendants have been dismissed.
2. Precisely stating the facts of the case are that appellants/defendants are running workshops etc. on Residential/ Commercial Plot Bearing No, RC1/1. It may be noted that respondents/ plaintiffs, who are closely related to each other, themselves had been running business of manufacturing cement blocks meant for the construction of buildings on one of the portion of the plot. Later on, they abandoned this business and raised construction of residential flats on their portion. The respondents/plaintiffs apprehended that on account of the business being run by the appellants in the workshops where heavy machines are being operated for cutting and rolling of heavy and thick iron plates and welding plants for, manufacturing and fabrication of huge/heavy containers, water and petrol tanks and poultry feed mixing machines, each item weighing in tons, was causing interference in their comfort and also had become a source of nuisance, which was simultaneously affecting adjoining buildings being occupied by the chronic patients of heart trouble, diabetes and T.B. and also disturbing studies of the students living in the vicinity. Therefore, they applied to the Advocate-General Sindh under Section 91 of the CPC for his consent to institute a suit. Accordingly permission was granted to them and they filed a suit towards 25th April 1983 for declaration and permanent injunction, claiming following relief: "The plaintiffs, therefore, pray that this Hon'ble Court may be pleased to grant mandatory injunction against Defendants Nos, 1 to 6 to close down and remove their industrial undertakings from Plot No, RC/1 situated on the corner of Nishter Road/Baba-e-Urdu Road, Karachi, and be further pleased to direct K.M.C. and K.E.S.C. to take appropriate legal action against the aforesaid defendants to cancel their trade/licences of heavy electric connection so that the industries may not run, and take such other suitable measures and action to remove the nuisance."
3. The suit was contested by the appellants denying thereby the averments of the respondents/plaintiffs, inter alia, stating therein that no case of public nuisance had been made out. Learned trial Court/Civil Judge framed following issues arising out of the pleadings of the parties for determination:--
1. Whether the suit as framed is not maintainable?
2. Whether the suit is barred by law?
3. Whether the suit is bad for non-joinder of necessary parties if so what is the effect?
4. Whether the suit is under valued if so what is the effect?
5. Whether the defendants are running their business since long before the existence and, construction of the building wherein the plaintiff is residing?
6. Whether the locality wherein the defendants are running their business is an industrial locality since before the partition of the subcontinent and there exist factories and other enterprises?
7. Whether the acts done by the defendants amount to public nuisance and are source of constant danger of life, health, education and peaceful living of the plaintiffs and other residents of the locality?
8. What should the decree be?
It may be noted that learned trial Court while recording findings on Issue Nos, 6 & 7 concluded as follows: "In this case to prove his allegations the plaintiff has examined only himself and has not examined any other person. Other witnesses examined by the plaintiff belongs to the Departments and their evidence on the contrary has supported the version of the defendants that they are working under permission and licence and using the sanctioned load. From perusal of the Commissioner report it is clear that noise and vibrations are created when the machines are in use and in such circumstances it is easily presumed that running of the machines, create noise, which amounts to public nuisance and are source of constant danger to life, health, education and peaceful living of the plaintiff and other residents of the locality and therefore the defendants are directed to observe strictly the "timings hours i,e, from 9.00 a.m. to 4.00 p.m. and they should not run their factories during holidays and weekly holiday and accordingly both these issues are decided."
4. Although above findings were recorded in favour of respondents/plaintiffs but their suit was dismissed vide judgment dated 25th May 1992. As such respondents/plaintiffs instituted First Appeal which was decided by Additional District Judge vide judgment dated 12th January 1993 whereby suit filed by them, was decreed as prayed for. Against this order civil revisions were filed by the plaintiffs/respondents, which have been dismissed by means of impugned judgment dated 12th May 1996. Hence instant appeals by leave of the Court.
5. Leave to appeal has been granted to consider the question as to whether the judgment and decree of the Addl. District Judge confirmed by the High Court is not in consonance with the law.
6. Learned counsel appearing for appellants/defendants contended that:- (a)The suit filed by respondents/plaintiffs for declaration/ injunction was not competent as procedure envisaged under Order I, Rule 8 CPC for filing of a suit in representative capacity was not followed, therefore, public nuisance against the appellants/defendants had not been proved, as such on this score alone the suit was liable to be dismissed.
(b) The respondents/plaintiffs have failed to establish that running of workshops by appellants on their own property had caused public nuisance, therefore, the learned High Court should have interfered with the judgment of Additional District Judge dated 12th January 1993.
(c) Respondents/plaintiffs instituted a misconceived legal action by filing the suit because they were fully aware that the appellants/defendants are running the workshops since 1948 as they themselves were occupying one portion of the plot as owner on which they were running the business of the block making and they never raised objection against the appellants/ defendants' business till 1983, as such by their conduct they are estopped to agitate against them.
(d) The First Appellate Court as well as the learned Judge in Chambers of the High Court have accepted the inspection report of the Commissioner as evidence against the appellants/ defendants contrary to law.
(e) The suit filed by respondents/plaintiffs for declaration/ injunction was not maintainable as the entire area where the appellants/defendants business is being carried on is an Industrial area and appellants/defendants workshops are also existing since long.
(f) The appellants/defendants are running trade/business under valid licences, therefore, by passing injunction, direction cannot be issued to them to stop running a lawful business.
7. On the other hand learned counsel appearing for respondents/plaintiffs contended that:--
(i) The respondents/plaintiffs had filed a suit after seeking consent of the Advocate General, therefore, non-following the procedure meant for filing a suit in representative capacity under Order I, Rule 8 CPC would not be fatal.
(ii) The respondents/plaintiffs had brought over-whelming evidence both documentary and oral to establish that they have converted their business of workshops into Industries on account of which public nuisance has been created.
(iii)The respondents/plaintiffs filed a suit after obtaining permission from the Advocate General in terms of Section 91 CPC because in the recent past appellant by installing heavy machinery started causing public nuisance for inhabitants of the area, therefore, the suit filed by them cannot be treated to be misconceived.
(iv)The report of the Commissioner was not objected to by the appellants/defendants, therefore, for the purpose of appreciating evidence, same was taken into consideration without violating any provision of law.
(v) Except the business of appellants/defendants, which now they have converted into Industries in the vicinity, no other Mill, Factory or Industry is situated because this area has not been declared to be an Industrial Area.
(vi) The appellants/defendants under a trade licence are authorized only to run a lawful business but no sooner in the garb of the trade licence, the appellants/defendants started running a business contrary to the terms of licence on account of which public nuisance has been created, legally they cannot be allowed to do so even on the plot/property owned by them.
8. We have heard parties counsel and have also gone through the available record thoroughly. It is to be noted that before initiating legal proceedings the respondents/plaintiffs sought permission from Advocate General of the Province as required under Section 91 CPC to institute a suit. This provision of law envisages that either the Advocate General can himself file a suit or he can consent in writing for institution of a suit on the application of two or more persons. It is to be noted that satisfaction of the Advocate General to give consent for filing of a suit to private persons to whom no special damage has been caused, prima facie, indicates that a case of public nuisance exits. Although an individual in whose favour a right exists, independently can file a suit for declaration/injunction on the stated allegation of causing public nuisance but obtaining the consent of the Advocate General strengthens the cause of the person who wants to institute a suit for declaration/injunctions in respect of alleged public nuisance and institution of such suit of public nuisance would be deemed to be a representation on behalf of people residing in the vicinity where the commission of public nuisance is being alleged. It is submitted before us that the respondents/plaintiffs had filed a suit in representative capacity under Order I, Rule 8 CPC but procedure laid down therein was not followed, therefore, the suit should be deemed to be on behalf of respondents/plaintiffs in their individual capacity. It is not possible for us to accept this assertion of the appellants in view of the consent of the Advocate General in favour of respondents/plaintiffs to institute a suit. Even otherwise, there is no bar upon an individual to institute a suit for a right existing in his favour in respect of the cases pertaining to public nuisance without obtaining consent of the Advocate General, therefore, non-following the procedure under Order I, Rule 8 CPC would not be fatal in given circumstances of the case.
Besides it, in view of the findings of the High Court namely "in case of public nuisance and private nuisance, injury to the property and to a person would confer jurisdiction upon the Court except that in the case of public nuisance, consent of Advocate General as required under Section 91 CPC would be necessary under the law, while in case of private nuisance no such consent would be required but the relief for filing a suit for injunction and damages would be available in both kinds of nuisance" the objection being raised on behalf of appellants has no substance.
9. As has been noted hereinabove that the Civil Judge in his judgment dated 25th May 1992 while recording findings on Issue Nos, 6 & 7 has concluded that nuisance and vibration are created when the machines are in use and in such circumstances it is easily presumed that running of the machines create nuisance, which amounts to public nuisance and are source of sudden danger to the life, health, education and peaceful living of the residents and locality, but such findings are based upon the report of the Commissioner. The Civil Judge despite recording such findings dismissed the suit but the learned First Appellate Court on appeal decreed the suit of the respondents/plaintiffs as prayed for and the learned High Court while dismissing the revision petition filed by the appellants/defendants subscribed to the judgment of the First Appellate Court.
Thus in this manner for all intents and purposes there are concurrent findings of fact regarding causing public nuisance by the appellants/defendants on account of running machinery etc. in their workshops. Normally findings of fact of a Court of record, maintained by the Appellate and Revisional Courts, are not interfered by this Court in exercise of jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, unless non-reading or mis-reading of the evidence is apparent on the face of record. However, as leave to appeal has been granted to consider whether the judgment of the First Appellate Court, confirmed by the High Court is in consonance with law, therefore, reappraisal of the evidence is necessary. But before undertaking this exercise it would be appropriate to understand the definition of 'public nuisance'.
Respondents/plaintiffs after having obtained permission from the Advocate General of the Province instituted a case of `public nuisance'. Under Section 91 CPC word 'nuisance' has not been defined, therefore, to find out its meanings, reference has to be made to Section 3(47) of the General Clauses Act, 1897, wherein it has been defined as under: "Public Nuisance". In the Pakistan Penal Code 'public nuisance' has been defined as under: "Section 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 necessity 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."
It may be noted that on the criminal side even a noise made in carrying on of lawful trade under licence, if injurious to physical comfort of community is a public nuisance. (PLD 1968 Dacca 823).
10. Learned counsel appearing for the parties in support of their respective contentions referred to the definition of the word 'nuisance' from different books including 'Blacks' Law Dictionary' which defines 'nuisance' as under: "Nuisance is that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another, or to the public, and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage.
State ex rel. Herman v. Cardon, 23 Ariz. App. 78, 530 P. 2d 1115, 1118. That which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him; e.g. smoke, odors, noise, or vibration. Patton v. Westwood Country Club Co., 18 Ohio App. 2d 137, 247 NE. 2d 761, 763, 47 O.O. 2d 247. The term is incapable of exhaustive definition which will fit all cases, as it is very comprehensive and includes every thing that endangers life or health, gives offense to senses, violates laws of decency, or obstructs reasonable and comfortable use of property. U.S. v. County Board of Arlington County, D.C. Va., 487 F. Supp. 137,
143. An offensive, annoying, unpleasant, or obnoxious thing or practice; a cause of source of annoyance, especially a continuing or repeated invasion or disturbance of another's right, or anything that works a hurt, inconvenience or damage. Renken v. Harvey Aluminum (Inc.) D.C.Or., 226 F. Supp. 169, 175."
According to American Jurisprudence 2d. "Public Nuisance A public nuisance has been defined as the doing of or the failure to do something that injuriously affects the safety, health or morals of the public or works some substantial annoyance, inconvenience, or injury to the public, and as a nuisance which causes hurt, inconvenience, or damage to the public generally, or such part of the public as necessarily comes in contact with it in the exercise of a public or common right. It is a condition of things which is prejudicial to the health, comfort, safety, property, sense of decency or morals of the citizens at large, resulting either from an act not warranted by law, or from neglect of a duty imposed by law. According to Blackstone (4 Commentaries, 166), "common or public nuisances are offenses against the public order or economical, regimen of the state, being either the doing of a thing to the annoyance of the King's subjects or the neglecting to do a thing which the common good requires". Various other similar definitions are to be found in the textbooks and reports, and there are statutory definitions in a number of the states."
11. Similarly in Words and Phrases "Public Nuisance" has been defined as under:-- "A Public nuisance is one that invades the public.
A public nuisance is an infringement of a public right.
"Public Nuisance" are "public offenses" over which Courts of law have uniform and undisputed cognizance.
"Public nuisance" are those nuisances which have a common effect and produce a common damage.
A "public nuisance" is an injury to the public-at-large or to all persons who come in contact with it.
A nuisance is a "public nuisance" where it affects rights enjoyed by citizens as part of the public.
If annoyance, is one that is common to the public generally it is a "public nuisance".
A "public nuisance" is one that injures the citizens generally who may be so circumstanced as to come within its influence.
Where a nuisance violates public rights, produces a common injury, and constitutes an obstruction to public rights, the nuisance is a "public nuisance".
A "public nuisance" is conduct which interferes with use of a public place or with activities of entire community.
A public nuisance is an offense against the State, and as such is subject to abatement, or indictment on the motion of the proper Governmental agency.
"Public nuisance" is committed where aggregation of private injuries becomes so great as to constitute public annoyance which may be properly subject of public prosecution.
To be a "public nuisance" the activity must be harmful to the public health, create an interference in use of a way of travel, affect public morals, or prevent the public from the peaceful use of their land and the public streets.
A "public nuisance exists wherever acts or conditions are subversive of public order, decency, or morals or constitute an obstruction of the public rights, and such nuisances always arise out of unlawful act.
To constitute a "public nuisance, annoyance must be such as to injure citizens generally who may be so circumstanced as to come within its influence.
A "public nuisance" is activity which produces some tangible injury to neighboring property or persons coming into contact with it and which Court considers to be objectionable under circumstances.
12.Expression of 'public nuisance' has also been defined/explained in the judgment reported as Sultan Ahmed v. Wahid Hussain 1991 MLD 1340 in the following terms: "The word 'nuisance' is derived from French word `Nuire' which means to injure, hurt or harm.
According to Shorter Oxford Dictionary, it means 'anything injurious or obnoxious to the community or to .the individual as member of it, for which some legal remedy may be found'. Liberally anything that causes annoyance or that works hurt or injury, harm or prejudice to an individual or the public or anything wrongfully done or permitted which injuries or annoys another in the legitimate enjoyment of his legal rights would constitute nuisance.
In short anything done which unwarrantably affects the right of the others endangers life or health, gives offence to the sense, violates the laws of decency or obstructs the comfortable and unreasonable use of property may amounts to nuisance."
13.In the light of definitions as it has been cited in above different treatise, it would be appropriate to discuss herein below the case of parties, reflecting from the pleadings and the evidence produced by them before the trial Court. The case of the respondents/plaintiffs is based on documentary and oral evidence led by them in support of their claim. It would be appropriate at this juncture to make reference to the pleadings of the parties because out of the same learned trial Court has framed issues including Issues Nos, 5 to 7 reproduced hereinabove. A perusal of the plaint dated 25th April, 1983 indicates that in the following terms assertion of public nuisance is said to being committed by the appellants/defendants:--
(1) Legally conversion of establishment into workshop by the appellants fitted with, heavy machines being operated with the electricity load ranging from 5 to 50 Horse Power of cutting and rolling plates upto 1 "inch thinkness and welding plants for manufacturing and fabrication of huge buoys water and petrol tanks and poultry feeds mixing machine etc.
(2) Operation of cutting and rolling machines by electric motors produces tremendous noise, thunder and vibration causing damage to the building in the neighborhood and constant source of nuisance which is adversely affecting/causing discomfort to the residents of adjoining building amongst those are old aged persons, chronic patients of heart disease, diabetes, blood pressure and T.B. and due to such nuisance the students also cannot concentrate on their studies.
(3)The manual and electric trolley crane fixed on guarders and rails projecting to 10 to 15 feet on foot path at height of 10 to 20 feet. Electric crane moved by affixed electric motor just below the electric pole wiring. The cranes remain constantly in use for loading and unloading of fabricated tanks, containers, buoys, cutting of heavy iron plates of 4.5 into 8.20 feet. During the operation when the work in workshops is in progress the footpath cannot be used by the public.
(4)The motor fixed on the rails above 20 feet and just below the electric pole wiring is constant source of danger to pedestrian public including ladies and school going children.
(5)The appellants/defendants illegally store and scatter iron plates and other material on the foot path in front of their workshops which deprives the pedestrian public from their right to use foot path and incur a risk of their lives, while walking on the road by using cranes. Therefore, public nuisance is caused to these persons i,e, students, foot path users and school going children.
(6) Due to high voltage consumed by these workshops in their huge electric motors for machines which operate till late hours the voltage of electric supply in the neighborhood becomes so low that residents cannot use their electric appliances and like essential amenities.
(7) The Iron roof of these workshops is every high which has blocked the air and light of the adjoining buildings.
14. In the written statements appellants/defendants submitted some how identical replies and their defence being identical was as under:-- (a)It is not denied that the appellants/defendants have converted their commercial establishment into alleged workshops and installed electrically operated heavy machines.
(b)The business on the plot in question is being run since long after partition of the sub-continent under licence issued by the concerned authorities.
(c) The answering appellants/defendants have not installed heavy machines as alleged. They have been doing their business in the ordinary course since long. They are not operating cutting and rolling machines. Actually Defendants Nos, 1 and 3 (Respondents Nos, 3 and 5) have one cutting machine and one rolling machine each. The Defendant No, 2 (Respondent No, 4) has only a cutting machine but not rolling machine. It is denied that through the cutting and rolling machines heavy and thick iron plates are cut/rolled.
(d)Defendant Nos, 1 and 3 have the welding plants but the Defendant Nos, 2 does not have any welding plant. The said welding plants are used for manufacturing and fabricating of huge containers. It is denied that huge containers are being manufactured or fabricated by anyone of the answering Defendants. Further buoys are neither manufactured nor fabricated by anyone of the answering Defendants. Water and Petrol tanks are not being fabricated or manufactured by all the answering defendants. It is submitted that the same are fabricated by the Defendants Nos, 1 and 3 only. Whereas Defendant No, 2 is doing the business of cutting iron plates only. The poultry feed mixing machines are being fabricated only by the Defendant No, 3 and the function of the defendants is to execute repair works and fabrication is being done on occasions only. The business done by the answering defendants is being usually done by others also in the locality generally.
(e) The workshops of answering Defendants are regulated by the West Pakistan Shops and Establishments Ordinance 1969 [hereinafter referred as 'the Ordinance 1969'] and trimmings as provided under the Ordinance 1969 are being adhered to. It is denied that the answering Defendants do their normal course of business during the holidays and work till late hours. The electric power as used by the Defendant No, 1 is 25 he and the electric power by the Defendant No, 2 is 12 hp. The electric power used by Defendant No, 3 is 41 hp. The electric power consumed by Defendants Nos, 1 and 2 is taken from the poles on the Lawrence Road whereas the electric power consumed by the plaintiffs and Defendant No, 3 is being taken from the poles of Baba-e-Urdu Road. It will not be out of place to mention that the area wherein the answering defendants have been running their business is an area wherein the business in question which is being done by the answering defendants is being done by the other persons who are in possession of the adjoining property. There is no other residential building existing except the building of the Plaintiff No, 1.
(f) On the day of construction of the building by the Plaintiff No, 1, the workshops of the answering defendants were in operation since decades prior to the construction of the said building in the same fashion in which the same are being run. It is denied that the iron plates upto 1" inch thickness are being cut and moulded by the answering defendants. It is denied that tremendous noise, thunder and vibration is produced by the said act. It is submitted that normal noise, is being created. Moreover, Lawrence Road is busy road throughout day and night and is open to heavy traffic also. The building of the Plaintiff No, 1 is situated at main Lawrence Road and also abuts Bab- e-Urdu Road. There is ample of noise during the hours of day and night due to the said heavy traffic. Moreover in the area generally such workshops are operating since prior to the creation of Pakistan and thereafter. It is also denied that due to vibration, thunder and noise any damage is caused to the buildings in neighborhood. As stated hereinabove the plaintiffs' building is only building in the neighbourhood and no damage as alleged or otherwise is being caused to the said building. It is also denied that vibration, thunder and noise produced during the fabrication by the machines welding plants and hammering is a constant source of nuisance and is adversely affecting, causing discomfort to the residents of adjoining buildings amongst whom are chronic patients of heart trouble, diabetes, blood pressure and T.B. It is also denied that persons of old age cannot obtain proper rest and the students cannot do their study. It will not be out of place of mention that at the time of occupation of the building in question the persons occupying the same knew that certain amount of noise is being created by the workshops in the neighborhood and they knowing fully well occupied the same. It is also denied that the noise, thunder and vibration is constant source of nuisance to the- health and welfare of the residents of the locality.
(g) It is denied that the answering defendants store iron plates and other material on the footpath in front of their workshops. In any event the answering defendants have been using authorized electric power to which they are entitled under the law and no exception could be taken thereto.
15. One of the appellants/defendants Ghulam Muhammad PW. 1 entered into witness-box to depose in support of the plaint. He after having given the description relating to the respective possession of the parties on the plot explained that the plot on which workshops and building owned by him and others are situated is a residential-cum-commercial plot. There are 12 flats in this building. He deposed that appellants/defendants are using the portion of the plot in their possession on Industrial basis and they have installed heavy industrial machines on it. They are preparing tanks, heavy pipes and other heavy items with the help of these machines. The weight of each item is more than 2/3 tons. The machines used by the defendants are of about 15 to 20 horse powers. The defendants also used to cut iron plates measuring 2 to 8" inches from their cutting machines. During their work the above machines also produce thunder and vibration, which have caused cracks in the foundation and structure of building and other buildings of the area. They apprehend loss of the lives of people and damage to the building. The residents of the locality cannot live peacefully due to working of these machines and voice of these machine. There is no time limit for operating these machines and they used to run since morning to mid night, including holidays and weekly holidays. The Defendants Nos, 2 to 5 and 6 have installed crane machines protruding on footpath by 10 feet. There is apprehension for the residents of the locality who are using the footpath for their lives every time due to the above cranes. The crane is of 15 to 20 horse power, the heavy electric wires are passing about 2 feet away from the guarder of the above crane. Due to heavy use of electricity by the defendants through their machines the residents of locality are suffering due to low voltage which is also causing damage to their electrical items. The roof of the defendants Karkhana is about 20 to 25 feet high from the floor. It is also effecting the light and air of the adjacent building. The Karkhana of the defendants are working without any approved plan, which were prepared by iron guarder and tinsheets. Firstly the residents of the locality talked to the defendants in this regard. Thereafter they moved application to the Administrative Authorities and others. He further deposed that people of Mohallah had made applications to the D.C., S.P., Deputy Mayor, SHO Eidgah Police Station, Assistant Director and Director K.M.C. against the defendants for running the said factory. He produced such applications Ex.6B to 6Z/1. According to him he also made application to the Martial Law Authorities Government including other heads of the Departments. He produced applications and A.D receipts as Ex.6/Z/2 to 6/Z/138 accordingly submitted to different quarters. He also produced reply received from Director Industry Martial Law, K.E.S.C. and other departments as Exs. 6/Z/139 to Ex.6/Z/146. He also produced photographs of the industries/factories owned by the appellants/defendants as Exs.
6/Z/147 to 6/Z/168. It was also his case that due to vibration and noise by the functioning of the factory the occupants of the building and the patients and children are facing the difficulty. The education of the children is adversely affected. Despite so many applications and protests defendants did not remove the factories therefore, suit was filed. According to him this factory was installed at the premises about 10/12 years back. All the mohallah people and the occupants of the building had grievance against the defendants. In cross-examination he admitted that he had constructed the building in 1977 under the approved plan. He admitted that Baba-e-Urdu Road is a commercial area and there are shops on Baba-e-Urdu and Nishtar Roads. There are also stores, repair workshops and hotels. He denied that there is only his building in the commercial area.
Voluntarily stated that there are church and hospitals in the area. He admitted that except making applications against appellants/defendants he did not make application against any one else. He admitted that in the 17 photos the machine of champion is shown and no manufacturing material is lying there. He denied the suggestion that appellants/defendants are running factory business prior to Pakistan. He did not admit the suggestion that some of the appellants are running business prior to 1970. He also denied suggestion of the appellants/ defendants that he has constructed his building after the business of defendants and voluntarily explained that his ground floor or first floor building was already in existence. He also admitted that he did not produce any certificate of patient and school going children.
It is important to note that in cross-examination the appellants/defendants did not challenge the statement of respondent Ghulam Ahmed on material point i,e, relating to controversy between them, therefore, the presumption would be that the statement of the witness to such extent stands proved against the appellants/defendants.
16.PW-2 Ghulam Rasool is a resident of Lawrence Road and is scraper by profession. He deposed that there is factory since the building of the plaintiff. There are big cutters and the factory for the cutting of steel. The crane of the defendants is also standing outside the factory. The building of the plaintiff was constructed about 12/14 years back and after 3/4 years of the building the factory of the defendant was made. There is no other factory on the said premises but only there are shops.
There are different and old shops on the road including iron work and iron workshops. Voluntarily stated that there are several shops. He further stated that we and other persons feel difficulties and trouble due to this factory.
This witness seems to be a person who lives in the vicinity where the workshops of the appellants/defendants are situated therefore, upon having witnessed workshops of the appellants/defendants he deposed about their status.
17.PW. 3 is Abdul Manan Labour Inspector. He produced Form 'C' of the PW. 6's firms (respondent)
Ex. 9 and 10. According to the contents of Form 'C' closing hours of the business is 7 to 7:30 p.m. After having seen Ex. 10, he stated that M/s Mazhar and Brothers has been registered on 29th September, 1990. The other firms in the vicinity are registered under Factories Act. He disclosed the names of those firms as Islam-ud-Din and Sons, Muhammad Rafique and Wasim Brothers and M/s Faran Engineers Works. According to him he visited the sites. Near the factories there are also residential buildings and Engineering Factories under the Shops Act. In cross-examination he stated that the defendants have not violated any timing rules. On Baba-e-Urdu Road there are shops of Engineers.
Generally on Lawrence Road the steel workshops are situated. On having seen Ex. 9 he deposed that M/s New Champion was firstly registered in November 1977. In cross-examination he deposed that he cannot say since when these factories are functioning for the last 30 years or more. He also admitted that on the ground floor of the same building some engineering workshops are in existence.
The evidence furnished by this witness is important because he categorically had deposed that the firms of appellants are registered under Factories Act besides producing two Form 'C' Ex. 9 and
10. It may be seen that as far as Ex. 9 i,e, a registration certificate is concerned it has been issued in favour of M/s New Champion Engineering and Welding Works in the name of Ghulam Farid for running a shop whereas vide Ex. 10 registration certificate of Industrial establishment has been issued in favour of M/s Mazhar and Brothers in the name of Islam-ud-Din Corner Baba-e-Urdu Road, Nishtar Road Karachi. As per its contents the registration certificate to this industrial establishment was issued in the month of September, 1990 under Section 2(u) of the Ordinance 1969, according to which shop means any premises used wholly or in part for the whole sale or. retail sale of commodities or articles either for cash or on credit or where services are rendered to customers, and includes an office, a store-room, godown, warehouse or place of work, whether in the same premises or otherwise, mainly used in connection with such trade or business. Whereas under Section 2(o) "industrial establishment" means a workshop or other establishment in which the work of making, altering, repairing, finishing or packing or otherwise treating any article of substance with a view to its use, sale, transport, delivery or disposal is carried on or where any such service is rendered to a customer, and includes such other class or classes of establishment as Government may, by notification in the official gazette, declare to be industrial establishment for the purpose of this Ordinance, but does not include a factory. It is to be noted that reference to the above clauses has been made in order to clarify that appellant Islam-ud-Din has obtained the registration certificate from the Labour Department for an Industrial establishment but as per his own statement he is running a factory. This portion of the statement has not been challenged. The witness as we have seen further stated that in their premises other factories are also being run. At this juncture it would not be out of context to refer to the definition of 'factory' under Section 2(j) of the Ordinance, i,e, 'factory' means any premises, including the precincts thereof, wherein 10 or more workers are working, or were working on one day of the preceding 12 months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power, but does not include a mine, subject to the operation of Mines Act, 1923 (IV of 1923).
18.Next witness produced by the respondents/plaintiffs is Muhammad Sadiq Malik Licence Inspector, KMC. He deposed that KMC issued licence to M/s New Champions and Faran Engineers and also to Islam-ud-Din and sons, and Muhammad Rafique, Ghulam Farid in the name of New Champion and Faran Engineers. He produced the license Ex. 12 dated 30th June, 1980 in favour of M/s Faran Engineers. This witness also produced the notices Ex. 13 to 26 issued to appellants firm for violating the rules and creating nuisance. In cross-examination no specific question was put to him in respect of nature of the plant. A perusal of notices Ex. 13 to 26 indicate that they were issued under Section 114 of the Sindh Local Government Ordinance, 1979 in response to the complaints received from the residents of Lateef Hussain Ghalib Building through their attorney. The notices further mention that during the inspection of the site, in continuation of the office notice dated 12th August, 1990 the appellants were directed to comply with the requirement noted therein. These requirements include (1) produce valid KMC trade licence if you are in possession of the same, (2)
No operation should be connected or carried on, in the trade premises which causes or likely to be health hazarded or nuisance of vibration, noise, radiation, inconvenience, dangerous for property or safety of the people residing in the locality, (3) dangerous and offensive trade (Engineering workshop/Lathe Machine and allied workshop) should not be carried on either before 7.00 a.m. or after 8:00 p.m. (4) Licence premises should always be kept clean and under proper sanitary condition. In the concluding para the appellants were warned for the revocation of the licence if they did not comply with these requirements. Noting available on the notices indicates that these notices were affixed on the premises against which they were issued.
It is not known whether any action was taken against the appellants/defendants in pursuance of these letters but through these notices respondent/plaintiffs had proved that they had been continuously complaining to the higher authorities against the acts of appellants/ defendants causing public nuisance.
19.PW-Qazi Muhammad Ashraf Sub-Inspector Land Department KMC deposed that he had seen the factory known as Faran Engineers and New Champion Engineering. Again stated that he had never paid any official visit to these factories. He further stated that he cannot say if any application had been submitted to the Director Land KMC. According to him there was no encroachment recorded on the footpath as he had personally paid visit. He further deposed that after verifying the road if at any time he officially visited.
20.PW-Shafi Muhammad Palejo Labour Officer deposed that timings were mentioned in the registration of Faran Engineering Works and Wasim Brothers situated on Baba-e-Urdu Road. He produced their Registration Nos, 29 and 30 (Ex. 31 and 32). A perusal of Ex. 31 and 32 reveals that establishment where name are mentioned therein have been registered as Factory. He further stated that there is only a residential building of the respondents/plaintiffs and all other are commercial area and workshop. The timing of Faran Engineering are from 9:00 a.m. to 5:00 p.m. with one hour break from 1:00 to 2:00 p.m. The timing of Wasim Engineering is from 8:00 a.m. to 5:00 p.m. with one hour break from 12:00 a.m. to 1:00 p.m.
21. PW-Lal Baksh Tunnio Assistant Engineer KESC deposed that one Ghulam Farid appellant/defendant of New Champion Engineering had applied for connection of electricity for factory National Iron Works. He produced memo of sanctioned load in respect of Champion Welding Works, Mazhar Brothers, M/s Champion Engineering and Welding Works, Muhammad Zami-ud-Din and Wasim brothers and Iftikhar-ud-Din of Faran Engineering Works as Ex.
36. He also produced memo confirmation slip in respect of the said sanctioned load 37 to 46. The witness stated that the sanctioned load is for industrial and lighting purposes. He further stated that in 1983 the sanctioned load was less but it was enhanced thereafter. It was his further assertion that defendant cut the big tin sheets in the factory. A perusal of Ex. 36 indicates the sanctioned load of electricity in favour of the appellants. For convenience contents of this document are reproduced herein below: Name of applicantConsumer No,Account No,LoadDate of connection M/s Champion WeldingAP0178485-1-7-2- 062-820 KW.5-6-62 Works AL862725-1-7-2- 061-701 K.W.CE642 (M/s Rafiq & Sons Mazhar BrothersAP0504215-1-7-2- 076-840 K.W.25-8-60 (Islamuddin & Sons)AL1818115-1-7-2- 075-701 KW.702/P-69 M/s Champion Eng. &AP0336405-1-7-2- 122-560 KW.23-12-66 Welding , AL1421385-1-7-2- 121-701 KW.1364/P-66 (New Champion Eng.
Works) (Ghulam Farid and Sons)
Muhammad ZakirullahAP0014925-1-7-2- 138-155 K.W.11-7-50 Wasim brothers C/oAL0117345-1-7-2- 137-801 KW.
Nation Iron Iftikharuddin & AP0544725-1-7-2- 207-815 K.W.3-6-70 Irfanuddin brothersAL1962565-1-7-2- 208-601 K.W.1311/P-69 (Farhan Engineering Works), Baba-e- Urdu Road, Corner Nishter Road
22. In response to the above noted evidence produced by the respondents/plaintiffs, appellants/defendants examined M/s Liaqat Ali and Rahim-ud-Din as their attorney PWs. As far as former is concerned he in examination-in-chief stated that workshop is situated on Baba-e-Urdu Road.
They only carry repairing work and do not manufacture anything. The machines are automatic machines and there is no vibration and noise in the machines. The area where the factories are running is a commercial area and not residential area, there are many other workshops in the area. According to him they have been issued licenses for this workshop and they are also paying taxes of all kinds. None of the persons of the locality feels any inconvenience. The plaintiff had filed this suit to harass them. In cross-examination he deposed that he does not remember the contents of written statement filed by his father. His father discussed about written statement in his presence but he does not remember the contents of the written statement. He stated that their workshops is known as New Champion for the last 10/12 years: According to him he can produce the trade license in Court, which has been issued by Small Industries Department. He denied the suggestion that the workshop is being run unauthorizedly without any permission or licence. He admitted in cross-examination that cutting, repairing and welding work is being carried out in the workshop but they do not weld and cut the big iron sheets. He admitted that the machines of their workshop cut the iron sheets of 16 and 18 gauge only. He admitted that just adjacent to their workshops the residence of the respondents/plaintiffs is situated which is five storied building.
Many other people live in building including respondents/plaintiffs. 15/20 persons live in the building of the respondents/plaintiffs. The machines are operated by electricity. About 68 KW electricity is consumed in the workshop for cutting and welding. The machines are also meant for rolling of the sheets. At one time one machine is used and not all the machines in the workshop.
According to him they are not using much of 25 horse power machine in the workshop. He admitted that his father has stated that he is using 25 horse power machine and the iron sheets are unloaded and changed. According to him the workshop opens at 9.00 a.m. and closes at 5.00 p.m. He denied the suggestion that workshop works till late night and noise and nuisance is created. He denied that due to height of the workshop which is 10-12 feet the air of the respondents/plaintiffs is blocked. He admitted that just in front of workshop there is a 'Church' and a School. Once again he claimed that there are also `Church' and School but at a long distance from the workshop and not in front of the workshop. He stated that it is incorrect that due to their workshop nuisance is caused and the people who are heart patient and the students feel much trouble and inconvenience.
22.DW Wasim-ud-Din Attorney deposed that their workshop is in existence prior to Pakistan and they had purchased it from the "Hindus". The plaintiffs' building is about 30 feet away from their workshop. The plaintiffs' have constructed his building about 10/12 years back. They only carry repair work in the workshop. They do not manufacture any new items. They work in the workshop with machines. The machines are automatic and do not create any noise. There are 2 walls between their workshop and the building of the plaintiffs. None of the occupants of the flats complained to them about any noise and nuisance. In cross-examination he stated that there are five machines in the workshop. The machines are for the use of cutting, welding and rolling the Iron sheets/plates. The plates are 3mm or less. He denied that due to use of machines nuisance and noise is caused in the locality. There are 6/7 employees in the workshop. Two persons can use all machines. The workshop is registered under the Factories Act. He admitted that there is a Church in front of workshop and School near the Church on opposite side.
24.It is important to note that as per version of this witness after construction of the building they had extended the workshops, however, he denied that due to extension of their workshops people have suffered due to noise and nuisance.
25.Appellants/defendants did not produce any other evidence.
26.Before proceeding ahead it would not be out of context to note that appellants/defendants have made important admissions in their respective written statements, relevant extracts wherefrom have been reproduced hereinabove.
27.Learned counsel contended on behalf of appellants/defendants that the contents of the written statement cannot be used against them without confronting the appellants with its contents. In this behalf he placed reliance on the judgment reported as Mst. Khair-un-Nisa v.
Muhammad Ishaque (PLD 1972 SC 25).
28.It is to be observed that in this reported case the defendants had died during the pendency of the suit therefore his legal heirs were not in a position to accept the contents of the written statement. As such in this context it was held that without adhering to the provisions of Section 32 of the Evidence Act (substituted by Article 46 of the Qanoon-e-Shahadat Order) admissions in the written statement cannot be considered whereas in resent case situation is not the same, as in instant case appellants/defendants did not appear in person as they opted to produce their attorneys. However, one of them i,e, Liaquat Ali (Attorney of Ghulam Farid Defendant No, 3) was confronted with the contents of the written statement in response whereto he admitted that his father discussed about written statement in his presence but he does not remember the contents of the same. In such view of the matter provisions of Section 32 of the Evidence Act or Article 46 of the Qanoon-e-Shahadat Order would not be attracted and on account of denial by Liaquat Ali being attorney of Ghulam Farid (Defendant No, 3) to admit the contents of written statement, it would be presumed that the contents of the written statement were not admitted intentionally, therefore, legal presumption would be that the contents of the written statement had been admitted by the attorney i,e, Liaquat Ali. Besides it as it has been observed hereinabove the appellants/defendants have not challenged the statement of Ghulam Muhammad - PW. 1 on material points and both the attorneys i,e, Liaquat Ali and Wasim-uddin in their examination in chief have not denied existence of workshops on the plot adjacent to the dwelling building owned by the respondents/plaintiffs therefore, inference would be that they have not denied the respondents/ plaintiffs case in respect of running of workshops, factories and industrial establishment on the plot owned by them. Thus for such reasons the contents of the written statement filed by the appellants/defendants can conveniently be used as admission in respect of the relevant facts which have given rise to instant proceedings.
29.It is also significant to point out that besides the evidence which has been discussed hereinabove the learned trial Court had also appointed Local Commissioner who after conducting local inspection of the workshops of the appellants/defendants has submitted his report which is in consonance with the case of the respondent/plaintiffs. A serious objection has been raised on behalf of the appellants/defendants through their counsel on its admissibility i,e, without getting it exhibited, by examining the local commissioner report, it cannot be considered against them. In this behalf reference was placed by them on Tirath ram v. Muhammad Abdul Rahim Shah (AIR 1923 Lah. 546), Nur Muhammad v. Khushi Muhammad (PLD 1975 Lahore 515), Muhammad Bakhsh v.
Nizam Din (PLD 1978 Lah. 31), and Muhammad Ismail v. Muhammad Shafi (1992 CLC 2060). We have examined these authorities but in our view they are not attracted as in these cases the inspection of the Court, carried out by it in respect of any property or things, under the provisions of Order XVIII, Rule 18 CPC, was under consideration. Admittedly inspection report dated 11th February 1989 was not objected to by any of the parties before the trial Court. Thus the Court can refer it to explain the evidence which has come on record. However, independently such report cannot form basis for the grant of relief. Thus by examining the Local Commissioner's Report dated 11th February 1989 from this angle, one feels convinced that the case of the respondents/plaintiffs seems quite in line with the evidence produced before the trial Court by them.
30.Learned counsel for appellants/defendants contended that the respondents/plaintiffs have failed to produce sufficient evidence for the purpose of establishing public nuisance, therefore, the First Appellate Court and the High Court should not have granted them relief as prayed for to substantiate their pleas. Reference was made by them to the case reported as Krishna Mohan Banerjee v. A.K. Guha (AIR 1920 Cal. 550). In this case, a learned Division Bench while dealing with the case of nuisance under Section 133 Cr.P.C., observed that evidence is not to be judged by a volume and the testimony of the few witnesses may be sufficient to prove that the nuisance is injurious to the physical comfort of the community. In this very judgment it was further held that carrying on a lawful trade with a licence, if injurious to the physical comfort of a community, is a public nuisance. In Dr. Tajuddin Manji v. Societe International (1983 CLC 295) it has been held that standard of judging the disturbance is whether it is a normal activity and enjoyment of the plaintiff which is disturbed or likely to be disturbed or it is the abnormal one. In Syed Qudrat Ali v. Mst.
Maqbool Fatima and three others (1989 CLC 599), landlord had sought ejectment of his tenant on the ground of nuisance and the argument raised before the Court was that sufficient evidence had not been produced therefore, dealing with this situation, after having taken into consideration affirmative statement of the landlord wherein it was alleged that on the first floor of the said building family of the landlord was residing and thrust of hammer was causing physical disturbance. This statement was not challenged in cross-examination nor there was an iota of evidence in rebuttal about the nuisance. Even a passing reference about this assertion was not made, therefore, the High Court observed that the law does not require number of witnesses to prove a particular fact simply because the evidence of one witness cannot by itself be a ground for not acting upon a testimony and the unchallenged testimony of the appellant who was residing on the first floor of the building and his those neighbours was sufficient to decide the issue in his favour.
31. After a careful examination of evidence without any fear of doubt it can be held that the respondents/plaintiffs themselves have been running the business of manufacturing cement blocks on a portion of a plot prior to raising construction of a dwelling building, thus the plot was being used by them for commercial purpose. The appellants/defendants after the construction of dwelling building wherein about 10 to 12 families are residing had converted their original workshops into factories/industrial establishments. The factories/industrial establishments are fitted with heavy machines which are being energized with electricity as it is indicative from the chart reproduced hereinabove showing sanctioned load in favour of each of the appellants/defendants by the Karachi Electricity Supply Co. and with the help of such high power voltage of electricity appellants/defendants are running electric motors having 5-50 HP each.
There is evidence as noted hereinabove that some of the appellants/defendants have registered their factories under the Factories Act. It has also been established that appellants/defendants are manufacturing/fabricating water tanks, buoys and poultry feed mixing machine and to achieve the project they undertake the process of cutting and rolling of the iron plates for which they have to use electric cranes and other heavy machinery and for such purpose they also occupy the footpath located in front of their workshops meant for the public use. The noise of running of the machinery is so injurious that it interferes with the comfort of the people living in the neighbourhood of the appellants/defendants including the dwelling flats/buildings which were constructed by the respondents/plaintiffs in 1976/1977. The activities being undertaken by the appellants/defendants are dangerous/injurious for the inhabitants of the area including the students of the School situated in front of their workshops as well as for the visitors of the Church.
Although the appellants/defendants had obtained the licences for running their workshops, which have been issued under the West Pakistan (Shops and Establishment) Ordinance, 1969 but it would not mean in any manner that for the purpose of running an industry, an authority had been given to them to run trade/business on their own plots in violation of rules and regulations i,e, without getting converted the residential-cum-commercial area into industrial area, they have no justification to run an industrial establishment.
32.Learned counsel for appellants/defendants stated that respondents/plaintiffs were not entitled to a decree to restrain the appellants/defendants from running their business merely for the assertion that on account of the business which is being run by them under a licence on their own land, nuisance is caused to them. According to them grant of such relief depends upon case to case. To substantiate the argument reliance was placed by him on Chaytor v. Horn (1904 Chancery Division 233), wherein it has been held that a dweller in towns cannot except to have as pure air, as free from smoke, smell and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a cause of action. They also relied upon Coils v. Home and Colonial Stores Ltd. (1904 Appeal Cases 179) wherein same principle has been reiterated. Then they made reference to Polsue and Alfieri Ltd. u. Rushmer (1904 All England Law Reports 586). In this case there was dispute between the appellant who was running Printing Press in the basement of the building, adjacent to which respondent had his house where he was running a dairy. The complaint of the respondent was that the functioning of the printing machines caused nuisance for him, therefore, the Appeal Court found as a fact that the day work of the appellant did not constitute nuisance but that the night work caused serious disturbance amounting to a legal nuisance. Thus injunction was granted to the respondent restraining the appellant from conducting their business at night so to be a nuisance in respect of noise to the respondent. A perusal of this judgment reveals that each case has to be decided on its own merits while ascertaining that the specific action being carried out by one of the parties against whom other party has lodged a report, constitutes a nuisance or not.
33. As discussed herein above that overwhelming evidence has been brought on record against the appellants/defendants to establish that the functioning of the workshops owned by them has been proved to be injurious for the life, health and property of the dwellers of the area, particularly the occupants of the building owned by the respondents/plaintiffs, therefore, for such reason, learned High Court was perfectly justified in granting relief to the respondents/plaintiffs as prayed for.
For the foregoing reasons, we see no merit in instant appeals, as such same are dismissed. No order as to costs.