P L D 1963 (W (PLP)

(b) that even if section 11 expressly was not applicable, the subsequent application was barred by general principles of res judicata; and (c) that the grant of temporary injunction was in flagrant disregard of the basic principles of the balance of convenience or inconvenience, and the loss to be occasioned thereby. The balance of convenience was in favour of his clients and that by grant of a temporary injunction he was bound to suffer an irreparable loss

6. As to the first contention that the subsequent application for temporary injunction was barred by res judicata, I do not find any force in this. The first injunction was granted on the 11th April 1962, when the present petitioners were not parties to the suit. They were impleaded for the first time on 26th November 1962. That being so, when the decision on the first petition was not inter partes, the principle of res judicata could not be it

invoked. It is, no doubt true, that the petitioners subsequently participated in the proceedings and also made an application for vacation of the stay, order and were heard on 6th July 1962, when the injunction was vacated, yet this will not make any difference as they participated in the proceedings without having been impleaded as parties.

7. Even if it be assumed that the order dated 6th July 1962 was inter partes, a question still arises whether the petitioners can successfully raise a plea of res judicata under section 11, Civil Procedure Code. It is not denied that section 11 of the Code of Civil Procedure was not applicable to supplemental proceedings like temporary injunction before the amending Ordinance XLIV of 1962 was enacted and the Code of Civil Procedure was amended adding Explanation VII to section 11, which reads as under:‑ "In this section the word suit shall mean a suit or proceeding (including execution proceeding) in a Court of civil jurisdiction and, within the same proceeding, a stage of that proceeding ending in an order'". It was contended that the word 'suit' used at the main provision of section 11 would also mean a proceeding in a Court of civil jurisdiction and within the same proceeding a stage of that proceeding ending in an order. Will it, however, mean that the word `proceeding' was used in the sense to include a supplemental order mentioned in section 94 of the Code of Civil Procedure? If we only substitute the word `proceeding' instead of the word `suit' in section 11, we would find that such an interpretation is inconceivable, and the main provision of section 11 could, in no circumstance, be attracted to it. Before section 11 can be invoked, it is necessary that there should be a matter directly and substantially in issue in the earlier suit or proceeding, as the case may be, and besides other conditions, the parties should be litigating under the same title in a Court competent to try the subsequent proceeding. There can be no denying the fact that in au application for a temporary injunction, there is no issue involved. As to what the `issue' is, one has to refer to Order XIV, rule 1, which says that "issues arises when a material proposition of fact or of law is affirmed by the one party and denied by the other", and "material propositions are those propositions of law, or fact which a plaintiff must allege in order to show a right to sue or a defendant must alleged in order to constitute his defence" Applying this test, it will be clear treat there is no issue involved in a matter like: temporary injunction and, for that reason the word 'proceeding' used in Explanation VII is not used with a view to including the supplemental proceedings as well.

8. The word 'proceeding' used therein, in my opinion, is applicable only to original matters in the nature of suits; pro ceedings in probates, guardianship and so forth. To these proceedings section 11 did not apply and whenever a question arose if an earlier decision was not binding between the same parties in any subsequent proceeding, the objection as to the non‑application of section 11 always prevailed, because it applied specifically to suits, and the Courts, therefore, had to resort to the general principles of res judicata. To overcome such a diffi culty it seems the Legislature incorporated Explanation VII. There appears to be other intention behind the amendment of section 11

9. The word `proceeding' in Explanation VII, moreover, has not been used for the first time in the Code of Civil Procedure. The Procedure provided in this Code is mainly in regard to suits;, and by virtue of section 141 the same procedure can be made appli cable in all proceedings in any Court of civil jurisdiction. Section 141 reads as under: "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Provided that where the Court is of opinion that conformity with any requirement of such procedure is unnecessary and will cause avoidable expense or delay it may dispense with it or adopt it in such modified form as it thinks appropriate in the circumstances of the case." The word `proceeding' has been subjected to interpretation in respect of different matters arising before the Civil Courts. There is a consensus of opinion by all the Courts that execution proceedings are not proceedings within the meaning of section 141 and the basis for this interpretation is that section 141 applies only to proceedings which are original matters and are in the nature of suits. In interpreting section 141 their Lordships of the Privy Council in Thakur Pershad v. Sheikh Fakir Ullah and another (22 I A 44), observed as follows:‑ "Their Lordships think that the proceedings spoken of in section 647 [this section was like section 141 of the Civil Pro cedure Code (V of 1908)] include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions". A similar view was taken in Seth Ram Gopal v. Lala Shand Lal (A I R 1942 All. 85) where it was held that though proceedings for restitution are not proceedings in execution, they are not original proceedings and so this section does not, apply to them. It is a cardinal principle of the Interpretation of Statutes that when a word used in an Act has been interpreted in a particular manner and the Legislature subsequently uses the same word in the same statute, it could be understood to mean that the Legislature used it to mean the same as it was interpreted earlier. I am, therefore, of the opinion that the word `proceeding' in Explanation VII only applies to the original proceedings like grant of probate, letters of administration, proceedings under the Guardians and Wards Act or proceedings under the Companies Act, applications to file agreements under section 20 of the Arbitration Act to refer to Arbitration, a reference to the Court under the Land Acquisition Act of 1894, proceedings to compel registration, applications to sue in forma pauperis; proceedings under the Lunacy Act, and to proceedings under the Divorce Act, etc. These matters have been considered to be proceed within the meaning of section 141, Civil Procedure Code. I have, therefore, no hesitation in repelling the contention of the learned counsel for the petitioners and hold that section 11, C.P.C. does not apply to the supplemental proceedings under section 94 of the Code of Procedure, because they are original matters in the nature of suit, and otherwise do not involve any adjudication of rights of parties.

10. It was next contended by the learned counsel for the petitioners that the fresh petition for injunction was, at any rate, barred by the general principle of res judicata. He relied on Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh and others (A I R 1924 P C 202). In this case the decree‑holder consented to the appointment of a receiver to the judgment‑debtor's property but shortly after such appointment he applied for discharge of the receiver. Their Lordships of the Privy Council dismissed the application and held that this decision operated as a bar to the trial of a second application for receiver's discharge and the binding force of such a judgment depended not upon section 11, but upon the general principles of law. He also relied on Mahant Baldeo Dass v. Malik Dharam Chand (A I R 1946 Lah. 462). In this case an appeal from an order appointing a receiver during the pendency of the suit was dismissed. The Court ordered the delivery of possession of the property to the receiver. Against this order an appeal was preferred and the order appointing the receiver was challenged. It was held that the order of appoint ment of the receiver could not be challenged in this subsequent appeal. This decision is of no assistance to the petitioners. No question about principles of res judicata was involved. Reliance was also placed on A I R 1926 P C 23, where the general principle of res judicata was applied to execution proceedings. I have no reason to differ from the view held by their Lordships of the Privy Council. Section 11 indeed is not exhaustive of the general doctrine of res judicata. Where circumstances other than Procedure those provided for in section 11 of the Code of Civil exist, the principle underlying the rule of res judicata may be invoked in a proper case without recourse to the provisions of this section. This is a cardinal principle of law based on the maxim that no person should be twice vexed over the same cause of action and that there should be an end to litigation. If an application for temporary injunction is refused and another application is presented on the same grounds, I have no doubt that the Courts will not hesitate to dismiss the sub sequent application, but in a case where the fresh application made on the facts and circumstances which are different from those which existed earlier and were relied upon, a question arises whether it will be open to the Court to reconsider the application in the light of the changed circumstances. The learned counsel for the petitioners argued that even in such an event the Court had no jurisdiction to grant a temporary injunction. This seems to be an untenable argument. There is no manner of doubt as to the proposition that where a Judge has declined to entertain an application for the grant of a temporary injunction, the successor of that Judge can go behind that order in the new circumstances that may have arisen and if the exigencies of the case require it. I am supported in my view by Ishar Das v. Bhaion Ki Dokan (A I R 1940 Lah. 39).

11. A question therefore arises whether new facts and circumstances existed in this case as so to warrant a fresh order by the trial Judge. It is not disputed that in the earlier suit there was no prayer on behalf of the plaintiff to restrain the defendants from working the brick‑kiln. The suit was only for a permanent injunction restraining them from installing or constructing the brick‑kiln. Since the brick‑kiln had started functioning and the suit was only to restrain the defendants from constructing or installing a brick‑kiln, the Court considered that a temporary injunction could not be given. The plaintiff under the circum stances was rightly held not to have a prima facie case. To overcome this objection, the plaint was amended with the permis sion of the Court after notice to the defendants had been issued and a prayer was included for a permanent injunction restraining the defendants from working the kiln. This was a change of circumstances and could enable the Court to reconsider the matter. The other new circumstances brought on the record were that the licence of the petitioner which were for working the kiln had expired and there was no renewal by the Lahore Municipal Corporation. This fact is not denied by the petitioners either. This is also not disputed that the petitioners cannot legally operate the kiln without a licence from the Corporation. In pursuance of the provisions contained in section 396 of the Corporation of the City of Lahore Act, the Corporation had framed bye‑law in this behalf which were sanctioned by the Punjab Government vide Notification No. 413 C.R.44/30605, dated the 15th of April 1944, as subsequently amended from time to time. Bye‑law No. 1 reads as under:‑ "The owner or occupier of any premises used for the purposes of carrying on the trade . . . mentioned in bye law 4 or . . . . . which in the opinion of the Chief Execu tive Officer is dangerous to life, health or property or likely to create a nuisance either from its nature or by reason of the manner in which or the conditions under which the same may be carried on, . . . . . shall on or before the first day of July in every year apply to the Chief Executive Officer for a license in respect of such place. No such trade or operation shall be carried on and no .such article .shall be stored or kept without a license. Bye‑law No. 4 (V) reads as:‑ "4 (1) The following trades are operations are prescribed under section 217 (c) of the City of Lahore Corporation Act, 1941, as dangerous or likely to create a nuisance; (V) making or manufacturing charcoal, surkhi, bricks, tiles, or earthenware pots or other earthenware by any process of baking or burning." A violation of these bye‑laws is punishable under the Corporation of the City of Lahore Act. This Act was repealed by the Municipal Administration Ordinance, 1960, but by virtue of section 128 of this Ordinance, all the bye‑laws which are consistent with the provisions of the Ordinance continue to operate. The provision for controlling nuisance is contained in item No. 9 of Schedule V of the Act. The bye‑laws being perfectly consistent with the scheme of the Municipal Adminis tration Ordinance, 1960, are still a valid law. The petitioners, therefore, have no right to work the kiln under the law and any operation by them of the brick‑kiln will, under the circumstances be an illegal act. By the grant of an injunction, no legitimate loss, therefore, occasioned to them. As to the loss of the plaintiff‑respondent, there is a letter of the Director of Agriculture to show that the working of brick‑kiln is injurious to the orchards, especially the mango trees. These facts would also show the balance of convenience in favour of the plaintiff -respondent.

12. It was further contended by the learned counsel for the petitioner that the act of the petitioners could not amount to an illegal nuisance because they had the right to carry on a legitimate trade on the land which belonged to them and in which they had vested right. It was, therefore, claimed that since the plaintiff ‑respondent did not have any right in him, he could not complain of a wrong, and as such, his grievance was not action able. The objection is equally untenable. An action can be brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property. Case of the plaintiff respondent is that the fumes and smokes discharged by defendant petitioners over his gardens cause a serious growing and permanent injury to his gardens; the injury being of continuous nature. Whether or not the allegation is correct, there is no manner of doubt as to the fact that a suit for an injunction to restrain the continuance of the nuisance is competent because it is not possible to measure the damage thereto occasioned with any certainty. In Wood v. Conway Corporation ((1914) 2 Ch. 47), Buckley, L. J., observed as follows:‑ "If the owner of property, be it a house, or a garden, or a park, or anything else, not necessarily a house or structure is so substantially injured in the reasonable enjoyment of his property as that he sustains that which is equivalent to a legal nuisance he is entitled to an injunction to restrain the con tinuance of the nuisance:" Similar view was held in St. Helen's Smelting Co. v. Tipping ((1865) 11 H L C 642). In that case, A brought an action against B for an injury done to the trees, shrubs, etc., on A's, land by the vapours, etc., exhaling from B's smelting works. The jury found that A's property had been injured by such vapours, etc. It was held by the House of Lords that B was liable for this injury, notwith standing the fact that the smelting was an ordinary business carried on in a proper way and in as good a manner as possible. I may also refer with advantage to the observation in Crump v. Lambert ((1867) L R Equity 409 at p. 413) which is as under:‑‑ "The owner of one tenement cannot cause or permit to pass over, or flow into, his neighbour's tenement any one or more of these things in such a way as materially to interfere with the ordinary comfort of the occupier of the neighbouring tenement, or so as to injure his property. It is true that by lapse of time, if the owner of the adjoining tenement, which, in case of light or water, is usually called the servient tenement, has not resisted for a period of twenty years, then the owner of the dominant tenement has acquired the right of discharging the gases of fluid, or sending smoke or noise from his tenement over the tenement of his neighbour; but until that time has elapsed, the owner of the adjoining or neighbouring tenement, whether he has or has not previously occupied it, in other words, whether he comes to the nuisance or the nuisance comes to him, retains his right to have the air that passes over his land pure and unpolluted, and the soil and produce of it uninjured by the passage of gases, by the deposit of deleterious substances, or by the flow of water. And the doctrine suggested in Hole v. Barlow that the spot from whence the nuisance proceeded was a fit, proper, and convenient spot for carrying on the business which produced the nuisance, is no excuse for the act, and cannot be made available as a defence either at law or in equity." The present suit, on the allegations made in the plaint, is, therefore, competent. It will be, however, for the trial Court to determine if an actionable nuisance, in fact, is caused by the defendant and he will have to look at it from a reasonable point of view bearing in mind that the law does not regard trifling and small inconveniences but only regards sensible inconveniences which sensibly diminish the comfort enjoyment, or value of the property which is affected. It was also contended on behalf of the petitioner that there were other brick‑kilns installed in the neighbourhood and plaintiff‑respondent cannot complain of any wrong by installation of the brick‑kiln by the defendant‑petitioners. It was not denied that this kiln was nearer to the plaintiffs' gardens in point of distance than the other brick‑kilns. This fact, otherwise, cannot exempt the petitioner from liability and it was held in St. Helen' Smelting Co. v. Tipping referred to above as: "Where no right by prescription exists to carry on a particular trade, the fact that the locality where it is carried on is one generally employed for the purpose of that and similar trades, will not exempt the person carrying it on from liability to an action for damages, in respect of injury created by it to property in the neighbourhood."

14. The learned trial Court and the learned District Judge, in my opinion, have considered all aspects which were necessary for deciding the application under Order XXXIX, rules 1 and 2 of the Civil Procedure Code and I find nothing wrong with their orders to warrant an interference under section 115, C. P. C.

15. The contention, therefore, has no force. In the view of the matter, I take, the petition is dismissed with costs. K. B. A./A. H. Petition dismissed.