HCJDA-38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH
RAWALPINDI

JUDICIAL DEPARTMENT
R.F.A. No.172 of 2016
(Sheikh Azfar Ami n versus Chaudhr y Asi f Ali & 4 others)

JUDGMENT

Date of hearing 08-06-2021

Appellant by Sh. Azfar Amin, Advocate,

(appellant in person ) .

Respondents Syed Qalb -i-Hassan,

No.1 to 3 by Advocate.

Respondent Raja Waqar Il yas , Advocate.

No.5 by

SULTAN TANVIR AHMAD, J:– Present appeal

has been filed against order dated 28 -10-2016, whereby plaint

in suit No.241 dated 27-05-2016 titled “Sheikh Azfar Amin

Vs. Chaudhry Asif Ali & others” was rejected, by learned

Civil Judge Class-I, Rawalpindi, under Order VII Rule 11,

Code of Civil Procedure, 1908.

2. The facts, necessary for decision of this regular

first appeal, are that the appellant filed suit for permanent and

mandatory injunction against the respondents alleging therein

that playground of Gulrez Housing Society, situated at Sir

Syed Avenue, Phase-III, Rawalpindi, measuring 9 Kanals 10

Marlas (the ‘Property’) was transferred vide deed No.15570

RFA No.172 of 2016 (Judgment) 2

dated 15-08-2005 to Gulrez Community Society/respondent

No.4. The Property, was allegedly maintained and had been

utilized as playground in the past. As per averments of the

plaint, construction of Marquee (Marriage Hall) and its

parking over the Property is illegal and unlawful as well as

against Regulations of the Rawalpindi Development

Authority. The appellant has complained about the n uisance

emanating out of the alleged conversion and construction, its

usage etc. It is pleaded the aforesaid is amounting to nuisance

to public as the entire vicinity is comprised of residential area

and in particular it is causing nuisance to the Appellant who

is having physical and legal proximity with the complained

activity. The appellant has disclosed v arious other grievances

which are narrated in the plaint.

3. Said suit was being contested by the respondents

by filing written statements and raising factual as well as

legal objections.

4. During pendency of the suit, on 31-05-2006,

application for rejection of plaint , under Order VII Rule 11 of

Code of Civil Procedure, 1908 was filed by respondents No.1

to 3, inter alia, on the grounds that suit is barred by law ;

plaint is neither maintainable nor proceedable in view of the

definition of public nuisance and requirement of law to obtain

permission of the Advocate General , in the mode and manner

as mentioned in section 91 , Code of Civil Procedure, 1908. In

RFA No.172 of 2016 (Judgment) 3

same application jurisdiction of the learned Trial Court was

also challenged. This application was contested by filing

counter-affidavit along with reply.

5. On 28-10-2016, learned trial Court rejected the

plaint while agreeing with the averments in the application

under Order VII Rule 11, Code of Civil Procedure, 19 08.

6. Sh. Azfar Amin, Advocate/appellant has appeared

in person and argued that learned Trial Court has erred in law

while reaching to the conclusion that consent of Principal

Law Officer of the Province was required , in the

circumstances of the c ase. Further submitted that conduct of

Respondents has simultaneously given rise to cause to take

legal action, in the individual capacity, being private

nuisance. The Property and the complained acti vities

originating from the same have sufficient proximity with the

houses/land of the appellant/plaintiff as well as it is resulting

into interference in the use and enjoyment of rights attached

with personal property of the Appellant. It has been argued

that damage caused is not too remote and it is natural

consequence of the complained conduct. It has further been

argued that learned Trial Court has ignored averment s in the

plaint and the matter in question requir ed soliciting proper

evidence after framing of the issues. Learned counsel in

support of his arguments has relied upon “Mrs. NAZ

SHAUKAT KHAN and 3 others versus Mrs. YASMIN R.

RFA No.172 of 2016 (Judgment) 4

MINHAS and another ” (1992 CLC 2540), “Dr. SHAHZAD

ALAM and 2 others versus BEACON LIGHT ACADEMY and 5

others” (2011 CLC 1866), “MUHAMMAD ISSA ABBASI

through Legal Representatives a nd others versus ABDUL

QADIR through Legal Heirs ” (PLD 2013 Sindh 60), and

“Haji ALI GOHAR and 10 others versus PROVINCE OF

SINDH, through Secretary Local government and 6 others ”

(PLD 2016 Sindh 292) .

7. On the other hand, Syed Qalb -i-Hassan, learned

Advocate, appearing on behalf of respondents No.1 to 3 has

forcefully supported the impugned order and argued that

section 91 of the Code of Civil Procedure, 1908 applies to

facts of the case and suit could not have proceed further i n

view of the said provis ion of law; that appellant could not

blow hot and cold in one breath, by complaining about the

public nuisance and private nuisance at the same time; that

Order VII Rule 11 of Code of Civil Procedure, 1908 has

rightly been applied by the learned Trial Cou rt; that in

appropriate cases Order VII Rule 11 can be invoked by

looking into the contents of the written statements, affidavits

and material on record. In support of his contentions, learned

counsel has relied upon “ABDULLAH and others versus

MUHAMMAD AMIN” (PLD 1968 Lahore 1235), “ZAFAR

AHMAD KHAN and 3 others versus PROVINCE OF PUNJAB

and another” (1986 SCMR 423), “MUHAMMAD ASHFAQ and

another versus SOHAIL HAMEED and 3 others ” (1986 CLC

RFA No.172 of 2016 (Judgment) 5

2218), “ZARIF AHMAD KHAN and 3 others versus

PROVINCE OF PUNJAB a nd another” (1986 SCMR 684),

“UME AIMAN and 43 others versus MUHAMAMD YOUSUF

and 10 others” (2002 CLC 1620), “S.M. SHAM AHMAD

ZAIDI through Legal Heirs ver sus Malik HASSAN ALI KHAN

(MOIN) through Legal Heirs ” (2002 SCMR 338), “Maj.

(Rtd.) HAMID ALI KHAN v ersus Mian MUHAMAMD ANWAR ”

(2000 CLC 1633), “Moulvi MUHAMMAD ISHAQ and another

versus THE P.O.F. COOPERATIVE HOUSING BUILDING

SOCIETY, WAH CANTT.” (1989 SCMR 1052), and “NIAZ

HUSSAIN and others versus NIZAMUDDIN and 13 others ”

(2017 YLR 1691).

8. Learned counsel appearing on behalf of Respondent

No.5 has supported and adopted the line of arguments

advanced by learned counsel for Respondents No.1 to 3. He

has further submitted that he reiterates the stance of

Rawalpindi Development Authority before the lea rned Trial

Court.

9. We have heard learned counsel for the parties at

length and gone through available record with their proficient

assistance and also considered the case law relied upon by

both the parties.

10. Arguments of learned Counsel of the pa rties have

raised the following questions, based on the pleadings and

available record: -
RFA No.172 of 2016 (Judgment) 6

1. Whether an action or a chain of actions

that possibly can constitute public
nuisance or is being complained as
public nuisance, at the sometime can
give rise to a possible claim or cause
action to an individual for private
nuisance?

2. Interpretation of Section 91 of CPC and

its applicability?

3. Whether failure to obtain the permission

from Advocate General was detrimental
to the whole case?

4. Whether rejection of plaint u nder Order

VII Rule 11, CPC is justified, i n the
circumstances of the case? and

5. Whether impugned order is per incuriam

and learned Court, while rejecting the
plaint, has ignored the law laid down by
the Apex Court of the Country?

11. The right that is protected by the tort of ‘private

nuisance’ is the right to enjoy one’s property , while, the

essence of the right that is protected by the crime and tort of

‘public nuisance’ is the right not to be adversely affected by

an illegal act or omission that is jeopardizing the life, safety,

health of public etc. The American Law Institute,

Restatement of the Law, Torts, 2 d (1979), section 821B(h)

provides “unlike a private nuisance, a public nuisance does

not necessarily involve interference with use and enjo yment

of land”. Although both the torts are separate from each other

and the rights protected by the said torts are also dissimilar,

hitherto it is true that same act or omission may give rise to

both public and private nuisance.

12. In “Halsey V Essco petroleum Co. Ltd” [1961]

RFA No.172 of 2016 (Judgment) 7

2 All ER 145, as well as “Southport Corpn V Essco

Petroleum Co. Ltd ” [1954] 2 QB 182) Court of Appeal

decided that same conduct can amount to both private and

public nuisance. In “British Celanese Ltd V AH Hunt

(Capacitors) Ltd.” [{1969} 2 All ER1252] it was held that an

individual when suffers more particular damage greater than

that suffered by the public can maintain the action as an

individual.

13. In “Re Corby group Litigation ”([2009] QB 335)

the court of appeal approv ed the refusal to strikeout the

claimant’s claim for damages for personal injury in the tort of

public nuisance on the ground that it had no real prospect of

success since such damages could not be recovered for public

nuisance.

14. The following extract of judgment by the

Honourable Supreme Court of Pakistan in case titled

“Abdul Rashid through Legal Heirs and 6 Others versus

Mahmood Ali Khan” (1994 SCMR 2163) is highly relevant: -

“The offending acts of the tenant which may

amount to nuisance shou ld cause inconvenience to
the neighbours. As in the present case the
appellant’s family is residing on the first floor of
the building and as held in Mst. Firdous Begum v.
Dr. Shamsunnisa (1982 CLC 332), they will be
covered by the word ‘neighbours’.

4. The word ‘nuisance’ has not been defined

in the Ordinance nor is it capable of exact
definition. It depends upon the facts,
circumstances and acts which are committed or
omitted by any person on his own land or that of
others, creating offending effect, i nconvenience,
difficulty or damage to the neighbours, Clerk and
RFA No.172 of 2016 (Judgment) 8

Lindsell on Torts, 14th Edition, have described

nuisance as follows: --

“The acts which constitute public

nuisances are all of them unlawful acts.
In private nuisance, on the other hand,
the conduct of the defendant which
results in the nuisance is of itself not
necessarily or usually unlawful. A
private nuisance m ay be and usually is
caused by a person doing on his own
land som ething which he is lawful
entitled to do. His conduct only becom es
a nuisance when the consequences of
his acts are not confined to his own land
but extend to the land of his neighbor by
(1) causing an encroachm ent on his
neighbour’s land, when it closely
resem bles trespass, (2) causing physical
dam age to his neighbour’s land or
buildings or works or vegetation upon it,
or (3) unduly interfering with his
neighbor in the com fortable and
convenient enjoyment of his land . It may
be a nuisance when a person does
something on his own property which
interferes with his neighbour ’s ability to
enjoy his property by putting it to
profitable use. It is also a nuisance to
interfere with some easement or profits
or other right used or enjoyed with his
neighbour’s land.

Nuisance of the third kind, causing an

interference with the enjoy ment of land,
are: creating stenches by the carrying on
of an offensive manufacture or otherwise,
causing smoke or noxious fumes to pass
on to the plaintiff’s property, raising ,
clouds of coal dust, making unreasonable
noises, or vibration, using a buildin g as
a hospital for infectious diseases
whereby the adjoining owners live in
perpetual dread of infection, or using a
house for prostitution, causing crowds to
collect, watching and besetting a man’s
house so as to compel him to act in
particular way, caus ing excessive heat to
pass into an adjacent tenement
comprised in the same block of buildings,
abstracting heat and reducing premises
to ‘arctic conditions’.”
(Emphasis supplied)

15. This Court in case titled “Muhammad Rafique

RFA No.172 of 2016 (Judgment) 9

versus Tehsil Municipal Administration Chakwal and

Others” (2020 MLD 1360) has already expressed the

following view:

“ A private nuisance is a civil wrong; it is the

unreasonable, unwarranted, or unlawful use of
one’s property in a manner that substantially
interferes with the e njoyment or use of another
individual’s property, without an actual Trespass
or physical invasion to the land. A public
nuisance is a criminal wrong; it is an act or
omission that obstructs, damages, or
inconveniences the rights of the community.
Obstructing a highway or creating a condition to
make travel unsafe or highly disagreeable are
examples of nuisances threatening the public
convenience. A public nuisance, as such, is
actionable only by the state, through crim inal
proceedings, injunction, or physic al abatem ent,
the sam e activity or conduct m ay also create a
private nuisance to nieghbouring landowners and
thus result in a civil suit .
(Emphasis supplied)

16. In this regard, the Honourable Sind High Court in

case titled “Mrs. Naz Shaukat Khan and 3 Others versus Mrs.

Yasmin R. Minhas and another ” (1992 CLC 2540)

accentuated as follows:

“In short, therefore, it may be stated that there

need not be any water -tight compartments for
public and private nuisances. It is not
uncommon that a specific nuis ance may be
purely a private nuisance or exclusively a
public one. Yet there m ay be occasions where
what is a public nuisance providing cause for
punitive action under crim inal law or
attracting a m andatory written consent of the
Advocate-General for insti tution of civil
proceedings under section 91 of the Code of
Civil Procedure, such m ay also be a private
nuisance at the sam e tim e” .
(Emphasis supplied)

17. The aforementioned forces us to say one act that is

crime under section 133 of the Code of Crimi nal Procedure,

1898 and civil wrong under section 91 of the Code of Civil

RFA No.172 of 2016 (Judgment) 10

Procedure, 1908 as public nuisance, can possibly provide a

cause for an action as private nuisance to an individual. In

essence the difference is that Section 91 of the Code of Civil

Procedure, 1908 allows the action for public nuisance even in

the absence of proof of special damages, however, where an

individual can prove the special damage, can maintain the

action as private nuisance for the same act. The damage will

qualify as special if it is particular and direct.

18. Having said that one action can result into both

private and public nuisance, we would like to address the

remaining objections to the plaint which mainly became

reason for rejection of plaint (i) two or more pers ons should

have obtained consent from the Advocate -General (ii)

construction of wedding hall, its site plan or approval are

matters between the Respondents/Defendants 1 to 3 and

Rawalpindi Development Authority (RDA) and Appellant/

Plaintiff despite being neighbor has no concern or cannot

maintain action.

19. It will be appropriate to examine section 91 of the

Code of Civil Procedure, 1908 , which is as under:

91. Public nuisances. (1) In the case of a

public nuisance the Advocate -General, or two or
m ore persons having obtained the consent in
writing of the Advocate -General, m ay institute a
suit, though no special dam age has been
caused, for a declaration and injunction or for
such other relief as may be appropriate to the
circumstances of the case.

Punjab Am endm ent: In Section 91,

after the word persons “having obtained
RFA No.172 of 2016 (Judgment) 11

the consent in writing of the Advocate -

General”, the words “with the leave of
the Court” shall be substituted.
[ Punjab (Amdt.) Act XIV of 2018]

(2) Nothing in this section shall be de em ed to

lim it or otherwise affect any right of suit which
m ay exist independently of its provisions.
(Emphasis supplied)

20. Section 91(1) provides that “though no special

damage is caused”, which itself suggests that the permission

of Advocate-General (prior to amendment of 2018) and now

leave of Court is required, for public nuisance as it is

collective cause for which suit is maintainable despite no

special damage to any individual or requirement of proof of

such damage to an individual. When it is particularly read

with sub-section 2 of section 91, it is further clarified that the

requirement of obtaining consent of Advocate -General (and

now leave of the Court), is limited to the cases where no

special damage is caused to more than one person but not hing

limits the right sue that otherwise accrues or is available

under the law, to a person. The suit by Advocate -General or

his consent is primarily a representation of people in the

locality or people concerned .

21. The significance of associating the Principal Law

Officer of the Province in aforesaid provision has been

elaborated by the Honourable Supreme Court in the case of

“A. Razzak Adamjee and another versus Messrs Datari

Construction Company (PVT.) Limited and another ”

(2005 SCMR 142) as follows:

RFA No.172 of 2016 (Judgment) 12

“The section pertains to suits relating to public

matters, especially the public nuisance. It
explains, firstly, that in case of public nuisance
a suit can be instituted either by the Advocate -
General or by two or more persons having
obtained the consen t in writing of the Advocate -
General. Secondly, that for such suit it is not a
prerequisite that a special dam age m ust have
been caused and thirdly, that if allowed by law,
any suit other than public nuisance can , well be
brought and such other right canno t be lim ited
m erely because a suit of public nuisance has
been filed. Plain reading of the section is
indicative of a mere right of the Advocate
General to file a suit either himself or by giving
a consent in writing to two or more persons in
whom the right to sue is vested. In either of the
cases, no presumption of any sanctity is either
attached to the Advocate -General or is at all
legally inferable from the words of the section.
The intention of the legislature seems to be that
where the apprehension , of public nuisance
involving the interest of a larger number of
people or a community as such is involved, the
Principal Law Officer of the Government be also
given a right to sue either on behalf of instead of
such person. No more and no less. Any such suit
is always liable to be proved through production
of evidence like any other suit of the plaintiff. No
special sanctity can therefore be attached”.
(Emphasis supplied)

22. Minute reading of judgment of the August Supreme

Court of Pakistan in case title d “Islamuddin and others

versus Ghulam Muhammad and others ” (PLD 2004 Supreme

Court 633) further clarifies that if complained conduct

amounts to private nuisance, the permission of Advocate -

General is immaterial. It will be further advantageous to

reproduce relevant extract of Paragraph-8 of Islamuddin’s

case (supra):

“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 exits.
Although an individual in whose favour a
right exists, independently can file a suit for
RFA No.172 of 2016 (Judgment) 13

declaration/injunction on the stated

allegation of causing public nuisance but
obtaining the consent of the Advocate -
General strengthen s the cause of the person
who wants to institute a suit for
declaration/injunction in respect of alleged
public nuisance and institution of such suit
of public nuisance would be deem ed to be a
representation on behalf of people residing in
the vicinity where the comm ission of public
nuisance is being alleged . It is submitted
before us that the respondents/plaintiffs had
filed a suit in representative capacity under
Order 1, 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 institut e a suit. Even
otherwise, there 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 proced ure 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 except 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 fo r filing a suit for
injunction and dam ages would be available in
both kinds of nuisance” the objection being
raised on behalf of appellants has no
substance”.
(Emphasis supplied)

23. Somewhat, in the similar situation, the Honourable

Islamabad High Cou rt while relying upon Islamuddin’s case

(supra), in case tiled “Muhammad Ibrar Khan and another

versus Deputy Commissioner and another ” (2017 CLC 635)

reached to the following conclusion: -

RFA No.172 of 2016 (Judgment) 14

“11. The right of the public to pass over a public

highway is a pub lic right. Under the civil law,
there are two remedies against a person who
causes any public nuisance. He may be sued under
Section 91(1), C.P.C. or he may be sued by a
private, individual under Section 91(2). Section
91 (2) makes it clear that nothing in this section
shall be deemed to limit or otherwise affect any
right of suit which may exist independently of its
provisions. It is obvious that if a particular right
of suit arises in favour of a particular person ,
even if there is public nuisance, even t hen such
right of suit is not affected by provisions of
Section 91, C.P.C. So if the plaintiffs are shown
to suffer direct or special damage beyond that
suffered by the general public, there is no reason
why they should not be entitled to maintain their
suits without the consent of the Advocate -General.
Since the appellants want to prosecute the suit in
their individual and independent capacities and
not as representatives of the residents of Mauza
Shah Allah Ditta, I am of the view that the suit
can proceed without the appellants having
obtained the permission of the Advocate -
General”.

24. The Honourable Sind High Court have also given

similar findings in the cases titled “ Haji Ali Gohar and 10

Others versus Province of Sindh, through Secretary Local

Government and 6 Others ” (PLD 2016 Sindh 292 ) and

“Muhammad Issa Abbasi through Legal Representatives and

Others versus Abdul Qadir through Legal Heirs and Others ”

(PLD 2013 Sindh 60 ).

25. Having discussed all above, we can safely say that

failing to resort to provision of section 91(1) of the CPC is

not terminal for a case, when the conduct complained, is also

allegedly resulting into private cause of action or private

nuisance.

26. Reading of plaint as a whole leaves hardly a doubt

RFA No.172 of 2016 (Judgment) 15

that it contained a bunch of grievances, some pertaining to

public nuisance and others relating to private nuisance or

cause in individual capacity. Paragraphs No.17, 18 and 27 of

the plaint (besides other paras) are clearly demonstrating

alleged infringement of private rights . Said paragraphs are as

under:-

“17. That in continuation of encroachment, the

defendant No.1 to 3 have started constructing the
boundary wall around the playground for
conversion thereof into the parking area of
Marquee and thus practically restrained the
public at large in general and the plaintiff in
particular to have a free access to the
playground and thus causing nuisance .”

“18. That the act of the defendant No.1 to 3 to

construct Marquee is not only against the
Regulations but also amounting to nuisance as
the entire vicinity is comprised upon the
residential houses and the Marquee/event
Management Lawn/Banquette Hall or any such
like activity will create nuisance in the area.”

“27. That the construction of Marquee in the

area on land adjacent to the playground in front
of the property No.99 -B and 99-C street 6, Phase
III, Gulrez Housing Society, Rawalpindi will
create nuisance due to noise, traffic, commercial
activity, rush, late night gatherings of
nonresidents of area, movements of vagabonds
under the garb of functions etc. etc. for the
public at large in general and for the plaintiff in
particular. The plaintiff is personally aggrieved
of the illegal construction, encroachment and
proposed activities in the Marquee. ”
(Underlining added)

27. Now coming to another argument Syed Qalab

Hussain, Senior Advocate that construction of marriage hall

adjoining to house/property of the Appellant is the matter

purely to be seen by Rawalpindi Development Authority

(RDA)/Respondent No. 5 and the Appellant/Plaintiff despite

being neighbour has no concern or cannot maintain action . It

RFA No.172 of 2016 (Judgment) 16

can be seen from perusal of impugned order that this

argument has influenced the decision of learned Trial Court ,

as already observed above . We are afraid that such

assumption to non-suit the Appellant is against the basic

principles of tort of nuisance . Nonetheless, permission can be

a defense or a mitigation factor, subject to examination of

other important features . Factors like (i) level of interference

(ii) public utility as well as benefits to public of the alleged

conduct and harm being suffered by those who may be

affected (or being effect ed or already suffered loss) and its

magnitude or gravity, (iii) the original utility of land , and (iv)

nature of locality etc., were yet to be seen through evidence.

We do not want to go into further details as to the permission

by Rawalpindi Development Authority /Respondent No. 5, if

any granted, as the case is still at the initial stage.

28. There can be no liability to anyone for doing what

the law permits, but subsequent permissions from the local

authority cannot always justify nuisance or can be taken as a

license to create nuisance , especially when it is done in a

wrongful or negligent manner. Any damage to private

individuals caused by the unreasonable method and manner of

operation entails liability notwithstanding permission of local

authority, subject to features mentioned above . The existence

of permission by authority (if justifiable and meets the

criteria of law, reasonableness and public interest) , refusal of

injunction may be justified but rarely determines actionability

RFA No.172 of 2016 (Judgment) 17

and it can influence the remedy. Thus, it would not justify to

non-suit someone strait -away by applying Order VII Rule 11

of CPC, despite injury or loss. Further guideline s, in this

regard, are given by the Honourable Sind High Court in the

cases tiled “Dr. SHAHZAD ALAM and 2 others versus Beacon

Light Academy and 5 others “ (2011 CLC 1866) and

“MUHAMMAD ISSA ABBASI through Legal Representatives

and others v. ABDUL QADIR through Legal Heirs and others “

(PLD 2013 Sindh 60 ). Relevant part of Paragraph-14 of

Dr. Shahzad Alam ’s case (supra) is as follows:

“14. In a leading English authority, Shelfer

v. City of London Electric Lighting Com pany
[1895] 1 Ch 287, the Court of Appeal observed
as follows: ---

“Neither has the circum stance that the

wrongdoer is in som e sense a public
benefactor (e.g. a gas or water com pany or a
sewer authority) ever been considered a
sufficient reason for refusing to prot ect by
injunction an individual whose rights are
being persistently infringed .” (p.316)

Thus, individual rights were regarded as

trumping any public interest that sought to
outweigh those rights. But those were Victorian
times, when (at least in England) p roperty
rights were regarded as sacrosanct. Many
decades later, in Miller v. Jackson [1977] 3 All
ER 338, the Court of Appeal was confronted, in
the context of nuisance, with the issue of
balancing private rights against the public
interest. Lord Denning M R characteristically
stated as follows :-

“There is a context here between the

interest of the public at large and
the interest of a private individual.
The public interest lies in protecting
the environment by preserving our
playing fiel…. The private inte rest
lies in securing the privacy of his
home and garden without intrusion
or interference by anyone… As
between their conflicting interests I
RFA No.172 of 2016 (Judgment) 18

am of opinion that the public

interest should prevail over the
private interest.” (pg. 345) ”
(Emphasis supplied)

However, a subsequent Court of Appeal,

in “Kennawey v. Tounsin ” [ 1980] 3 All ER
329, refused to follow Miller v. Jackson on the
ground that it was not consistent with what had
been held in Shelfer’s case (see at pg. 333b). A
leading treatise on the law of torts, Clerk and
Lindsell on Torts (18th ed., 2000 ), after
considering the above cases, suggested as
follows:

“….It is submitted that the fact that the

defendant’s activity represents a public
interest of a valuable social or econom ic kind
should not confer on him a licence to comm it
what would otherwise be a tort (unless he can
show statutory authority). But since the
question whether a certain activity and
interference amounts to a nuisance necessarily
involves the balancing of competing inte rests, it
seems desirable and even essential to take the
nature of those interests fully into account, and
it would appear that this was what Lord
Denning was doing in his assessment. Public
interest therefore is not in itself a defence, but
a factor in assessing reasonableness of user.”
(para 19-72)

In my view, the foregoing extract from

“Clerk and Lindsell ” represents the better
view..”

29. As per our considered view, w hile rejecting Plaint

under Order VII Rule 11 of the Code of Civil Procedure,

1908, learned trial Court has further ignored Order VI of the

Code of Civil Procedure, 1908. It is overlooked that the

Appellant was only required to give material facts in the

Plaint as per Order VI Rule 2, CPC and the further and better

particular of the cla im, it could have been ordered under

Order VI Rule 5 of the Code of Civil Procedure, 1908. In case

after receiving the evidence and on the basis of public

interest, Court reaches to the conclusion that injunction may

RFA No.172 of 2016 (Judgment) 19

cause injustice to ot hers or harm to the public interest, the

law settled by the Honourable Supreme Court in the case

titled “Syed PHOOL BADSHAH and others versus ADBP

through Manager, Peshawar Branch and others “

(2012 SCMR 1688) should have been followed:

“7. The provisions of Order VII, Rul e 7 of the

Civil Procedure Code empowers the Court to
grant an effective or ancillary relief even if not
prayed, as the plaint as whole is to be looked
into in order to determ ine relief for which
plaintiff is entitled , however, no relief can be
granted upon the facts and documents not
disclosed in the pleading”.
(Emphasis supplied)

30. The aforesaid view has been reaffirmed in the case

titled “Mst. AKHTAR SULTANA versus Major Retd.

MUZAFFAR KHAN MALIK through his legal heirs and others

“ (PLD 2021 Supreme Court 715) as follows:

“40. Such an objection has earlier been

agitated before, and decided by, the superior
Courts of our jurisdiction in several cases. And
the judicial consensus that has evolved is that
courts are to look at the substance of the pl aint
not its form , and in appropriate cases the
courts can m ould the relief within the scope of
the provisions of Order VII, Rule 7, Code of
Civil Procedure Code, 1908 (“C.P.C”). The
courts are em powered to grant such relief as
the justice of the case m ay dem and, and for
purposes of determining the relief asked for or
the relief to which the plaintiff is entitled, the
whole of the plaint is to be looked. The
provisions of Order VII, Rule 7 of the C.P.C.
empowers the courts to grant an effective or
ancillary relief even if it has not been
specifically prayed for.”
(Emphasis supplied)

31. In view of the above discussion, i t also appears

that learned Trial Court has gone into overexcited mechanics

instead of following the law laid down by the Honourable

 RFA No.172 of 2016 (Judgment) 20

Supreme Court in the case titled “Javaid Iqbal versus Abdul

Aziz and another” (PLJ 2006 SC 127), wherein it is clearly

observed that the Code of 1908 is enacted to regulate the

proceedings and mainly contains procedural laws , which are

subservient to the cau se of justice and, therefore, such laws

neither limits nor control the power of the Court to pass an

Order or Decree, which is necessary to do complete justice in

the facts and circumstances of the case.

32. We have examined the plaint, record and imp ugned

judgments from all angles and arrived at the conclusion that

rejection of plaint, in the circumstances and at the given stage

of the case, is unjustified, therefore, this Appeal is accepted,

Judgment and Decree dated 28 -10-2016 are set aside and

consequently, instant case shall be deemed to be pending

before learned Trial Court, which shall complete evidence in

the case and decide the same within five months from receipt

of the certified copy of this Judgment , even by conducting

day to day hearing, i f so required.

(JAWAD HASSAN) (SULTAN TANVIR AHMAD)

JUDGE JUDGE

Announced in open Court today .

JUDGE JUDGE
Approved for reporting
Ra o A z m a t / *