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Suit No. 820 of 1981, decided on 3rd March, 1982.
‑‑‑O. XXXIX, rr. 1 & 2 read with S. 91‑Nuisance‑Injunetion Nuisance to neighbours by use of machinery by defendant‑Held, to be established before granting any injunction ‑restraining defendant from using such machinery‑Standard of judging annoyance or disturbance assuming character of nuisance..
Before any injunction is granted restraining a party from using any machinery it is necessary to establish that the use by the defendant in the neighbourhood would cause nuisance to the neighbours. The inconvenience should be of such a nature that it may amount to a nuisance. The annoyance or disturbance can be complained of if it assumes the character of nuisance. The standard of judging the disturbance is whether it is the normal activity and enjoyment of the plaintiff which is disturbed or likely to be disturbed or it is the abnormal one. The neighbours can not be expected to respect the abnormal activities and enjoyment of others. Such findings can, however, be given only after considering the evidence of both the parties.
Robinson v. Kilvert (1889) 41 Ch. D 88 ; Eastern and South African Tele graph Co. Ltd. v. Capetown Tramways Companies Ltd. 1902 A C 381 and Bridlington Relay Ltd. v. Yorkshire Electricity Board (1965) 1 A E R 264 ref.
Muhammadally Saeed for Plaintiff.
Noor Muhammad for Defendant.
Date of hearing : 3rd March, 1982.
This is an application under Order XXXIX, rules 1 and 2, C. P. C. pray ing for injunction against the defendant restraining them from installing or running the electric generator on the ground floor of the premises at Shafi Court, Mereweather Road, Karachi. Briefly, the facts are that the plaintiff is a highly qualified consulting Physician and Heart Specialist and is working in Karachi for the last 20 years. His clinic is situated in 30 Shafi Court, Mereweather Road, on the ground floor of the said building. It has been pleaded that in discharge of his professional duty he has to check heart sounds, take cardiograms and has to work in an atmosphere of complete calm and peace. The defendants are carrying on business on the first floor of the said building which is engaged inter alia in the job of transferring of all categories of information connected with the operation of the air transport organization of its members, and in the course of business they have to connect and transmit the information on the telex services. The defendants acquired the room adjacent to the plaintiff's room in which they are installing generator. The plaintiff's grievance is that the installation of generator will create noise and viberation which will seriously interfere with the work of the plaintiff and would disturb the patients who frequently visit him for consul tation and treatment. It has further been alleged that the installation of the electric generator is illegal, unauthorised and without approval of the authorities. The defendants have filed their counter‑affidavit in which they have admitted that the defendants have their office on the first floor in the said building for the last 15 years where they have installed all the equipments and appliances which constitute a communication system for all the airlines including P. I. A. operating or having their offices in Pakistan and who are members of the defendant. All the messages which are desired by these air lines are transmitted to any place outside Pakistan are received by the defendant and are transmitted through the communication system of the defendant installed at the said premises to their respective destinations all over the world. Likewise all messages which are transmitted by any office or place of any airline any where in the world outside Pakistan are in the first instance received by the communicating system of the defendants at the defendant's said premises and from there the same are transmitted to the respective airlines offices in Pakistan. The defendants have admitted that they are installing a generator in the room acquired by them on the ground floor of the building. However, the generator is equipped with full automatic lines, full penal board with additional silencer, exhaust pipe and ventilation. The defendants have frankly stated that some noise and viberation is bound to be produced by the operation of, the electric generator but it has been denied that the same will amount to a nuisance in law or that the same would cause any annoyance or disturb the transquillity of the neighbours.
Mr. Muhammad Ally Saeed, the learned counsel for the plaintiff dilating upon the delicate nature and professional duty of the plaintiff invited my attention to the letter of P. I. A. produced by the defendants in which it has been stated that "as the electricity supply in Club Road Region results in frequent power failure it is necessary that one heavy duty generator be maintained to serve as stand by power supply source". The learned counsel then contended that the very fact that it is a heavy duty generator means that it will create noise and viberation during operation. It will then be difficult for neigbbours to continue with their normal course of business and it will amount to a nuisance. Mr. Noor Muhammad, the learned counsel for the defendant has contended that firstly the generator is a stand by power generator and will not be used regularly. The object of installing the gene rator is to use it only when there is total failure of electricity supply. The learned counsel further pointed out that defendants have four separate electricity connection from different substations which is fitted with such automatic equipments that if there is failure of one sub‑station the supply ling automatically transfers to the other one. Therefore the generator will be used only when all the four lines are dead. His second contention was that from the invoice it is clear that the generator is devised in such a manner that it will not produce noise and viberation which may amount to a nuisance.
At this stage it is not possible to determine even prima facie what amount of noise the generator will produce during the operation. However, the admitted position is that it is bound to produce some noise and viberation on the ground floor adjacent to the plaintiff's clinic. The defendants have not filed any certificate or document from any qualified engineer to establish that the design and the machinery with which the generator is equipped it will not produce noise as alleged by the plaintiff. In view of the fact that admittedly generator is bound to cause noise. and viberation which defendants have tried to minimise by putting extra silencer the plaintiff has made out a prima facie case.
Mr. Muhammad Ally Saeed, the learned counsel for the plaintiff has contended that in view of the letter of the P. I. A. Anneaure "D/1" to the written statement referred above prima facie case has been established and that irreparable loss will be caused to the plaintiff as it would not be possible for him to work in his clinic. It is, therefore, contended that balance of inconvenience is in his favour.
Before any injunction is granted restraining a party from using an machinery it is necessary to establish that the use by the defendant in the neighbourhood would cause nuisance to the neighbours. The inconvenience should be of such a nature that it may amount to a nuisance. Mr. Noor Muhammad, the learned counsel for the defendant had referred to Robinson v. Kilvert ((1889) 41 Ch. D 88), Eastern and South African Telegraph Co. Ltd. v. Capetown Tramways Companies Ltd. (1902 A C 381) and Bridlington Relay Ltd. v. Yorkshire Electricity Board (1965 (1) A E R 264). In the last case while referring to the aforestated two cases following observation was made :‑
"It is, I think, established by authority that can act which does not, or would not, interfere with the ordinary enjoyment of their property by neighbours in the ordinary modes of using such property cannot constitute a legal nuisance. I quote A man cannot increase the liabi lities of his neighbours by applying his own property to special uses, whether for business or pleasure'."
In Robinson v. Kilvert the principle was stated thus :
if a person does what in itself in noxious, or which interferes with the ordinary use and enjoyment of a neighbour's property, it is a nuisance But no case has been cited where the doing something not in itself noxious has been held a nuisance, unless it interferes with the ordinary use of property for the purposes of residence or business."
Everyone has a right to enjoy his property for residential, commercial or recreational purposes in a normal manner which satisfies the test of plain and sober and simple notions. Any use of his property which disturbs the health or normal enjoyment and use of property by its occupants may amount to nuisance. If professional and commercial premises are seriously disturbed by activity in the neighbourhood it will also amount to nuisance.
It, therefore, follows that the annoyance or disturbance can be complained of if it assumes the character of nuisance. The standard of judging the disturbance is whether it is the normal activity and enjoyment of the plaintiff which is disturbed of likely to be disturbed or it is the abnormal one. The neigbbours cannot be expected to respect the abnormal activities and enjoy of others. Such findings can, however, be given only after considering the evidence of both the parties. In the present case except the prima facie finding as stated above I would refrain from commenting further upon this aspect of the case. However, during the arguments on inquiry the plaintiff informed that his clinic timings are from 2‑00 p.m. to 10‑00 p.m. Likewise the defendants stated that they would use the generator only when the electricity is not available from any of the four sub‑stations. For these reasons and circumstances, with the consent of the plaintiff by a short order dated 15‑2‑1982 the application has been disposed of in the following terms: ‑
"The defendants are restrained from operating the generator between 2‑00 p.m. and 9‑00 p.m. However, during 2‑00 p.m. to 9‑00 p.m. the defendants will be entitled to operate the generator provided there is a total failure of electricity in that area."
S. Q. Order accordingly.
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