1994 PLP 2163 (SCMR)

The appellant, since dead and represented by his legal heirs, filed an application for ejectment against the respondent from the disputed shop on the grounds of nuisance caused to his family members, using the premises for purposes of running press in breach of the conditions of tenancy and materially impairing the utility of the shop. The learned Controller . granted ejectment on grounds of nuisance and infringement of the conditions of the tenancy agreement, which was set aside by the impugned .judgment of the High Court. Leave was granted to consider whether the learned Judge in Chambers was justified in reversing the finding of the learned Controller on, the above two grounds. The respondent was inducted as a tenant under agreement entered into between the parties in the year 1965. This agreement was renewed in the year 1966 and since then the respondent is in continuous possession of the disputed shop. The allegation of the appellant was that the respondent in violation of the terms of tenancy has installed and is running a press in the shop, which is on the ground floor of the building and is thereby creating nuisance to the occupants of the building as well as others. It was further alleged that his wife, who is residing on the first floor, is a heart patient and has greatly suffered due to nuisance caused by the respondent. The learned Controller inspected the premises and held that no nuisance is caused to the neighbours, but nuisance is caused to the wife of the appellant, who by virtue of her residence on the first floor, can be termed as a neighbour.

2. The entire controversy revolves on the questions whether the installation and running of the press was in violation of the terms of tenancy and whether it is causing nuisance to the appellant's family. The appellant relied on the statement of witnesses and the tenancy agreement between the parties. As the burden of proof was upon the appellant, it is to be examined whether it has been properly discharged by him. The respondent has led evidence to show that previously he had been running the, press in a different locality, but after taking the shop on rent the press was shifted there and he started running it from the year 1965, when the first tenancy agreement was executed. The ejectment application was filed by the appellant in the year 1979. The evidence recorded on behalf of the appellant mainly emphasised on the point that the press was installed in the shop in violation of the declaration made by the respondent to the concerned authorities for which he had been prosecuted. This does not prove that the appellant had not let out the premises for running the press. The learned counsel for the respondent has invited our attention to the agreements of tenancy free translation of the one executed in the year 1966. has been included in the paper book, but the earlier one executed in 1965 has not been included although produced before the Appellate Court. He has produced a copy of this agreement for our examination and both of them seem to be in identical terms. According to this agreement the respondent was permitted to obtain power connection, install electric fittings and sub‑meter for lights and fans at his cost and on vacation of the premises and removal of the fittings the cost of repairs was to be borne by the respondent. There seems to be a difference in the use of terms "electricity" for fan and light and "power" for other purposes. The electricity for light and fan was to be supplied from the main electric meter of the landlord through a sub‑meter, while power connection was to be obtained by the respondent separately and independently with the‑consent of the appellant. In this regard reference has been made to a clause in the agreement according to l which the respondent was to use power till 8‑00 p.m. In fact he was prohibited to use power after 8‑00 p.m., but was permitted to do "office work". This clearly suggests that besides office work, which was permitted to be done even after 8‑00 p.m., the respondent was to carry out work other than office work up to 8 P.M. This was nothing but to run the press up to that time for which power line was obtained by the respondent with the consent of the appellant. According to the Concise Oxford Dictionary, the meaning of the terms "electricity" and "power" are as follows:‑‑ ELECTRICITY: "a form of energy resulting from the existence of charged particles (electrons, protons, etc.) either statically as an accumulation of charge or dynamically as a current; a supply of electric current for heating, lighting etc." POWER: "mechanical or electrical energy as distinct from hard labour; a particular source or form of energy; supply with mechanical or electrical energy." In Ballantine's Law Dictionary, term "power line" has been defined as follows:‑= "An electric line of high voltage, particularly a cross country line carrying electricity from place of production to cities, towns and industrial plants." The words "electricity" and "power" are interchangeable, but where a distinction is made between them, power means electrical energy of high voltage serving industries and employed for heavy duty services, and, "electricity" means energy used for light, fan and other domestic/office appliances. In view of this distinction and the facts of the case, it is fully established that the respondent was running the press in terms of agreement with the knowledge and consent of the appellant. The respondent has been running press from the inception of tenancy without any objection for about fourteen years which clearly suggests that the appellant had agreed and consented to run the press by the respondent in the disputed premises. This finding, therefore, concludes that there was no breach or violation of the terms of tenancy.

3. The next question arises whether running of the press has caused nuisance to the neighbours. The learned Controller has restricted nuisance only to the wife of the appellant, who resides on the first floor of the building and claims to be sick. From the evidence it is abundantly clear that in the locality' and in front of the appellant's building and also on its sides, there are workshops and press. In front of the building there is a flour mill. Therefore, it is a locality in which on the ground floor there are workshops and small factories, while the first floor is used for residential accommodation. In this background the question of nuisance has to be approached.. Section 13 of the West Pakistan Urban Rent Restriction Ordinance, under which application for ejectment had been moved, provides as follows:‑‑ "

13. Eviction of tenant.‑‑(1).............. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that‑‑ (i)

(ii) the tenant has, without written consent of the landlord‑‑ (a) ......................... (b) used the building or rented land for a purpose other than that for which it was leased or has infringed any conditions of the tenure on which the building or rented land is held by the landlord; or (iii) .......................... (iv) that tenant has been guilty of such acts and conduct as are a nuisance to the occupants of buildings in the neigbourhood;

the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land ... .... " The offending acts of the tenant which may amount to nuisance should cause inconvenience to the neighbours. As in the present case the appellant's family is ''residing on the first floor of the building and as held in Mst. Firdous Begum v. Dr. Shamsunnisa (1982 CLC 332), they will be covered by the word neighbours'.

4. The word 'nuisance' has not been defined in the Ordinance nor is it capable of exact definition. It depends upon the facts, circumstances and acts which are committed or omitted by any person on his own land or that of others, creating offending effect, inconvenience, difficulty or damage to the neighbours. Clerk and Lindsell on Torts, 14th Edition, have described nuisance as follows:‑‑ "The acts which constitute public nuisances are all of them unlawful acts. In private nuisance, on the other hand, the conduct of the defendant which results in the nuisance is of itself not necessarily or usually unlawful. A‑private nuisance may be and usually is caused by a person doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbour by (1) causing an encroachment on his neighbour's land, when it closely resembles trespass, (2) causing physical damage to his neighbour's land of buildings or works or vegetation upon it, or (3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land. It may be a nuisance when a person does something on his own property which interferes 'With his neighbour's ability to enjoy his property by putting it to profitable use. It is also a nuisance to interfere with some easement or profits or other right used or enjoyed with his neighbour's land. Nuisances of the third kind, causing an interference with the enjoyment of land, are: creating Stenches by the carrying on of an offensive manufacture or otherwise, causing smoke or noxious fumes to pass on to the plaintiff's property, raising , clouds of coal dust, making unreasonable noises, or vibration, using a building as a hospital for infectious diseases whereby the adjoining ~ owners live in perpetual dread of infection, or using a house for prostitution, causing crowds to collect, watching and besetting a man's house so as to compel him to act in a particular way, causing excessive heat to pass into an adjacent tenement comprised in the same block of buildings, abstracting heat and reducing premises to ' arctic conditions'." It would be advantageous to reproduce the observations of Pollock C.S. from Bamford v. Turnley (31 L.J.O.B. 292), which reads as follows:‑‑ "I do not think that the 'nuisance' for which an action will lie is capable of any legal definition, which will be applicable to all actions and useful in deciding them. The question so entirely depends on the surrounding circumstances. The place where the time, when the alleged nuisance, what the mole of committing it, how and the duration of it, whether temporary or permanent, occasional or continual as to make it impossible to lay down any rule of law applicable to every case, and which wilt be also useful in assisting a jury to come to a satisfactory conclusion. It must at all times be a question of fact with reference to all the circumstances of the case. Most certainly, in my judgment, it cannot be laid down as legal proposition or doctrine that anything, which, under any circumstances, lessens the comfort or endangers the health or safety of a neighbour, must necessarily be an actionable nuisance. That may be a nuisance in Grosvenor Square which would be none in Smithfield Market. That may be a nuisance at mid‑night. That may be a nuisance which is permanent and continual, which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell ringing for some domestic purpose, may be a nuisance if unreasonable loud and discordant, of which the jury alone must judge, but although not unreasonably loud if the owner, from some whim or caprice, made the clock strike the hour every ten minutes, or the bell rings continually. I think that a jury would be justified in considering it to be a very great nuisance. In general, a kitchen chimney, suitable to the establishment to which it belonged could not be deemed a nuisance; but if built in an inconvenient place or manner on purpose to annoy the neighbours, it might very properly be treated as one. The compromises that belong to social life, and upon which the peace and comfort of it mainly depend, will furnish an indefinite number of examples iii which some apparent natural right is invaded, or some enjoyment abridged, to provide for the more General Convenience or necessities of the whole community." In Mst. Firdous Begum's case, Naimuddin, J. (as he then was) after referring to the afore-stated observations, observed as follows:‑‑ "It is difficult to define this term, but from the above‑quoted meanings it will be seen that any act or conduct which causes injury, damage, hurt, inconvenience, annoyance, or discomfort to another in the enjoyment of his respective right of person or property, may constitute nuisance. Something unpleasant or disagreeable would also be covered. But what may constitute a 'nuisance' in a particular case will depend upon many things, such as the type of neighbourhood, the nature of thing or wrong complained of, its proximity to those alleging injury or damage, its frequency of continuity, and the nature and extent of the resulting injury, damage, or annoyance resulting." Reference can also be made to Crump v. Lambert (1867) 3 Law Reports, Equity Cases 409) where Lord Romilly M.R. observed:‑‑ "With respect to the question of law, I consider it to be established by numerous decisions that smoke, unaccompanied with noise or noxious vapour, that noise alone, that offensive vapours alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighbouring property ..... "What constitutes a nuisance is thus defined by Lord Justice Knight Bruce, when Vice‑Chancellor, in Walter v. Selfe 4 De G. & Sm. 322: Both on principle and authority the important point next for decision may properly, I conceive, be thus put: Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort, physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple motions among the English People?"

5. Term 'nuisance' is not capable of any exact definition mainly for the reason that determination of any act as a nuisance depends upon a variety of reasons and considerations. An act may be a nuisance in a particular locality but not in the other, it tray be nuisance at a particular time but not at another time. One has to reach such a conclusion by balancing the conflicting rights and taking into consideration the facts and circumstances of each case and ' not merely by an abstract consideration of the act itself'. The learned Judges and Jurists have evolved a workable criterion that ' nuisance is a condition or activity which unduly interferes with the use or enjoyment of land'. Any act of omission or commission committed lawfully or unlawfully by any person in his own premises which extends to the premises of others causing annoyance, personal inconvenience and interference with his health, comfort and freedom of enjoyment, is termed as nuisance. In determining nuisance it is to be judged with the standard of a normal average and sober man. The Court should also take into consideration the local conditions, surrounding circumstances, and character of neighbourhood. Depending on the circumstances, at times food and flavour, music and melody, fun and frolic may become nuisance. In M/s. Asad Brothers v. Ibadat Yar Khan (F.R.A. No. 868 of 1983) on consideration of the afore-stated authorities, one of us (Saleem Akhtar, J.) observed that smoke, fuel, obnoxious odour and vibration, which materially affect the ordinary and daily life of the neighbours having sober and normal habits, can be treated as nuisance. In Corpus Juris Secundum, Vol. 66, 'nuisance' has been defined as follows:‑‑ "Although the term "nuisance" as been regarded as incapable of precise definition so as to fit all cases, it has also been held to be a term with a well‑defined legal meaning, and in legal phraseology applies to that class of wrong's which arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or for his own improper, indecent, or unlawful personal conduct, working an obstruction or injury to a right of another, or of the public, and producing material annoyance, inconvenience, discomfort, or hurt. 'Nuisance' has been classified as per se and per accidence (in fact). The former is a type of nuisance, which persists and continues as a nuisance at all times under any circumstances regardless of location or surrounding. The latter type is a nuisance, which becomes so by reasons of circumstances and surrounding. The act itself may not be a nuisance, but in the manner it is operated or committed, which adversely affects others, it becomes a nuisance. The determination of nuisance depends upon the circumstances and the local conditions of the locality from where the complaint has been made. In the present day of advancement in technology, commercial and industrial activities, one has to take into consideration such facts while determining the existence of a nuisance. Apart from this, as stated in Corpus Juris Secundum, "locality is a circumstance to be considered in determining the existence of a nuisance or the propriety of granting relief There are some nuisances, in which the act complained of may be wrongful, but constitutes a nuisance only by reason of its location, and there may be an act or condition that is rightful or even necessary, but may, become a nuisance by reason of its location. What might be a, nuisance in one locality, might not be so in nature, and, conversely what might not be a nuisance in one place may become a nuisance in another. Thus, business which might be perfectly proper in a business or manufacturing neighbourhood may be a nuisance when carried on in a residential area, and conversely, a business which with its incidents might well be considered a nuisance in a residential portion of a city or village may not be subject to complaint when conducted in a business or manufacturing locality". While determining the question of existence of nuisance, it is to be considered whether the person is using his property in a manner which is reasonable in the circumstances of the case and whether such reasonable use which may offend a neighbour or interfere with his enjoyment, can be termed as a nuisance. In American Jurisprudence, 2nd Edition, Vol. 58 at page 584, it has been stated as follows:‑‑ "A fair test of whether a use of property constitutes a nuisance is the reasonableness of the use in the particular locality under the circumstances of the case, and the fundamental inquiry in determining whether a lawful business constitutes a nuisance is whether the use to which the property is put is reasonable or un-reasonable. There are no all‑inclusive rules for determining what is a reasonable use of property, and whether a particular use is a nuisance, but each case depends on its own facts end circumstances. The question of what constitutes a nuisance cannot be considered in a vacuum, but the activity must be viewed with regard to the surrounding circumstances. Whether a particular condition constitutes a nuisance depends, not merely upon its inherent nature, but also upon a consideration of all relevant fact, such as the locality and character of the surroundings, the nature, utility, and social value of the use, the extent and nature of the harm involved, the nature, utility, and social value of the use or enjoyment invaded, and the like. The determination of whether an invasion of another's interest in the use and enjoyment of land is unreasonable involves the weighing of the harm done to the plaintiff against the utility of the defendant's use of his property and the suitability of its location. A use of property in one locality may under some circumstances be unlawful, unreasonable, and a nuisance. An invasion of another's interest in the use and occupation of land is not unreasonable merely because it is intentional. The Court should take into consideration public policy, the interests of the community as a whole, and the realization that commercial and industrial progress may require modification of the common‑law right to the use of property. The policy of the law is to achieve a reasonable balance between the peace and dignity of the individual, especially in the enjoyment of his home and community, and the needs of commerce. Activity which constitutes a nuisance if conducted for private gain may not necessarily be a nuisance if conducted for an important public purpose.". Another aspect which should be taken into consideration is that it is not every inconvenience or discomfort which may constitute nuisance. The annoyance or offence should be judged from the standard of a normal human being living in a society or locality. Every trivial annoyance cannot give a cause to the person complaining against it. According to American Jurisprudence at page 613 "the existence of an actionable nuisance depends upon whether the annoyance is such as materially to interfere with the ordinary comfort of human existence. The criterion for determining whether a particular annoyance or inconvenience is sufficient to constitute a nuisance is its effect upon an ordinary reasonable man, that is, a normal, healthy person of ordinary habits and sensibilities, and not its effect upon supersensitive persons, those of too fastidious tastes, those in ill- health, or afflicted with disease or abnormal physical conditions, or persons who use their land for purposes which require exceptional freedom from deleterious influences. On the other hand, the test i$ not the effect on those who are hardened or injured to annoyances or disturbances of the kind in question, and the fact that a majority of the persons living nearer to the nuisance than the plaintiff were not annoyed by it is not conclusive that it would not and did not annoy persons of ordinary sensibility situated as he was." This observation lays down the test to be applied for determining not only the existence, but also the extent of act which may turn out to be a nuisance. The approach has to be made in a practical and normal manner taking into consideration not only the above factors, but also the human needs, the existence of an individual in a society and the public need which may transform the act as grievous or inconsequential. The standard to be applied is neither at the maximum degree nor at the minimum one. It is the average and normal standard of living, habits and enjoyment, which should be the touchstone for determining whether an act is a nuisance.

6. With these principles, it is now to be considered whether the appellant has succeeded in establishing that the commercial activity of the respondent by running a press is causing nuisance to the neighbours. The learned Controller has given a finding that running of the press is not a nuisance ‑to the neighbours, but it is a nuisance to the wife of the appellant as she is sick and is residing on the first floor. The conclusion, therefore, is that it is due to the sickness of the wife of the appellant that the activities of‑the respondent have become a nuisance. The learned Controller had inspected the site‑ and has incorporated his personal observation also and it seems that perhaps he himself did not feel annoyance by the noise and vibration of the press, otherwise he would not have restricted the nuisance only with regard to the wife of the appellant. We may, however, observe that inspection of location by a Court may be necessary and helpful in deciding a case, but surely it should not be substituted as an evidence, which otherwise is required to be produced by a party. No doubt printing establishment may be a nuisance where the noise and vibration from its operation damage or interfere with the use and enjoyment of adjoining property, but mere running of a press is not a nuisance per se, but it may become nuisance because of the manner in which it is conducted and operated. If it is run in a reasonable manner without in any way offending the rights of adjoining property owners, it will not be termed as a nuisance. The question whether noise and vibration constitute nuisance depends upon the circumstances of the case including the locality, the nature of the business, the character of the machinery and the manner of using the machinery. The appellant had given permission to the respondent to run the press, but this will not imply that it should be operated in a manner, which may cause nuisance. The extent and standard of nuisance has to be judged in the light of the principles enunciated above. In the locality there are workshops, machineries, flour mills, etc., in the neighbourhood of the disputed building. The appellant's wife is said to be sick due to which the running of the press has been termed as a nuisance. The illness of the. appellant's wife has been sought to be proved by producing two old medical certificates without examining the doctors or in any manner producing any cogent and substantive evidence of the present state of her health. In these circumstances, the respondent cannot be charged with committing acts of nuisance interfering with the peaceful life of the appellant and his family. The appeal is, therefore, dismissed with no order as to costs: M.B.A./A‑1202/S Appeal dismissed.