2011 C L C 1 3 7 9
[Quetta]
Before Mrs. Sye da Tahira Safdar, J
AKHTAR MUHAMMAD and another ----Petitioners
Versus
Malik ABDUL HAMEED and another ----Respondents
Civil Revision No.529 of 2009, decided on 11th April, 2011.
(a) Easements Act (V of 1882) ---
----S.15---Civil Procedure Code ( V of 1908), S. 91, O.I, R. 8 & O. VII, R.11(d) ---Specific
Relief Act (I of 1877), Ss.42 & 54 ---Suit for declaration and permanent injunction ---Right of
way over defendant's land being enjoyed by plaintiff for last 27 years alleged to be obstructed
by defen dant by raising cons(ruction thereon ---Existence of alleged right of way over suit
land denied by defendant ---Defendant's application under O. VII, R.11, C.P.C., for rejection
of plaint on ground that matter in issue fell within definition of public nuisan ce, thus, suit
was not maintainable for having been filed without prior written consent of Advocate -
General under S.91, C.P.C., and without fulfilling requirements of O.I, R.8 thereof ---Order
of rejection of plaint passed by Trial Court upheld by Appellate Court ---Validity ---Plaintiff
had claimed right of way as an easement to his private extent over suit land owned by
defendant, but had not claimed any right of public at large in respect of a recognized lane or
public road or highway ---Act offending sentim ents of and causing annoyance to a particular
person would not constitute an act of public nuisance ---Private person, if suffered special
damage, could maintain suit for a public nuisance without written consent of Advocate -
General ---Present suit was not h it by provision of S. 91, C.P.C. ---Existence of right of
easement in favour of plaintiff in respect of suit land and fact of physical existence of
disputed road/thoroughfare was yet to be established by plaintiff during trial ---High Court
accepted revision petition, set aside impugned orders and remanded case to Trial Court for its
decision in accordance with law.
2003 PLD Kar. 495; 2003 CLC 632; PLD 2004 SC 633 and 2004 MLD 1107 ref.
Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.
(b) Words and phrases ---
---"Nuisance" --Meaning.
(c) Civil Procedure Code (V of 1908) ---
----S. 91 ---Penal Code (XLV of 1860), S.268 ---Term "public nuisance " ---Connotation ---Act
of encroachment made on public roads or path ways would inclu de within act of public
nuisance ---Principles.
Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.
(d) Easements Act (V of 1882) ---
----S. 15 ---Penal Code (XLV of 1860), S. 268 ---Right of way claimed under provision of
Easement s Act, 1882, denial or obstruction of ---Validity ---Such denial or obstruction would
amount to nuisance within meaning of S.258, P.P.C. -Such matter could be dealt with under
criminal law as well as under civil law.
Abdul Sattar Kakar and Muhammad Asif B aloch for Petitioners.
Ajmal Khan Kakar for Respondents.
Date of hearing: 28th October, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- Brief facts of the case are that a suit for declaration
and permanent injunction was filed by the present peti tioners/plaintiffs against the
respondents/defendants, claiming therein interruption caused in their right of passage by
respondents/ defendants by way of raising construction on the road, which was in their
(petitioners') use from last 27 years. Responden t No.1/defendant No.1 strongly contested the
suit with contention, that the main gate of the house of the petitioners/plaintiffs is towards
west, while they are utilizing the road named as Mohallah Killi Sherani, while the property in
question is situated at eastern side of plaintiffs' property, where no entrance of the house of
the petitioners/plaintiffs existed. It is further his contention, that there was no settlement
between predecessors of the parties regarding usage of property in question as road; r ather
previous owner was utilizing land in question for agricultural purposes. In his separate reply,
respondent No.2/defendant No.2 supported the plea taken by first respondent. According to
him, land in question was never used as thoroughfare, and he bei ng owner has every right to
utilize the same.
During course of proceedings, the site in question was got inspected by a commission
appointed by the court for the purpose, Report of the inspection is present on record. The
petitioners/plaintiffs objected the report by way of filing certain written objections.
Meanwhile, the respondents filed an application for rejection of plaint under provisions of
Order VII, Rule 11, C.P.C., with contention, that as the plaintiffs/petitioners have sought right
of easemen t upon property in question, as such the matter in issue falls within definition of
Public Nuisance, thus in view of section 91, C.P.C., the suit is to be filed with consent or
permission of the Advocate -General. It was asserted, that as no such sanction w as obtained
before filing of the suit, therefore, the suit is liable for dismissal for non -fulfilment of legal
requirement, as provided under section 91, C.P.C., and the suit is also beyond the scope of
section 15 of Easements Act. In reply petitioners/pla intiffs strongly contested the application.
The trial Court through order dated 25 -9-2009, while arriving to the conclusion, that as the
suit involves question of right of easement, which carries elements of public nuisance,
therefore, before obtaining san ction within the meaning of section 91, C.P.C., the suit is
incompetently filed, thus rejected. Being aggrieved of the same, the petitioners/plaintiffs
preferred appeal, which was also dismissed by the appellate court, through order dated 17 -11-
2009. Still feeling aggrieved, the petitioners filed instant petition with contention, that their
case does not fall within the ambit of public nuisance, therefore, section 91, C.P.C. is not
attracted in the matter. As such the trial Court as well as the appellate co urt arrived to the
conclusion, which is contrary to law. Further, the facts are not properly appreciated, and an
erroneous view has been taken. The petitioners thereby prayed for setting aside of the
impugned orders, and remand of the case to the trial Cou rt for deciding it afresh on merits,
after recording of the evidence.
While arguing his case, learned counsel for the petitioners, contended that as the right, for
establishment of which the suit was filed, is a private right as the road in question is n ot a
Government property, rather it is a private passage used by the petitioners/plaintiffs since
1982. Thus in the circumstances, the dispute does not fall within the ambit of public nuisance,
as such no sanction is required for filing of the suit in term s of section 91, C.P.C. The learned
counsel placed reliance on the judgments report in: ---
2003 PLD Karachi 495, 2003 CLC Karachi 632, PLD 2004 Supreme Court 633.
The learned counsel for the petitioners further argued that the site got inspected by the trial
Court by appointing a Local Commissioner, who after inspection submitted his report, which
was objected by the petitioners/plaintiffs. Rut the trial Court without considering the
objections gave decision, thereby dismissed the suit, as such there is complete violation
of provisions of Order 22, Rule 6, C.P.C. He referred to a judgment reported in 2004
MLD at page 1107. While in reply to the arguments learned counsel for the
respondents/defendants asserted, that the suit was required to be filed keepi ng in view
the provisions of Order I, Rule 8, C.P.C. Further, as the suit was filed within the
meaning of section 15 of Easements Act, 1882, as such provision of section 91, C.P.C.
are to be complied with. The learned counsel further argued, that the parti es have
already entered into arbitration proceedings, whereby award has been given. Thus in the
circumstances, the suit was not competent. In reply learned counsel for the petitioners
only contended, that as the mentioned award is not a registered one, thu s cannot be
considered by the court.
As per pleadings of the parties, the petitioners/plaintiffs are claiming a right of way in
respect of a piece of land situated at eastern side of their house. According to them, this
lane/road is in their use since 19 82. The grievance of the petitioners started when
respondent No.2/defendant No.2 started raising construction of a room thereon. While
respondent No.1/defendant No.1 is the previous owner of said piece of land, which has
been sold by him to the second resp ondent/ defendant. In reply, both the
respondents/defendants denied existence of any right of way in favour of the
petitioners/plaintiffs. According to them the main gate of the house of the
petitioners/plaintiff is at western side, which is being used by him. The trial Court in
order to ascertain the factual position, appointed a Commission for local inspection of
the site, within the meaning of Order XXVI, Rule 9, C.P.C., which submitted its report.
The evidentiary value of the report is provided in Rule 10 of the Order. Though some
objections were raised by the petitioners/plaintiffs on the report, but the same were not
addressed by the trial Court while disposing of the matter, as the suit was rejected by
the trial court, only for want of obtaining of pe rmission for filing of suit of such a
nature from the. Advocate -General, while exercising powers within the meaning of
Order VII, Rule 11, C.P.C.
Rule 11 of Order VII, C.P.C. provides the instances, on basis of which a court is
empowered to reject the pl aint. The Rule states as under:
Rejection of plaint .- The plaint shall be rejected in the following cases: -
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff on being required by the
Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) whether the relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff; on being required by the Court to suppl y the
requisite stamp -paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law."
In present case, the courts below exercised their powers under clause (d) of this Rule,
thereby finding the suit being barred by law, that is section 91, C.P.C., which states as
under: ---
Public Nuisance .--- (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 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 othe rwise affect any right of
suit which may exist independently of its "provisions."
Keeping in view the above quoted sections, at first instance it is to be considered, that
whether the case of petitioners/plaintiffs falls within the ambit of Public Nuisan ce, if so,
the second question would be that, whether required sanction has been obtained by the
petitioners/ plaintiffs within the meaning of section 91, C.P.C. The learned appellate
Judge, in impugned order, failed to discuss the legal aspect, rather sim ply relied on
findings recorded by the trial Court. While the trial Court, on the other hand, after
having glance to the contents of the plaint arrived to the conclusion, which is
reproduced hereunder: ---
"--- it basically involves the question of right of easement and thereby in actual
essence, the matter carries elements of public nuisance and in that regard every suit
containing element of public nuisance, according to section 91 of C.P.C. shall be filed
after obtaining consent and permission . from th e Advocate -General of the 'Province
and any suit of public nuisance filed without seeking prior permission under section
91 of C.P.C. from the Advocate -General is not 'competent and there is every
likelihood of the same to be rejected. --"
---I am of the opinion that the suit of respondents/plaintiffs being originally a suit of
right of easement is incompetent, as the same is filed without prior permission from
the Advocate -General, which is mandatory, hence being barred by section 91 of -the'
C. P. C., the suit is rejected."
Both the courts below failed to disclose the reasons on basis of which they arrived to the
conclusion, that the matter in issue carries the element of public nuisance. The way in which
the courts below arrived to the conclusion is a bit illogical, and also not proper.
As per pleadings of the parties, the petitioners/plaintiffs are claiming their right of way from
the land previously owned by respondent No.1, and presently owned by respondent No.2,
who raised .construction thereon, thus asserted creation of obstruction in their right of way.
The petitioners are claiming their right as an easement as provided under section 15 of
Easements Act, 1882. Though there is denial from the other side, but the petitioners/plaintiffs
have set up their case under the mentioned section. Thus to cover the dispute within, the
meaning of nuisance, that too Public. Nuisance, the meaning thereof must be clear. Literally
the term nuisance means a thing, a person; or a situation that is annoying or caused trouble.
While using in respect of law, it is a behaviour of some body that annoys other people, and
that a court of law can order the person to stop. While term public nuisance means an illegal
act that causes harm to people in general. The term public n uisance is discussed at length by
his lordship Mr. Justice Iftikhar Muhammad Chaudhary in judgment made in appeals titled as
Islamuddin and others v. Ghulam Muhammad and others reported in PLD 2004 Supreme
Court, page -b33, which is worth for reproduction t o understand the meaning of "Public
Nuisance": ---
"Nuisance is that activity which arises from unreasonable 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 su ch material annoyance, inconvenience and
discomfort that law will presume resulting damage. State exrel. Herman v. Cardon, 23
Ariz. App. 78, 530 P.2d 1115, 1118. That which annoys and disturbs one in
possession of his property, rendering its ordinary use o r occupation physically
uncomfortable to him; e.g. smoke, odors, noise, or vibration. Patton v. Westwood
Country Club Co., 18 Ohio App. 2d 137, 247 NE. 2nd 761, 763, 47 0.0.2nd 247. The
term is incapable or exhaustive definition which will fit all cases, a s sit is very
comprehensive and includes every thing that endangers life or health, give offence to
senses, violates law of decency, or obstructs reasonable and comfortable use of
property. U.S. v. County Board of Arlington County, D. C. Va., 487 F. Supp.1 37,
143. An offensive, annoying, unpleasant, or obnoxious thing or practice; a cause of
source of annoyance, especially a continuing or repeated invasion or disturbance of
another's right, or anything that works a hurt, inconvenience or damage. Renken v.
Harvery Aluminum (inc.) D. C. Or., 226 F. Supp. 169, 175."
According to AMERICAN JURISPRUDENCE 2d.
"Public Nuisances .- A public nuisance has been defined as the doing of or the failure
to do something that injuriously affects the safety, health or moral s of the public of
works some substantial annoyance, inconvenience, or injury to the public, and as a
nuisance which causes hurt, inconvenience, or damage to the public generally, or such
part of the public as necessarily comes in contact with its in the e xercise of a public or
common right. It is a condition of things which is prejudicial to the health, comfort,
safety, property, sense of decency, or morals of the citizens at large, resulting either
from an act not warranted by law, or from neglect of a du ty imposed by law.
According to Blackstone (4 Commentaries, 166), "common or public nuisances are
offences against the public order or economical regimen of the State, being either the
doing of a thing to the annoyance of the King's subjects or the neglect ing to do a thing
which the common good requires". Various other similar definitions are to be found
in the textbooks and reports, and there are statutory definitions in a number of the
states."
11. Similarly in Words and Phrases "Public Nuisance" has be en defined as under: ---
"A Public nuisance is one that invades the public.
A public nuisance is an infringement of a public right.
"Public nuisances" are "Public offences" over which Courts of law have uniform and
undisputed cognizance.
"Public nui sances" are those nuisances which have common effect and produce a
common damage.
A "public nuisance" is an injury to the public at large or to all persons who come in
contact with it.
A nuisance is a "public -nuisance" where it affects rights enjoyed b y citizens as part of
the public.
If annoyance, is one that is common to the public generally it is a "public nuisance".
A "public nuisance" is one that injures the citizens generally who may be so
circumstanced as to come within its influence.
Where a nuisance violates public rights, produces a common injury, and constitutes an
obstruction to public rights, the nuisance is a "public nuisance".
A "public nuisance" is conduct which interferes with use of a public place or with
activities of entire co mmunity.
A public nuisance is an offence against the State, and as such is subject to abatement,
or indictment on the motion of the proper governmental agency.
"Public nuisance" is committed where aggregation of private injures becomes so great
as to c onstitute public annoyance which may be properly subject of public
prosecution.
To be a "public nuisance" the activity must be harmful to the public health, create an
interference in use of a way of travel, affect public morals, or prevent the public fro m
the peaceful use of their land and the public streets.
A "public nuisance" exists wherever acts or conditions are subversive of public order,
decency, or morals or constitute an obstruction of the public rights, and such
nuisances always arise out of u nlawful act.
To constitute a "public nuisance ", Annoyance must be such as to injure citizens
generally who may be so circumstanced as to come within its influence.
A "public nuisance" is activity which produces some tangible injury to neighboring
property or persons coining into contact with it and which court considers to be
objectionable under circumstances. "
Keeping in view the referred judgment, the meaning of the term is quite clear, but it is to be
noted that the term "Nuisance", either privat e or public, is .neither defined in Easements Act,
1882, nor in Civil Procedure Code. Rather section 268, PPC defines the term' Nuisance,
rather Public Nuisance, which states as under: ---
"Public nuisance . A person is guilty of a public nuisance who does any act or is
guilty of an illegal omission which causes any common injury, danger or annoyance
to the public or to the people in general who dwell or occupy property in the vicinity,
or which must necessarily cause injury, obstruction, danger or annoyanc e to persons
who may have occasion to use any public right.
A Common nuisance is not excused on the ground that it causes some convenience or
advantage."
In addition, section 133 of Criminal Procedure Code describes the instances amounts to
Public Nuis ance, while empowering a Magistrate to make order for removal of the same.
Keeping in view the literal meaning of the term and mentioned provisions of law, the act of
encroachment made on public roads or path ways included within the act of public nuisance .
Thus a right of way claimed under provisions of Easement Act, and its denial or disturbance
amounts to nuisance within meaning of section 268, Cr.P.C. As such the matter of such a
nature can be dealt under criminal law as well as under civil law.
In pr esent case, the point for determination at this stage is that whether the suit was not
maintainable within the meaning of section 91, C.P.C., as admittedly the requisite sanction
has not been obtained from the Advocate -General and the mandatory requirement s of filing a
suit in representative capacity are not fulfilled. It is to be noted, that though the petitioners
have tiled a suit for right of way, but they are not claiming any right of public at large, rather
they are claiming a right to their personal/p rivate extent. According to their own showings the
way which they are claiming is not a recognized lane or a public road, rather a piece of land,
owned by the opposite party/respondents remained in their use since 1982. Thus in the
circumstances, as the ac t alleged only offend the sentiments of a particular person and cause
annoyance to a particular person, at the first instance, does, not constitute an act of public
nuisance, therefore, the case of the petitioner will not be governed by the provisions of
section 91, C.P.C.
In addition the plain reading of the section reveals, that the provisions of section 91, C.P.C.
do not restrict an individual person for filing a suit for establishment of his right, which has
been infringed, as subsection (2) of the se ction provided an exception to subsection (1) of the
section. In view of subsection (2) there will be no bar to a private person for filing a suit for a
public nuisance with the exception, that some special damage has been suffered by him. The
honourable S upreme Court while discussing impact of section 91, C.P.C. held: ---
"8. We have heard parties counsel and have also gone through the available record
thoroughly. It is to be noted that before initiating legal proceedings the
respondents/plaintiffs sought permission from Advocate -General of the Province as
required under section 91, C.P. C. to institute a suit. This provision of law envisages
that either the Advocate -General can himself file a suit or he can consent in writing
for institution of a suit on the application of two or more persons, it is to be noted that
satisfaction of the Advocate -General to give consent for filing of a suit to private
persons to whom no special damage has been caused, prima facie; indicates that a
case of public nuisance exi sts. Although an individual in whose favour a right exists,
independently can file a suit for declaration/injunction on the stated allegation of
causing public nuisance but obtaining the consent of the Advocate -General
strengthens the cause of the person w ho wants to institute a suit for
declaration/injunction in respect of alleged public nuisance and institution of such suit
of public nuisance would be deemed to be a representation on behalf of people
residing in the vicinity where the commission of public nuisance is being alleged. It is
submitted before us that the respondents/ plaintiffs had filed a suit in representative
capacity under Order I, Rule 8, C.P.C., .but procedure laid down therein was not
followed, therefore, the suit should be deemed to be on behalf of
respondents/plaintiffs in their individual capacity. It is not possible for us to accept
this assertion of the appellants in view of the consent of the Advocate -General in
favour of respondents/plaintiffs to institute a suit. Even otherwise, t here is no bar
upon an individual to institute a suit for a right existing in his favour in respect of the
cases pertaining to public nuisance without obtaining consent of the Advocate -
General, therefore, non following the procedure under order 1, Rule 8, C.P.C. would
not be fatal in given circumstances of the case.
Besides it, in view of the findings of the High Court namely "in case of public
nuisance and private nuisance, injury to the property and to a person would confer
jurisdiction upon the Court e xcept that in the case of public nuisance, consent of
Advocate -General as required under section 91, C.P.C. would be necessary under the
law, while in case of private nuisance no such consent would be required but the relief
for filing a suit for injunctio n and damages would be available in both kinds of
nuisance" the objection being raised on behalf of appellants has no substance. "
Keeping in view the above mentioned facts, and the relevant provisions of law, the trial Court
made an error while rejectin g the plaint under provisions of section 91, C.P.C., while the
appellate court also failed to consider the legal aspect of the case, thereby upheld the
judgment of the trial Court. The petitioners are claiming right of way as an easement, while
their claim is not in respect of a public road or a high way, rather in respect of a path, asserted
to be existed in land of the respondents. In the circumstances, the claim as, set up by the
petitioners, is covered within the ambit of "Private Nuisance". Thus as per verdict of
honourable Supreme Court, referred hereinabove, the consent of the ' Advocate -General is
not required, the suit was not hit by the provisions of section 91, C.P.C. Both the courts failed
to understand the nature, of the case, and the law applie d thereto, thus made out a case for
remand of the matter. It is to be noted that the existence of right of easement in favour of the
petitioners/plaintiffs in respect of land in question, and H even the fact of physical existence
of road/thoroughfare in qu estion, are yet to be established by the petitioners/plaintiffs, during
course of the trial. Further, as far as the Report of the Commission, submitted during course
of trial, is concerned, the same has not been considered by the courts below, as no findin gs
are, recorded to the said extent. It will not be appropriate to record any observations in same
respect at this stage, which amounts to prejudice the findings of the. courts below; rather the
objections so filed will be deemed pending before the trial C ourt, which will be decided in
accordance with law, while dealing with the case on its remand.
In view of above discussion, the petition is accepted, orders dated 25 -9-2009 of Civil Judge -
II, Quetta, and dated 17 -11-2009 of Additional District Judge -VI, Quetta, are hereby set
aside. The suit is remanded to the trial Court with direction to proceed with the matter strictly
in accordance with law.
No order as to costs.
S.A.K./37/Q Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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