The plaintiff filed a case in the District Court claiming that the defendant was building a structure about 3 feet from her 
property line. This building, according to the plaintiff, would be a bakery and hotel, which would cause her and her family problems such as discomfort and health issues. She argued this would be a nuisance.
Several months later, the plaintiff changed her complaint. She wanted a Court order stating the defendant has no right to build or run a bakery and/or hotel on her property. She also wanted a permanent injunction, a Court order forcing the defendant to stop building or running a bakery and/or hotel permanently.
The defendant responded by submitting the building was already completed and approved by the relevant authorities. He had a licence to operate a bakery, also obtained from the proper authorities.He had been running the bakery since April 1972, with a proper licence.
Based on the arguments, the Court had to answer several questions (called issues):Does the land in question belong to the plaintiff, as she claims? Would the bakery and/or hotel cause a nuisance to the plaintiff, as she claims? Did the bakery and/or hotel violate any rights of the plaintiff?
If the answer to any of the above questions is yes, can the plaintiff get what she asked for in their amended complaint (Court order and injunction)? Was the plaintiff just worried (apprehension) or taking legal action before something bad happened (quia timet)? [Quia timet is a legal concept].
If the answer to question 5 is yes (worry or preventative action), can the plaintiff still win the case? Regardless, was the construction of the bakery legal? Regardless, is the bakery operating legally now? Even if the answer to questions 7 and 8 is yes (legal construction and operation), can the plaintiff still sue?
The Court decided in favor of the plaintiff on questions 1, 2, and 3. This means the Court agreed the land belonged to the plaintiff, the bakery/hotel would cause a nuisance, and the plaintiff’s rights were violated.
The Court granted the plaintiff what they requested in their amended complaint (Court order and injunction).
The Court also agreed with the defendant that the plaintiff might have been worried or taking preventative action, but she could still win the case. Finally, the Court held that even though the bakery was built and was operating legally, the plaintiff could still sue because of the potential nuisance.
The defendant disagreed with the Court’s decision and appealed the judgement in the Court of Appeal.(Arlis Appuhamy v. Kahavidane – SLR – 493, Vol 2 of 1983 [1983] LKCA 21; (1983) 2 Sri LR 493 (25 March 1983)).
Both the plaintiff and the defendant live in an area zoned residential since 1960. The plaintiff has lived there since 1963.
The plaintiff complains about issues from the defendant’s bakery located 10 feet away such as smoke entering their house, black and lingering for over 15 minutes, happening multiple times a day. Constant noises from trays being used in the bakery and issues due to the smoke and sleep disturbance due to the noise were also cited.
The plaintiff’s testimony was supported by a witness and a doctor who confirmed the smoke and noise could cause discomfort and health problems.The defendant didn’t challenge this evidence in Court.
The defendant appealed the Court’s decision, arguing that the lawsuit is based on a “quia timet” action, meaning the plaintiff is worried about a future nuisance, not one that already exists. Because of this, the plaintiff shouldn’t be entitled to the injunction she received, it was argued in the Court of appeal.
The Court agreed the lawsuit is based on a “quia timet” action, meaning the plaintiff was worried about a potential nuisance.However, the court disagreed that this automatically makes the lawsuit invalid.Court citeda case in judgement (Attorney-General v. Corporation of Manchester) where an injunction was granted to prevent a future public nuisance (a hospital for smallpox patients).
The principle, according to the Court, is that the plaintiff must show a strong possibility that the future harm will actually occur. The defendant cited other cases to argue that in “quia timet” actions, the plaintiff shouldn’t be entitled to the relief granted by the lower Court (injunction).
The Court distinguished the case under review from the ones cited by the defendant.in the cited cases, the plaintiffs’ fears weren’t based on any concrete threats or actions by the defendant. In this instance, the bakery was already built and operating, creating a real possibility of causing a nuisance.
In the cases cited by defendant appellant (Naganathar v. Velautham 55 NLR 426, Selvam v. Kuddipillai 55 NLR 426, Fletcher v. Beally), the plaintiffs’ fears weren’t based on real threats or actions by the defendant.For example, in Fletcher v. Beally (28 Ch. Div. 688) the potential pollution from a nearby factory was years away, and the factory owner might find ways to prevent it.
The Court disagreed with the defendant’s interpretation of those cases.Defendant’s counsel submitted that Courts can grant relief in “quia timet” actions if the plaintiff’s fears are well-founded and reasonable, citing Attorney-General v. Corporation of Manchester( [1983] 2 Ch. 87) . Counsel emphasised the importance of considering the specific facts of each case.
Even though the bakery wasn’t built yet when the lawsuit was filed, it was built soon after and caused a nuisance.
The evidence of smoke, noise, and health problems confirmed the plaintiff’s initial fears were justified.This evidence, even though presented after the lawsuit was filed, was relevant because it shows the plaintiff’s concerns were reasonable, Cout held in judgement.
The judgement states: “There is clear evidence that the smoke and the noise emanating from the bakery, caused inconvenience to the plaintiff and was injurious to her comfort and health. These facts are very relevant to show that the apprehension entertained by the plaintiff, as at the date of the institution of the action, was justified and her fears were well founded.”
The defendant argued that having permits for the building and bakery business protects him from lawsuits.The Court disagreed, stating that these licenses don’t give the defendant-appellant the right to create a nuisance. One permit even explicitly stated it doesn’t affect the rights of neighbouring property owners.
The Court of Appeal for the most part upheld the lower court’s decision and the injunction against the bakery. However, the Court clarified that the injunction only applies to the bakery, not the hotel, because the evidence only showed problems from the bakery. Subject to the variation about the hotel, which could continue to operate, the appeal was dismissed with costs.
