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Second Appeal No. 280 of 1951, decided on 18th May 1953 from the decree of Muhammad Rafiq, District Judge, Montgo mery at Lahore, dated the 7th August 1951, reversing that of Muhammad Abdul Rahman, Senior Civil Judge, Montgomery, dated the 27th June 1951.

S. 12‑--Suit for injunction restraining defendant working a brick kiln on evacuee land from discharging soot on to plaintiff's biscuit and ice factory‑Not barred.

The defendant was working a brick kiln on evacuee land. The plaintiff filed a suit asking for a decree for an injunction restraining the defendant from working the brick kiln on the ground that the working amounted to a nuisance.

Held, that the relief to which the plaintiff is in fact entitled is that the defendant should refrain from sending soot to the factory of the plaintiff. The injunction might very well have been in a form which excluded all reference to the brick kiln and that the injunction sought for did not fall within section 12 of the Administration of Evacuee Property Ordinance. The suit there fore was not barred.

Shamim Hussain Qadri for Appellant.

Muhammad Iqbal Hussain and Khizar Tamimi for Respondent.

The plaintiff‑respondent in this regular second appeal is the Montgomery. Flour and General Mills Ltd., Montgomery, which company has a biscuit and ice factory outside the town of Montgomery. The defendant‑appellant is the Refugee Rehabilitation Co‑operative House Building Society Ltd., the allottee of an evacuee brick kiln which is situated quite close to the biscuit and ice factory. On 13th of December 1949, the plaintiff‑respondent filed a suit asking for a decree for an injunc tion restraining the defendant from working the brick kiln on the ground that the working amounted to a nuisance. It is alleged that the soot from the smoke which went up the chimney of the brick kiln came down and affected the health of the workmen and residents of the factory, that it would also mix with biscuits and ice and so would injuriously affect the health of those who use the ice and the biscuits, and that the heat of the chimney and its sparks were a continued source of danger to the cotton, cotton seed, diesel oil and mobile‑oil lying at the factory, which are easily combustible material. It seems that not only a large number of workmen work at the factory but the manager and other officials also reside on the premises. The defendant denied all the allegations with respect to the brick kiln constituting a nuisance. The suit was dismissed by the trial Court on 26th of October 1950, on the ground that the existence of a nuisance had not been proved. On appeal, the learned District Judge, on 12th of February 1951, remanded the case for further enquiry as he was of opinion that, for the proper decision, of the question involved, further evidence was needed. The trial Judge dismissed the suit for a second time on 27th June 1951, after recording further evidence. An appeal to the learned District Judge has again been successful and the suit has been decreed in full. The defendant has appealed.

Two points only are argued before me. The first is that the finding of the learned District Judge as to existence of nuisance is vitiated by the misreading of evidence. The second is that the brick kiln being purely evacuee property, no injunction could have been granted in respect of it in view of section 12 of the Administration of Evacuee Property Ordinance (XV of 1949). As regards the first point, it may be observed that the finding of the learned District Judge consisted of two parts. The first relates to the evidence as to the soot affecting the health of the workers and the residents of the factory. With respect to this part, the learned counsel for the appellant concedes that whatever the value of the finding, it is not liable to be assailed in second appeal. The second part of the finding relates to evidence as to the existence of danger to the cotton, cotton seed, diesel oil and Mobil oil catching fire on account of the heat generated by the chimney of the brick kiln. Learned counsel urges, though he spoke at the outset of a misreading, that the persons who have deposed to the existence of such a danger are really not experts with respect to this matter. One of the witnesses relied upon is Jamal Din who holds a first class certificate of Mechanical Engineering from the Punjab Board, Lahore, and has experience of 15 years as an engineer. When questioned as to what objection learned counsel has got to this witness, his reply is that he is an employee of the plaintiff company. But that is not an objection as to the legal sufficiency of evidence. He is an expert with respect to the matters concerned. Another witness is Mr. A. L., Right, who had come from England to set up the biscuit factory of the plaintiff. Learned counsel for appellant argues that this witness is only a building engineer and cannot speak to the danger to the cotton seed etc., catching fire from the heat of the chimney, with authority. However, no question was, in the cross‑examina tion, put to the witness challenging his right to speak on the subject. It is true that neither this witness nor any other has properly explained how the conclusion, that there is a danger to the material in the factory catching fire, is reached. If I were to decide the question of fact myself, I would like to know what was the temperature created by the chimney, what was the temperature at which the material would catch fire, and consider ing the distance between the chimney and the material whether it was likely that the degree of temperature required for setting the material on fire could be reached. As a matter of fact, it is not even shown on this record bow far the chimney is from the material, nor is there anything to show the amount of heat generated by the chimney. It is not even clarified as to whether, if the chimney was of a sufficient height, the danger could be eliminated. However, I am only concerned with the legality of the finding of fact and I cannot say that there is absolute absence of legal evidence on the record for the finding reached. Learned counsel for the appellant has only assailed the finding as regards its legality and has not even tried to make any capital out of the deficiency on the record which I have mentioned above. I presume from this that, so far as the present case is concerned, he has in fact really nothing to say with respect to these matters which would be of help to him. I hold that there is a legally proper finding with respect to the existence of nuisance. The second point relates to the interpretation of section 12 of the Administration of Evacuee Property Ordinance, In accordance with section 12, no Court can grant an injunction or pass any order of any kind whatsoever in respect of evacuee property. The question for decision, therefore, is whether it can be said with respect to the present injunction that it is one with respect to evacuee property. At first sight it would appear to be so and I was inclined at the beginning of the arguments to refer this case to a Division Bench for the matter may be one of some general importance. On further consideration of the matter, however, I am quite clear in my mind that the present case does not fall within section 12. Just consider what really is grievance of the plaintiff the facts which gave him a cause of action. The first part of his complaint is that soot from the smoke of the chimney comes down from the smoke into the factory and injuriously affects the health of the residents and workers and also mixes up with the biscuits and ice which are being prepared in the factory. The complaint in the nutshell is that the defendant is the cause of some soot being sent into the plaintiff's factory. The right which is being infringed is the right of every person to be immune from such action of another as would cause him injury with respect to health or property. The relief to which) the plaintiff is in fact entitled with respect to this may be stated thus: the defendant should refrain from sending soot to the factory of the plaintiff. The injunction might very well have been in a form which excluded all references to the brick kiln. Had the injunction been, for instance, the defendant is prohibited from doing any act which will be the cause of sending soot to the plaintiff's factory or of doing any other act which will affect the health and safety of the residents and workers in the factory', it could not be said that the injunction was in respect of any evacuees property. The plaintiff would be quite satisfied and the result of the suit would be the same if the injunction were in the form mentioned above. The plaintiff can very well say, "1 am not at all concerned what property you have and where you work, but you should, refrain from doing a particular act which is a cause of injury to me." I have explained the implication of the injunction with respect to the first part but similar considerations will apply to the second part of the injunction.‑ It is only a matter of con venience that the injunction is in the form in which it has been granted, i.e., that the defendant should not work the brick kiln. I hold, therefore, that the present injunction does not fall within section 12 of the Administration of Evacuee Property Ordinance, I may mention here that this point was taken for the first time in second appeal although, being a question of law and jurisdic tion, I have allowed it to be raised. In fact before the learned District Judge the contest was confined to the existence or non -existence of the nuisance.

I have found that the finding about the existence of nuisance by the learned District Judge is not liable to attack and that the injunction is one which is not prohibited by the Administration of Evacuee Property Ordinance. As I have already indicated, I am not quite satisfied with the way in which expert evidence has been judged in the present case I do not know from this record whether it was not possible so to arrange matters that the defen dant may carry on the brick kiln without causing any injury or inconvenience in any manner to the plaintiff. For instance, minimum height of the chimney might have been provided and also a minimum distance of the chimney from the plaintiff's factory might have been fixed. However, before me no argument has been addressed on these lines and I should presume that there has nothing to argue. The only two points argued before me fail and dismiss the appeal. Considering, however, that the plaintiff had built the factory close to the brick kiln, which already existed, I leave the parties to bear their own costs throughout.

A. H. Appeal dismissed.

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