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Petitioner: FAZLUR REHAM VS Respondent: YOUNUS ALI GILANI and 9 others
Court Name: Sindh High Court Judge(s): Rasheed A. Rizvi Title: FAZLUR REHAM vs YOUNUS ALI GILANI and 9 others Case No.:Suit No,826 of 1996, Civil Miscellaneous Applications Nos. 4415, 6191 of 1996
and Nos. 660, 3411, 3720 of 1997 Date of Judgment:1998-02-06 Reported As: 1999 MLD 1565 Result: Order accordingly Judgment ORDER ' These are five applications filed by the parties, which I intend to deal with this common order.Firstly, C.M.A. 4415/96 is filed by the plaintiff seeking injunction against defendants Nos. 1 & 2 restraining them from raising any construction on the suit property bearing No,144-A, Block S, PECH Society, Karachi, (hereinafter referred to as the "suit property") and against defendants Nos.3 to 7, restraining them from regulsrising the illegal construction raised in violation of the approved plan on the suit property. Secondly, C.M.A. 6191/96 is again filed by the plaintiff, under Order XXXIX rule 2(3) C.P.C. Read with section 3/4 of the Contempt of Court Act, with the prayer that appropriate legal action may be initiated against defendants Nos. 1 & 2 of committing contempt of this Court. Thirdly, C.M.A. 6609/97, which is filed by defendant No,1 seeking permission of this Court to enter and reside in the suit property. Fourthly, C.M.A. 3411/97 is again filed by defendants under order VII rule 11 C.P.C. Praying for rejection of the plaint. Lastly, defendant No,1 has filed an application with an undertaking (C.M.A. 3720/97-similar to C.M.A. 660/97. First, I would like to deal with the application under Order VII rule 11, C.P.C. (C.M.A. 3411/1997). ' This is a suit for declaration as well as for prohibitory and mandatory injunctions, filed by the plaintiff, who is residing in House No,145-E, Block 2, PECH Society, Hali Road, Karachi. It is claimed in the plaint that he is residing in front of suit property and that the defendants Nos. 1 & 2 are carrying on illegal construction of a commercial building on the suit property in violation of the approved plan; that such construction violates the vested and easementary rights of the plaintiff as well as of the other residents of the same area ; that such construction of commercial building will cause nuisance, traffic jams and pollution in the vicinity where the plaintiff is residing, as a consequence
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of which the Plaintiff and other residents would suffer discomfort and injury. It is specifically alleged in paragraphs 4 and 5 of the plaint that the defendants-builders have encroached upon the compulsory open space and are carrying out illegal construction on the suit property and that the defendant No,3 namely, Karachi Building Control Authority ("K.B.C.A") has sealed the suit property. It is further alleged in the plaint that the defendant No,1 filed a suit in this Court hearing Suit No,421/1996 against K.B.C.A. For declaration and permanent injunction and as a result of site inspection, conducted by the official Assignee, under the order of this Court, it was reported that the defendant No,1 had encroached upon the compulsory open spaces. A copy of such report has also been filed alongwith the plaint. In paragraph 7 of the plaint it is further alleged that the defendant No,1 and others, after illegally removing the seal, imposed by the K.B.C.A., are again raising construction at a high speed. In the background of the aforementioned facts, the plaintiff has prayed for the following reliefs:- (a) Declaration that the construction of the building by the Defendants Nos. 1 and 2 on the suit plot No,144-A, PECHS, Block 2, Karachi, is illegal and in violation of the approved plan and building laws and regulations. (b) Permanent injunction against the defendants Nos. 1, 2 and 3, their agents, attorneys, representatives, workers, labourers, any person (s) acting under or through them restraining them from raising or carrying out any construction and or doing any other work in respect of the construction on the suit plot No,144-A, PECHS, Block 2, Karachi. (c) Permanent injunction against the defendants Nos. 3 and 7, their subordinates, officers or any person (s) acting under or through them from regularising the illegal construction being carried out in violation of the approved plan on the suit plot in any manner whatsoever. (d) Direct the Defendant No,3 to demolish the illegal construction being carried out by the Defendants builder on the suit plot. ' Syed Sami Ahmed has challenged maintainability of this suit on the ground that the plaintiff is not entitled for declaration, which is contrary to the provisions of section 42 of the Specific Relief Act, 1877 ("Act I of 1877"). It was submitted that injunction is to be granted strictly in accordance with the provisions of sections 54 and 56 of the Act, 1877. He has further argued that no cause of action is available to the plaintiff to maintain this suit since he is residing some 80 feets away from the suit property and, therefore, he cannot maintain a claim of easementary right against defendant No, 1. In support of his contention that this suit is barred by section 42 of the Act, 1877 he has referred to the famous case of Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 113). Syed Sami Ahmed has forcefully placed reliance on paragraph 36 of the said judgment, which reads as follows:-- "36. It is clear from these authorities that section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved, the suit is not maintainable. The suit must be one which must bring benefit to him in regard to these two rights. No suit involving any other right, hypothetical or abstract would be competent under that section. The Court will not, therefore, entertain suits in which no benefit accrues to the plaintiff or where the plaintiff sets up merely an abstract right to satisfy his ego or satisfy his grudge against another person. Section 42 cannot be invoked in matters of mere sentiments which have no concern with the vindication of the plaintiffs' title to status and property." ' In reply, Mr. Abid S. Zuberi has referred to the case of Suleman Mala v. Karachi Building Control Authority and 3 others (1990 CLC 448) which arises as a result of filing of a Constitutional petition before a Division Bench of this Court. It was held, inter alia, that "Where rights in strict legal sense are involved, remedy for transgression may be through civil suits, or, if necessary, in Constitutional jurisdiction but where mere interest occasion a grievance the aggrieved party may not qualify to
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successfully maintain a suit." In the instant suit plaintiff is not seeking any declaration pertaining to the suit property, which undisputedly belongs to defendant No,1, although there is no direct relief prayed by the plaintiff as to his legal character or status in respect of his property owned by him. But in the body of plaint, it is suggested that as a result of construction being raised on the suit property, the plaintiff's property is likely to suffer adversely. However, a prayer clause is not to be read in isolation and divorced from the case set-up by the plaint It is settled law that it is the substance of a plaint which is to be looked at and not the form in which it is drafted. The Courts are not restricted to the consideration of the prayer clause of the plaint while dealing with an application under Order VII rule 11, C.P.C. (If any reference is needed see Hasna Hena Akhtari Begum v. Dacca Improvement Trust and others (PLD 1969 Dacca 82) and Din Muhammad and 6 others. v. Mehar Ali Khan and 2 others (PLD 1978 Karachi 21). Recently, it was held by the Hon'ble Supreme Court that while considering an application of instant nature when the Court has not recorded any evidence in the suit, only averments made in the plaint are to be considered. The Courts are not permitted to consider pleas raised by the defendant in suit in his defence. But any other material apart from the plaint which is admitted by the plaintiff can also be considered while rejecting the plaint under Order VII Rule 11 C.P.C. (See Jewan and 7 others v. Federation of Pakistan and 2 others (1994 SCMR 826). In the plaint, the plaintiff has pleaded violation of his easementary rights as well as creation of nuisance, which, if accepted to be true, would adversely affect the immovable property owned by him. It is under such circumstances that he becomes entitled to a right to his property to maintain and enjoy the same in proper environment with better facilities and in good surroundings. Any act committed by the defendants, which adversely affects the plaintiff's right to enjoy and maintain his property as guaranteed to him by the covenant of the lease will definitely give a rise to the cause of action to maintain a suit. The plaintiff's claim for easementary rights and his apprehension that nuisance will erupt as a result of proposed construction and its denial by the defendants are all matter of proof and not liable to be dismissed in a summary manner. Prima facie, plaintiff has succeeded in establishing the fact that the construction was being raised on the suit property in gross violation of the approved building plea which gives a cause to the plaintiff to maintain this suit. I am of the considered view that the plaint is not liable to be rejected on the grounds of either section 42 of the Act, 1877 or on the ground of lack of cause of action. The Second objection of Syed Sami Ahmed pertains to section 91 of c C.P.C., which prohibits filing of a suit in respect of public nuisance without first obtaining permission from the Advocate-General. Section 91 of C.P.C. Reads as follows:-- "91. Public nuisances: (1) In the case of a public nuisance the Advocate-General, or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions." It was argued by Syed Sami Ahmed that unless a consent, in writing, is obtained from the Advocate-General, as provided under section 91 of C.P.C., no suit could be brought on the ground of public nuisance. He has relied upon paragraphs 3 & 8 of the plaint, where it is claimed by the plaintiff that the construction on the suit property is not only violative of the easementary and rested rights of the plaintiff but it also violates same rights of other residents of he area and that the proposed construction on the suit property will cause nuisance and will also infringe their rights to enjoy the civic amenities. He has referred to the case of Zarif Ahmad Khan and 3 others v. Province of the Punjab and Another (1986 SCMR 684), where a suit was filed by the petitioner in a representative capacity seeking an injunction against the proposed auction of a site adjoining to locality where they resided and which was being auctioned for he purpose of mines for excavating
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stones. The plaint in that suit was rejected under Order VII Rule 11 C.P.C., which order was maintained by all the Courts. An objection was pleaded by the respondents about the competency of such a suit in view of section 91, C.P.C. Leave to appeal was refused and the petition was dismissed by the Hon'ble Supreme Court with the following observations:-- ' "We have examined the contents of the plaint with the assistance of the learned counsel for the petitioners and concur with the findings recorded by the Courts that in substance it is a case of public nuisance rather than of private nuisance. On that assumption, sanction prescribed under section 91 of the C.P.C. Was essential and the suit was not competent without it. If, however, the petitioners feel that it is a case or it can be a case of personal nuisance confined to a locality or a smaller group not identifiable with the public in general then the rejection of the plaint does not preclude them from recasting the grievance so as to make to competent under the law." ' the case of Zarif Ahmad Khan (supra) reference was also made to the case Muhammad Bashir and 5 others v. Allah Dad and Another (PLD 1980 Lahore 41), Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi (PLD 1976 C 785) and Pakistan National Oils Ltd and another v. Sattar Muhammad (1980 SCMR 686). This view was followed by a Division Bench of this Court in the case of Muhammad Hanif Rajput v. The District Judge Karachi East and another (C.P. No,D- 123/1989) wherein a Constitutional petition was filed, challenging the judgment dated 21-11-1988, passed in Civil Revision by the District Judge, with the prayer that the plaint in suit, filed in the Court of VIIth Civil Judge, Karachi (East), by the respondent No,2, be rejected under Order VII Rule 11, C.P.C. One of the grounds raised by Syed Sami Ahmed, who was appearing for the petitioner in that case, was that the suit was hit by provisions of section 91 C.P.C. The petition was allowed and the plaint in suit was rejected while following the rule laid down in the case of Zarif Ahmed Khan (supra). After examining the plaint in that suit, it was found to be. a case of public nuisance. It was held that the sanction under section 91 of the C.P.C. Was essential and the suit was, therefore, not competent in absence of the same. In the instant case, I have already observed that plaintiff has based his suit on multiple causes of action including questions of private as well as public nuisance. I am afraid that plaint cannot be rejected in part even if it is held, for the sake of argument that a case of public nuisance is made out. ' In Pakistan National Oils Limited (supra) the trial Judge partially decreed the suit of respondent, which was filed for mandatory injunction, seeking direction for demolition of a petrol pump illegally erected in front of the plaintiff's property. The said appeal was allowed by the Lahore High Court, against which petition for seeking Leave to Appeal was filed before the Hon'ble Supreme Court, where, it was held, inter alia, that upon the facts of the case and quite apart from the fact whether the construction of the said petrol pump amounted to a public nuisance, the respondent/plaintiff had entered in an independent cause of action to seek the removal of the said illegally constructed petrol pump and that the act of defendants from depriving the plaintiff of the view or prospect form his windows was an act wrongful in itself. The appeal was partly allowed by the Hon'ble Supreme Court, but the damages awarded to the respondent by the Lahore High Court were set aside. Reference was made to the case Lt.-Col Nawab Sir Muhammad Akbar Khan v. Provincial Government N . -W . F . P . (AIR 1942 Peshawar 1) and Campbell v. Mayor, Paddington Corporation ((1911) 1 K.B. 869). In the case Muhammad Ilyas Hussain (ibid) the petitioners's suit againt the respondent was dismissed by the trial Court against which an appeal was also rejected by the District Judge, Rawalpindi and consequently IInd Appeal was also dismissed in limine by a learned Judge of Lahore High Court against which the petitioner/plaintiff went before the Hon'ble Supreme Court. His petition for Leave to Appeal was converted into an appeal and was accepted; the case was remanded with the limited relief as suit for permanent injunction. Reference was made to the case of Imperial Gas Co. v. Broadbent (29 U Ch. 377) whereafter it was held that after establishment of a legal right and its violation by a defendant, a plaintiff, in general, is entitled as of
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course to a perpetual injunction to prevent the recurrence of the wrong, unless there be something special in the circumstances of the case such as laches or where interference with the plaintiff's right is trivial. In Muhammad Bashir (supra) a learned Single Judge of Lahore High Court accepted the revision petition and set aside the order passed by the two sub-ordinate Courts, through which the plaint in that suit was rejected under Order VII Rule 11, C.P.C. While following the rule laid down in the case of Hayanath Ray and others v. Bassesswar Das and others (1946 IC 553) the plaint was restored with the following observation:-- ' I do not agree that the plaint does not disclose a cause sufficient to maintain the action. The plaintiff did allege that if the saw machine was installed so close to his portion where he resided and which is separated only by a wall 9" thick, he would suffer an injury and the safety of his children would be in danger. Even otherwise, the Courts below have also erred in taking into consideration the assertions of the respondent in rejecting the plaint under Order VII, Rule 11, C.P.C. If in view of the pleading of the respondent the assertion as to the threat of the nuisance became controversial, the controversy could be resolved by framing an appropriate issue and proceeding to decide the same." The plaintiff has not filed this suit in a representative capacity, which may be one of the conditions to bring a suit under section 91 C.P.C. For restraining public nuisance. In the instant suit the plaintiff has also pleaded violation of the easementary rights for himself as well as other residents of the neighbourhood but at the same in addition to his other rights. It is also an undeniable fact, which has not been denied in the written statement of defendant No,1 and which is also evident from several reports of inspections that the defendant No,3 namely, KBCA, sealed the disputed premises as it was being raised in violation of the approved building plan. In addition to these allegations, there are reports from the Official Assignee which indicate that even after 29-8-1996 when the defendants Nos.1 and 2 were restrained from carrying on any further construction on the suit property, the construction was raised in violation of the same, which is established by the Official Assignee's reports dated 26-11-1996, 2-12-1996, 18-1-1997 and 1-7-1997. Violation of the order of injunction passed by this Court was also noted by me on 14-11-1996, when the property of the defendant No,1 was attached, against which plaintiff has filed an application (CMA 6609 of 1997). The said order reads as under:- ' "Mr. M.A.. Latif wants time to file objections/counter affidavit to the present application. However, he has further stated that since there is contempt application it should be served directly upon defendant No,1. It is stated by Mr. Bashir Memon that he has passed the order of attachment at the site but since construction is being raised on a plot which is widely open, therefore, it is not possible to paste this order on the main entrance. According to Official Assignee there is no main entrance at the place where the construction is being raised. In the circumstances, he is allowed to seal the property and to appoint a Chowkidar round the clock. Salary of Chowkidar and other terms and conditions of the service is to be decided between the Official Assignee and the plaintiff." ' The plaintiff has also filed the report of Official Assignee dated 17-6-1996 in Suit No,421 of 1996 (Younus Ali Gilani v. Karachi Building Control Authority) as annexure 'J' to the plaint, which again was not denied by the defendant No, 1 . This was a suit filed by the said defendant, seeking injunction against KBCA from interfering in the construction whereupon this Court passed an order for maintenance of status quo which was again violated by the plaintiff in that suit (now defendant No,1). On 5-6-1996 in that suit this Court directed Official Assignee to visit the site and to report about the progress of the construction, which was done on 13-6-1995. It was found that the following violations of the approved building plan were committed by the said plaintiff (now defendant No,1):-- "South side:-
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(i) West south:-According to approved plan compulsory open space is 15' but one pillar is at a distance of 6'. 3".. (ii) According to approved plan compulsory open space is 15' but second pillar is at a distance of 12'. 9". (iii) East:-According to approved plan compulsory open space is 10' but pillar are at a distance of 8'. North side:- ' North:-According to approved plan is 22'. 6" but pillar is at a distance of 7'. ' All the aforementioned acts of the defendants Nos.1 and 2 in raising construction by violating the approved building plan gives an independent right to the plaintiff to maintain a suit on such cause of action against the defendants regardless of the fact that the question of public nuisance may have also been agitated in the plaint. It is pertinent to observe that subsection (2) to section 91 C.P.C. Protects the right of suit of the plaintiff in respect of aforesaid allegations which exist independently of the provisions of section 91, C.P.C The questions of private and public nuisance were earlier considered by learned Judge of this Court in the case of Mrs. Naz Shaukat Khan and 3 other v. Mrs. Yasmin R. Minhas and another (1992 CLC 2540) where a plea challenging the suit under the grounds as provided under section 91, C.P.C. Was raised. In that case, one of the questions for consideration before this Court was whether by establishing a school, it consitutes a public nuisance. Some four persons filed a suit against the owners of a private school on the grounds that will be nuisance to such plaintiffs as well as to the locality. The challenge to the maintainability of this suit was not up-held and the order of ad interim injunction was confirmed on the following grounds inter alia:- ' "In short, therefore, it may be stated that there need not be any watertight compartments for public and private nuisances. It is not uncommon that a specific nuisance may be purely a private nuisance or exclusively a public one. Yet there may be occasions where what is a public nuisance providing cause for punitive action under criminal law or attracting a mandatory written consent of the Advocate-General for institution of civil proceedings under section 91 of the Code of Civil Procedure, such may also be a private nuisance at the same time. The two concepts may thus intersect each other. The test for differentiation between private and public nuisances seems to lie in a peculiar impact on one or more individuals as regards rights in or relating to property incidental upon the offending act or acts, as distinguished from the general inconvenience, annoyance or detriment to the members of the community at large. The Private grievance in such matters, in spite of commonality, is more serious and greater than that to the public as a whole. Causes of action are common but because of the distinct element of specific private injury independent action, without recourse to and consent of the Advocate-General under section 91 of the Code of Civil Procedure and without invoking criminal liabilities under the Pakistan Penal Code or protective measures under section 133 of the Criminal Procedure Code, is equally competent. The objection, therefore, that nuisance in the instant case, such as it may be, is a public nuisance alone requiring written consent of the Advocate-General for the institution of this suit loses force because the plaintiffs have shown specific grievances, carrying peculiar stress in the neighbourhood as distinguished from the general impact on the entire locality. The objection as to maintainability of the suit on account of the purported bar under section 91 of the Code of Civil Procedure, therefore, may not be valid." ' The above view of Wajihuddin Ahmed, J., (now Chief Justice of this Court) on the question of public nuisance was followed by another Judge of this Court C.H. Malik, J., (as he then was) in the case of Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawaz and 5 others (PLD 1993 Karachi 631), which was again followed by a learned Judge of Lahore High Court in the case of Lahore Grammar School (Pvt.) Ltd. And another v. Mst Hameeda Begum and another (PLD 1996 Lahore 442).
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As a result of above discussion, I am of the considered view that the plaint is not liable to be rejected at this stage on the ground of prohibition contained in section 91 C.P.C. As all these questions, as agitated in the plaint, are triable issues. ' Now, coming back to CMA 4415/96, which is an application under Order XXXIX rules 1 and 2, C.P.C., through which two reliefs of same nature are solicited: Firstly, interim injunction against defendants Nos. 1 and 2 restraining them from raising "any construction" on the suit property and secondly, prohibitory injunction against defendants Nos. 3 & 7 namely, KBCA and the…
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