2001 PLP 1299 (MLD)

"Private nuisance may be described as unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it. Generally, the essence of nuisance is a state of affairs that is either continuous or recurrent, a condition or activity which unduly interferes with the use of enjoyment of land. Not every slight annoyance, therefore, is actionable. Stenches, smoke, the escape of effluent and a multitude of different things may amount to a nuisance in fact but whether they constitute an actionable nuisance will depend on a variety of consideration, especially the character of the dependent conducts, and a balancing of conflicting interest." In Black's Law Dictionary nuisance is defined as under:‑‑ "Nuisance is that activity which arises from unreasonably, 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. Harman v. Cardon, 23 Ariz. App. 78, 530 p.2d 1115, 1118. That which annoys and disturb one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. Nuisance comprehends interference with an owner's reasonable use and enjoyment of his property by means of smoke, odors, noise, or vibration, obstruction of private easements and rights of support, interference with public rights, such as free passage‑along streams and highways, enjoyment of public parks and places or recreation, and, in addition, activities and structures prohibited as statutory nuisance. Awal v. Mc. Colgan, 357 Mich. 386, 98 N.W. 2d 571,

573. A Private nuisance includes any wrongful act which destroys or deteriorates the property of an individual or of a few persons or interferes with their lawful use or enjoyment thereof, or any act which unlawfully hinders them in the enjoyment of a common or public right and causes them a special injury different from that sustained by the general public. Therefore, although the ground of distinction between public and private nuisances is still the injury to community at large or, on the other hand, to a single individual it is evident that the same thing or act may constitute a public nuisance and at the same time a private nuisance." The law of private nuisance as described in Colls v. Home and Colonial Stores, Ltd. (1904) (AC 179 at p.185) is extremely flexible. In Newman v. Real Estate Debenture Corporation Ltd. (1940‑1 All ER), Atkinson, J. speaking of the Bench, said: "As to the complaint of noise, I have no doubt whatever that, that did amount to an actionable nuisance. There were two main sources . of noise. First, the lift shaft, as I have said, was not outside the flats but came up immediately under the end of the plaintiffs' bed room. Of course, it did not affect him while he was in bed because the business stopped at 6‑00 p.m. but during the day it was constantly at work, and these collapsible metal doors, which of course had to open and shut every time the lift was used, and the movement of the lift itself coming up under the floor of the flat, I am satisfied were a source of noise. Then there was the banging of doors. There was the shop door, there was a door on every floor, and apparently the worst door of all was this fire‑proof door half‑way down the stairs to the basement. They were fitted with springs but not springs which controlled or checked them. There were two factors which helped noise to reach the plaintiffs flats. There was a lift shaft, which formed tube which ran up through the whole building, and the borrowed lights running up the sloping part of the stairs on each floor let the noise from each side of the flats on to the staircase. I find that the continual banging of the doors was an inconvenience materially interfering with the ordinary physical comfort of human existence according to plain and sober and simple notions obtaining among English people. I use that language because it is in the leading case of Walter v. Selfe (1851) 4 De G and Sm. 315 at p.322 and was quoted and applied by Luxmoore. I, in Vanderpant v. Mayfair Hotel Co. Ltd. 1930‑1 Ch. 138 at p.165." The aforesaid rules were followed in Dr. Tajuddin Manji v. Societe International De‑Telocommunications Aeronautiques (1983 CLC 295), Mr. Naz Shaukat Khan v. Mrs. Yasmin R. Minhas (1992 CLC 2540) and Dhannalal v. Chittarsingh (AIR 1959 Madhya Pradesh 240). In Dhannalal's case (supra)‑ it was held:‑‑ "(1) Constant noise, if abnormal or unusual, can be an actionable nuisance, if, it interferes with one's physical comforts. (2) The test of a nuisance personal discomfort is the actual local standard of comfort, and not an ideal or absolute standard. (3) Generally, unusual or abnormal noise on defendant's premises which disturbs sleep of the occupants of the plaintiff's house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the plaintiff's house, or which cannot allow the occupants of the plaintiff's house to carry on their ordinary work is deemed to be a notice which interferes with one's physical comfort. (4) Even in a noisy locality, if their is substantial addition to the noise by introduction of some machine, instrument, or performances at defendant's premises, which materially affects the physical comforts of the occupants of the plaintiff's house then also the noise will amount to actionable nuisance. (5) If the noise amounts to an actionable nuisance, the defence that the defendant is making a reasonable use of his own property will be ineffectual. No use of one's property is reasonable if it causes substantial discomfort to other persons. `if a man creates a nuisance' said Kekewich, J. in Attorney‑General v. Cole & Son, 1901‑1 Ch. 205 at p.207. He cannot say that he is acting reasonably. The two things are self‑contradictory. (6) If the defendant is found to be carrying on his business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards them, and may be restrained by injunction, although he may be conducting his business in a proper manner and according to rules framed in this behalf either by the Municipality or by the Government. The latter defence can be effective in a case of public nuisance, but not in that a private nuisance. (7) If an operation on the defendant's premises cannot by any care and skill be prevented from causing a private nuisance to the neighbours, it cannot be undertaken at all, except with those injured. (8) The right to commit a private nuisance can, in certain circumstances, be acquired either by prescription or by the authority of a statute."

4. Applying the above enunciated rules to facts and circumstances of the case in hand, it is quite clear that almost house of petitioner is at a distance of 10 to 11 feet from the house of respondent's that the petitioners had installed two heavy football pressing machines which were/are run by two electric motors. There is sufficient evidence on the record that the I working of these machines created/creates so much noise that it interfered/interferes with the comfort and amenities of life in the house of respondents/plaintiffs. P.W.3/Tippu Sultan appeared in witness‑box and supported the contents on oath. He firmly stated that the pressing machines, when in operation. created noise and vibrations which disturbed his studies; that he failed in his examination; that foundation of their house had been shaken. He was subjected to lengthy cross‑examination and nothing was extracted to demolish his evidentiary value. Rana Nasrullah, Advocate/Local Commission, appeared in witness ?box as R.W.1. He proved his report Exh.R.I. The perusal of Exh.R.I indicates that petitioners had installed two electric pressing machines in order to cut footballs; that the aforesaid locality had become commercial and the ground‑floors were/are being utilised for manufacturing footballs, that the noise and vibrations created by these machines caused physical and mental discomfort to the respondents; that the living in respondents/plaintiff's house was impossible; that the vibrations were slight and did not impair the house. Muhammad Siddique, one of the defendants, appeared as D.W.1. He even could not controvert that the aforesaid machines created vibrations and a very abnormal noise. The learned appellate Court was eminently correct and justified in coming to conclusion that the noise and vibration created the machines installed in the house of the petitioners were so abnormal and intense that if constituted a perennial actionable private nuisance; that it caused the physical and mental discomfort to the occupants of the house and affected the structure of respondents/plaintiffs' house. This view, taken by the learned appellate Court, is just, correct and in consonance with material on record. The same does not suffer from any jurisdictional or legal error calling for any interference in revisional jurisdiction by this Court.

5. For the aforesaid reasons, this civil revision is totally devoid of any merit and is dismissed with costs. H.B.T./M‑556/L????????????????????????????????????????????????????????????????????????????????? Petition dismissed.