1986 PLP 617 (CLC)

The plaintiffs also applied for a temporary injunction against the defendants restraining them from running the machines or Expellers in factory in the premises which are adjacent to the property in occupation of the plaintiffs. A supporting affidavit was also filed alongwith this application under Order XXXIX and rules 1 and 2, C.P.C. This application was filed on 18‑8‑1985 alongwith the plaint and a notice was ordered to be issued for hearing of the application on 22‑8‑1985. On 22‑8‑1985 a lengthy order was passed appointing the Nazir of this Court as Commissioner to visit the site in question and make a report on some points specified in the order. The hearing of the application was adjourned to 1‑9‑1985. This application has been fixed for hearing on several dates and today it has been argued by the learned counsel for both the parties. Mr. Abdul Latif A.Shakoor learned counsel for the plaintiffs has pointed out that the building has been exposed to great hazard on account of the vibrations created by the two machines /engines of capacity of 30 H.P. He has further contended that the engines are run on power without obtaining licence from the K.E.S.C. During his arguments he has also highlighted the inconvenience and discomfort suffered by the plaintiffs which were described in paras. 5 and 6 of his affidavit in the following words:‑‑

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5. That due to defendant's running factory in the adjacent property, the lives of the plaintiffs and their family members have become miserable as for 24 hours the noise of the running of the expellers causes severe vibration in our building as such it has "become unbearable. I say that not only this but also the filthy smell of oil and the water together with smoke discharged from the factory is likely to cause hazard to the health of the plaintiffs and other families living in the locality.

6. That besides the continuous running of machines, is likely to damage the foundation of the plaintiffs building which may result in serious loss of property and human lives in the locality." Mr. Hassan Inamullah learned counsel appearing for the defendants has contested these contentions and has tried to justify the alleged nuisance on the ground that a similar Oil Expelling unit is existing in another shop adjacent to the defendant's shop; that five big roller machines adjacent to the building of the defendant are also functioning since long; that some dye machines are also installed in some shops in the street. He has contended that the Oil Expellers of the defendants are run under a licence and the power consumption has been sanctioned by the Electric Co. as evidenced by the electric bills issued in the name of the defendants. He has denied that the building has suffered any cracks so far. The learned counsel seeking support from the report of the Nazir and particularly relying on paras. 2, 3, 4 and 5 of this report, contends that the vibration caused on account of running of the Oil Expellers is insignificant and so minor that it cannot cause any nuisance nor is of such a volume as to disturb the peace and comfort of the plaintiffs. The learned counsel asserts that the locality where the defendants are running the machines, is a locality for such business and there is no abnormality in the defendants running such a business in his shop. In other words the counsel's contention amounts to saying that the plaintiffs are over sensitive when they complain of such an activity in a semi‑commercial area which they have chosen for the purposes of their residence. There seems to be some force in the contention, of the learned counsel for the defendants. But if these allegations and counter-allegations are examined in depth, it would amount to disposing of the case on merits. At this stage one has only to see whether the newly-created industrial unit admittedly equipped with two electrically operated machines should be allowed to continue or its operation should be suspended till the cause goes to trial and evidence is recorded in the case. There is no doubt that the Nazir's report casually read supports the case of the defendants inasmuch as at the time of his visit he has not found "any dirty water or smoke from property of the defendant on account of running of the machines". The vibrations which he felt in the wooden portion of the gallery of the first floor of the property of the plaintiffs were also of minor nature. But it should not be overlooked that at the time of inspection only one of the two machines was running and it was early afternoon. One can visualise the plight of residents of a residential building/ premises during the dark hours of the night, when two machines /engines of 30 H.P. capacity are in operation in the adjoining rooms. The very fact that this is a case of newly‑created nuisance and the suit itself is for injunction, temporary injunction should be granted to stop the nuisance to ensure peace and sound sleep to the plaintiffs to which they are entitled and which they were enjoying before these machines were installed and this commercial premises were converted into an industrial unit. The learned counsel for the plaintiff has relied on two cases A I R 1930 Sind 310 and 1983 C L C 2356. In the first noted case an injunction was granted to stop a similar nuisance which had resulted in cracks to the adjoining building on account of the operations of similar machines installed in the adjoining premises. It is pertinent to note here that the plaintiffs have also supported their contention by two certificates from Architects namely, Mr.Firozuddin, a building Designer and Mr. Iqbal A. Soomro, Assistant Superintending Engineer. In the first certificate issued by Mr.Firozuddin, dated ,5‑9‑1985, the following portion may be quoted:‑‑

"It is an old building constructed about 20 to 25 years ago, owned by M/s. Jan Muhammad Brothers and occupied by eight tenants namely, Zakaria s/o Haji Jamal and 7 others. It is observed that on Plot No.28/11‑NP‑2, a heavy duty two expellers have been installed which causes vibration and noise. The vibration created by heavy duty grinding machine is likely to cause severe damage to the foundation of the building on Plot bearing No.18/11‑NP‑2, which may result in mishap of human lives in the near future." In the other certificate, dated 8‑9‑1985 issued by Mr.Iqbal A.Soomro the following extract is noteworthy:‑

"I have observed that the machine when it was running at a high speed, was causing severe vibration in the adjacent building on Plot bearing No.8/11‑NP‑

2. If such a machine is allowed to run for sometime, it is likely to cause cracks in the ceilings and walls of the adjacent building." The material brought on the record so far surely makes out a prima facie case in favour of the plaintiffs. In the nature and circumstances of the case the question of convenience and inconvenience caused to the plaintiffs is to be determined by the version of the plaintiffs themselves because it is they, who are spending sleepless nights on account of the newly‑created nuisance. The abovenoted case cited by the learned counsel for the plaintiffs in which the judgment of the original side judge was affirmed, though a little distinguishable, supports the contention of the plaintiff that nuisance either to property or to the person occupying the property should be stopped. The learned counsel has relied on another case 1983 C L C 2356 in which it was held that where the suit itself is for a relief of injunction, the grant of a temporary injunction should be a rule and refusal an exception. I would respectfully concur with this view. In the circumstances, in my opinion, it is a fit case in which the nuisance complained of should be stopped through the injunction prayed for and the relief should be granted in terms of the application, dated 18‑8‑1985 filed by the plaintiffs. H.B.T. Injunction granted.