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Regular Second Appeal No. 19 of 1966, decided on 5th February 1968.

S. 91(2) and Specific Relief Act (I of 1877), S. 54(j)‑Public nuisance‑Locus standi‑‑Act done or proposed to be done without statutory permission of respec tive authority‑Does not itself give locus standi to private person to bring suit for injunction against such act, being public nuisance in which person concerned has not suffered special damage‑A, without permission of Municipal Committee, opening door in public lane and using public drain otherwise in use of residents of public lane including B‑B, held, had no locals standi to file suit for injunction against A restraining him to use public lane and drain, on basis of perspective and apprehended rather than actual and real damage though rot specifically denied or contro verted‑Every person has right to have access to public highway or public lane‑No warrant in law or equity to deny a person such right merely because another similar right is also available to him.

Shah Muhammad v. Ramzan A I R 1921 Sind 155; Purna Chandra Chakrabarty and others v. Kalipura Ray arid another A I R 1942 Cal. 386 ; Hirendra Nath Datta v. Corporation of Calcutta and others A I R 1941 Cal. 386 and Krishna Kali Mali v. Babu Lal Shah and others A I R 1965 Cal. 148 distinguished.

Advocate‑General of Bombay v. Haji Ismail Hashant 13 B L R 274 ref.

Aziz Ahmad Bajwa for Appellants.

Gul Muhammad Khan for Respondent.

Date of hearing: 10^th and 11th January 1968.

This defendants' appeal has arisen in the following circum stances :‑

2. Muhammad Amin plaintiff‑respondent and Muhammad Abdullah, etc., defendants‑appellants are neighbours living at .he terminus of a blind alley in Maghiana town known is Kutcha Nehal Chand. From the site plan placed on the record as also from the judgments of the Courts below, it appears that the house of the plaintiff‑respondent opens in his blind alley, whereas the house of defendants‑appellants opens in the main street towards the west. It also appears hat there exists a drain for the outlet of water passing through the middle of Kutcha Nehal Chand starting in front T the house of Muhammad Amin plaintiff‑respondent. What really seems to have set the ball rolling in this litigation, 3 that the appellants who are relations inter se living jointly n House No. 41, Block No. 12, allegedly opened a new door in Kutcha Nehal Chand at point B' in plan Exh. P. 2 with a view to provide them access to and from this blind the Further, they also proposed to extend the existing pucca drain from its terminus at point A' to the wall of their house at point 'C', so as to enable them also to use the rain for the outlet of their water. This happened in July 1964, when the plaintiff‑respondent on 30th July 1964, brought a suit for permanent injunction claiming a two old relief, that the defendants‑appellants be restrained from constructing the proposed drain and that a mandatory injunct ion should be issued to them to close the new door opened them at point B'. It was also alleged that the installation of he new door and the proposed construction of the new rain were being done without the sanction of the Municipal committee and it amounted to an interference with his peaceful enjoyment of the use of the drain to the exclusion of the defendants‑appellants, which was going to result in a nuisance stagnation of water, etc. Besides raising other preliminary objections, the defendants‑appellants claimed the right of easement by prescription to use the door and the drain in question, and the trial was held on the following issues:‑--

(1) Whether the Municipal Committee, Jhang, is a necessary or proper party in the case

(2) Whether the door in dispute and the drain in question are in existence on the spot for the last more than twenty years, if so, what is its effect

(3) Whether the Act of construction of the door in dispute and the drain in question of the defendants is unlawful and illegal for the reasons, as enumerated in paras. 2 to 6 of the plaint

(4) In case, the above issue is proved whether the plaintiff is entitled to the perpetual injunction, as prayed for, against the defendants

(5) Whether in the case of dismissal of the suit, the defendants are entitled to special costs under section 35‑A, C. P. C. ; if so, to what extent

3. All the issues were found against the defendants appellants. The Municipal Committee was not considered to be a necessary party in the case. The defendants‑appellants' claim to the right of easement was not found to be estab lished, and the opening of the new door and the proposed construction of the drain were held to be wrongful and illegal acts having been restored to without the sanction of the Municipal Committee. In consequence, decree for perpetual injunction as well as mandatory injunction, as prayed for, was granted in favour of the plaintiff-respondent and against the defendants‑appellants till such time as the construction of the door and the drain in dispute were approved by the Municipal Committee.

4. The appellant fared no better in appeal before the learned Additional District Judge who upholding the findings of the learned trial Judge on all the issues, dismissed the appeal with costs. It was, however, made clear that the judgment would not stand in the way of the Municipal Committee to accord sanction to the appellants for opening a new door or constructing the drain in the lane, in case it chose to do so.

5. Feeling aggrieved, the appellants preferred the present R. S. A. which was admitted by this Court on 11th January 1966. The case was twice fixed for actual hearing on 19^th December 1967 and 19th December 1967, but could not be reached. Today, however, before the commencement of the hearing. Khawaja Shaukat Ali, presented on behalf of the appellants for the first time an application under Order XLI, rule 27, C. P. C. for summoning soma fresh documents from the Municipal Record, Jhang Town. I am afraid it is too late in the day to make such a prayer the grant of which even otherwise does not seem to be warranted in the interest of justice and as such it has got to be rejected.

6. At the very outset it was stated by the learned counsel for the appellants that they never claimed a right of easement in the door or the drain as seems to have been gathered by the Courts below from Issue No. 2 as framed relating to the existence of the door and the drain for the last more than 12 years. It was, however, contended that the defendant appellants case was that both the door anal the drain had been in existence since long. He, raised the following contentions before me:‑--

(1) That the finding given by the learned trial Judge in favour of the plaintiff respondent relating to the invasion of his privacy and upheld by the learned Additional District Judge was wholly unwarranted inasmuch as there was no such allegation contained in the plaint nor was it the subject matter of a specific issue ;

(2) that the Courts below had failed to appreciate the difference between a public and a private nuisance and an actionable and a non‑actionable nuisance. It was argued that in the first instance no nuisance was established by the impugned acts and certainly if at all, it was not a case of an actionable nuisance and as such the suit was not maintainable; the plaintiff having no locus standi to file the same;

(3) that the concurrent finding given by the Courts below that it was not an old door or drain already in use was based on misreading of evidence ; and

(4) that the plaintiff having no personal interest of an exclusive nature in the door or the drain, there was no question of any special damage to him and as such no mandatory injunction could be issued against the defendant appellants.

7. On the other hand, it was contended by the learned counsel for the plaintiff‑respondent that the defendants' acts having been concurrently found by the two Courts below as causing inconvenience to the plaintiff-respondent, he was entitled to go to the civil Court for an injunction. It was argued that existence of nuisance had been found to be established and that the Municipal Committee had already directed closure of the door which in fact had been actually closed at site rendering the appeal infructuous. It was further argued that since admittedly the defendant‑appellants lead not obtained the permission of the Municipal Committee open the impugned door or extend the drain whose competency to grant such a permission even at a subsequent stage had been specifically acknowledged and reserved by the two Courts below, the acceptance of appeal would amount to the perpetuation of an illegal act. It was next contended that since the defendant appellants had not said a word denying or controverting the allegations of nuisance, its existence had been found to be for a fact by the two Courts below and was not liable to be interfered with by this Court in second appeal. Placing reliance on Shah Muhammad v. Ramzan (A I R 1921 Sind 155), Purna Chandra Chakrabarti and others v. Kalipura Ray and another (A I R 1942 Col. 386) and illustration (j) of section 54 of the Specific Relief Act, it was argued that the plaintiff was perfectly within his right to bring the present suit whose maintainability was never challenged, as such, there being no issue on the question.

7. In the first instance there appears to be lot of force in the contentions raised by the appellants' learned counsel that the finding relating to the invasion of the plaintiff respondent's privacy is wholly uncalled for and beyond the scope of the pleadings of the parties on which no issue was framed. The learned counsel for the plaintiff‑respondent was constrained to concede this position. Likewise it had also to be admitted by him that his client never asserted the right of the exclusive user of the terminus of tire blind lane, claiming a right of easement by prescription or otherwise. Even otherwise the accrual of such a right by prescription on a public lane would be open to serious question. From the perusal of the site plan Exh. P. 2, placed on the record by the plaintiff‑respondent himself it becomes abundantly clear that the house of Muhammad Bakhsh constable lying contiguously towards tire East of the house of Muhammad Amin Plaintiff‑respondent and those of Muhammad Ali and Fayyaz lying opposite to it across the lane also opened in the same lane which provided access to them all, being used as a passage. Likewise, it cannot be denied that the drain passing through the middle of the lane was equally utilized by these residents. The only discriminating factor in regard to the house of the defendant‑appellants admittedly lying at the terminus of the blind lane, however, is that unlike the other houses it opened in the main street lying on its West. How ever, from the plaint as filed the allegations of special damage to the plaintiff by the impugned door and drain can clearly be spelt out. Of course, it cannot be denied that no specific issue as to the existence of actionable nuisance determining the maintainability or otherwise of the suit was framed. Nevertheless, it seems that the finding relating to the wrongful and illegal nature of the opening of the door and proposed construction of the drain for the reasons of having been done or proposed to be done without the permission of the Municipal Committee, was per se deemed to be tantamount to the estab lishment of an actionable nuisance. To this, aspect of the matter, I shall advert a little later.

8. In support of his contention that the finding relating to the recent opening of the door in the year 1964 was based on misreading of evidence, the learned counsel for the appellants drew my attention to the plan Exh. P. 1, purporting to show that it related to the house of Nihal Chand son of Jinda Ram, evacuee, and was sanctioned by the Municipal Committee on 11th April 1931. It was argued that the Courts below had erred in placing reliance on this document in coming to the conclusion that it gave no indication of any door opening into the blind lane, at least on 11^th April 1931. It was argued that in the first instance, the house transferred to and in occupation of the defendant‑appellants was not the same, but a different property No. 41 of Block No. 12, and secondly assuming that plan Exh. P. 1 pertained to the same house, new in possession of the defendant‑appellants as transferees, the fact that no door opened was shown in the plan sanctioned on 11th April 1931, or was proposed to be opened, would not establish that it was never opened on any subsequent point of time. I am afraid the contention cannot be upheld. The correct identity of the defendant‑appellants' house as described by the plaintiff‑respondent in his plaint was not questioned by the latter in their written statement and was in fact admitted to be correct. Even otherwise, a perusal of the site plan Exh. P. 1, clearly indicates that it pertains to the house of the defendant‑appellants lying at the farthest end of the blind lane. The mere fact, therefore, that on 11th April 1931, it belonged to Nihal Chand son of Jinda Ram, does not belie the fact that at the time of its transfer it existed in the Municipal record in the name of somebody else, who presumably might have purchased the same from Nibal Chand, the original owner. This possibility was conceded by the learned counsel for the appellant. However, in view of the statement of Ahmad Nawaz (P. W. 1), supported by documentary evidence, it appears that the Municipal Committee issued a notice to the appellants in July 1964 for having opened the door without its permission whose service was not denied. This finding of fact by the trial Judge was upheld in appeal by the learned Additional District Judge, and as such could not be interfered with lightly unless there were compelling reasons to do so, which are conspicuously absent in the instant case. As such the contention is overruled.

9. Before coming to the principal contention that it was not a case of actionable nuisance conferring a locus standi on the plaintiff‑respondent, I would like to dispose of another con tention, namely, that at best it was a case of threatened inconvenience or injury to the plaintiff‑respondent and not of any actual damage established by evidence. It may be straightaway observed that no doubt, in so far as the proposed extension of the drain was concerned, the allegations related to apprehended damage in future and not to an actual injury caused. Of course, such a grievance was made in respect of the door. Be that as it may, the fact remains that not a word was said in the written statement denying or controverting the allegations relating to apprehended damage and as such in the absence of a specific denial, the correctness of these allegations has to be presumed by implication which received further support from the statement of the plaintiff‑respondent.

10. Coming now to the principal point involved in the case, it may be observed at the outset that although the maintainability of the suit was challenged by the defendant appellants in their written statements, yet there was nothing to indicate that they insisted on or demanded the framing of an issue relating to the existence of an actionable nuisance in the first instance. Nevertheless, the issue being essentially one of legal character of considerable importance, going to the root of the matter, it could still be raised even at this late stage. It cannot be denied that the nuisance alleged by the plaintiff is in regard to the user of a public lane and a public drain passing through it, and there appears to be no earthly reason why a discrimination should be allowed against the defend an appellants precluding them from the use of a public lane or the drain which was utilised by other residents including the plaintiff‑respondent. Since the latter could not legitimately lay a claim to the exclusive enjoyment of the lane or the drain, nor could such a claim be based on the acquisition of a prescriptive right of easement, it is quite. understandable why such a claim was not asserted by the plaintiff in the plaint. The precise question that falls for determination, therefore is whether the impugned acts relating to the opening of the door and the proposed extension of the drain did in fact amount to an actionable nuisance, conferring on the plaintiff‑respondent a locus standi to challenge them in a civil A suit and further whether the mere fact that the two impugned acts were done or proposed to be done without the permission of ere Municipal Committee, would be good enough to lead to the establishment of such a nuisance. This in fact, is the crux of the matter. Since nuisance is alleged in relation to a public lane, it would be a case of public nuisance and it is well‑settled that a private individual has no right of action in respect of public nuisance unless he can show that he has sustained some damage over and above that suffered by the community at large. Otherwise normally in the case of a public nuisance the suit could be brought either by the Advocate‑General or by two or more persons having obtained his consent in writing, as envisaged by section 91 of the Civil' Procedure Code. Subsection (2) of section 91, C. P. C. would also show that there would be no bar to a private person bringing a suit for a public nuisance in which he has suffered special damage. Nonetheless, it cannot be denied that every person has a right to have access to a public highway oral public lane, and there appears to be no warrant in law or equity to deny a person such a public right, merely because another similar right is also available to him. Admittedly the defendant‑appellants did not obtain the sanction of the Municipal Committee which is the competent authority to accord or refuse the same, and also to deal with him by awarding adequate punishment for breach of rules. Evidently therefore, the complainant who felt aggrieved only because the defendant‑appellants also wanted to have access to the public lane to which undoubtedly they could lay a legitimate claim had no locus standi to the a suit merely on the basis of expressed apprehensions even though not specifically denied or controverted. In fact, the suit could be thrown out on the short ground that the damage complained of in the action of nuisance was not actual, butt merely apprehended. It is also clear from the judgments and decrees as passed drat the Municipal Committee could in its discretion regularise the opening of the new door or accord sanction to tire extension of the drain which could render the decrees infructuous being no longer capable of execution. On the point of maintainability of the suit, the learned counsel for the plaint. respondent specifically relied on Shah Muhammad v. Ramzan, Hirendra Nath Datta v. Corporation of Calcutta and others (A I R 1941 Cal, 386) and Krishna Kali Malik v. Babu Lal Shah and others (A I R 1965 Cal. 148), besides reference to Illustration (j) to section 54 of the Specific Relief Act. In Shah Muhammad v. Ramzan a Division Bench Authority, the appellant challenged the grant of perpetual injunction restraining hire from opening any window or apertures into his house so as to look into the house of the plaintiff ‑respondent whose women observed purdah. Their Lordships came to the conclusion that the threatened disturbance amounted to nuisance, besides interference with the right of easement, justifying the, grant of injunction and accordingly dismissed the appeal. The authority obviously proceeds on distinguishable facts and has no bearing on the case before me, in which as found earlier, there is hardly any question of the invasion of the plaintiff's privacy notwithstanding a favourable finding given by the Courts below. The facts in the next authority, Hirendra Nath Datta v. Corporation of Calcutta and others were that the Corporation of Calcutta granted sanction to one Purnendu Nath Tagore and others to proceed with the building of certain structure in relaxation of rule 30 of the Calcutta Municipal Act, which provided that a certain minimum space should be left out for purpose of ventilation and sanitation to prevent any inconvenience to the neighbours. The owners of the neighbouring premises filed an application before the High Court under section 45 of the Specific Relief Act for a mandatory order requiring the Corporation to rescind the illegal sanction. It was held by the learned Judge as follows:

"It must be assumed that in framing the statutory rules relating to the space to be left between buildings and their height, the Legislature had in view the general convenience of all residents in the municipal area in order to ensure proper ventilation and sanitation for the rate‑payers, and possibly adequate means of preventing the spread of fires from one building to another. In, this view of the matter, it is impossible to say that the petitioner would not be affected by any breach of the existing rules and, in my view, he has a clear right to insist that these rules shall be strictly observed by the Corporation in reference to‑ any plans for the extension of the Tagore building."

There could hardly be any dispute with the proposition but this too has absolutely no bearing on the case before me. Obviously the grievance made by the plaintiff in the instant case has nothing in common with that of the applicants in the case before his Lordship. To similar effect is the authority, Krishnakali Malik v. Baboo Lal and others. It was held that the plaintiff had a right to sue the defendant and ask for an injunction where the latter constructed his building in violation of the statutory municipal rules. It was observed by his Lordship that the right to sue was not barred by the provisions of the Calcutta Municipal Act and a right to sue was open to a litigant unless there was an express provision to the contrary by the statute. Relying on the earlier authority. Hirendra Nath Datta v. Corporation of Calcutta and others, it was held that the plaintiff had a right to bring the suit on the alleged wrong of the breach of Municipal Act, notwithstand ing the corporation s competence to deal with the wrong door. In the precedent case, the breach contemplated damage to the plaintiff by interfering with the right of enjoyment of his property. On the contrary in the instant case, the impugned act though in violation of the statutory rules having been committed without the permis sion of the Municipal Committee do not interfere with the legitimate enjoyment of the plaintiff's right of user of the lane or the drain with a view to prevent the defendant‑appellants from enjoying the same. The difference though rather subtle is clearly appreciable. It would be difficult to subscribe to the view that every breach of a statutory provision contained in the Municipal Ordinance would invariably amount to tortuous act amounting to an actionable nuisance. It has to be borne in mind that the plaintiff‑respondent did not seek removal of any obstruction to the enjoyment of his right of access to the land, but the action was sought to prevent the defendant‑appellants from having a similar access or enjoyment of a similar right of user. It was held in Advocate‑General of Bombay v. Haji Ismil Hasham (12 Bom. L R 274) that no mandatory injunction against a private individual for what was a mere nuisance in law would be granted except where it has been created and persisted in defiance of local authority, and that local authority had not sufficient power to enforce compliance with the law. I am inclined to thick that the authority is attracted with full force to the case before me. To similar effect is Illustration (j) to section 54 of the Specific Relief Act where a suit for injunction to restrain the defendant from making such alterations in his house as would interfere with the comfortable enjoyment of the adjoining houses have been contemplated.

In fact, the earlier authorities appear to be somewhat based on this Illustration. In support of his contention regarding the maintainability of a civil suit it was also argued by the learned counsel for the plaintiff--respondent that even under section 77 of the Municipal Ordinance a right of appeal was available to him against any order passed by the Municipal Committee if it caused inconvenience to him or reduced his property in value. This would however depend on what constitute a genuine inconvenience.

11. Even if one proceeds on the assumption of the maintainability of the suit as empathically argued by the learned counsel for the plaintiff‑respondent, I am clearly of the view that the suit could be thrown out on the short ground that the alleged damage to the plaintiff was perspective and apprehended rather than actual and real.

12. Coming now to the last contention that the relief sought by the appellant if granted to him would amount to perpetuation of an illegal act obviously appears to be mis conceived, inasmuch as, it proceeds on the erroneous assumption that the Municipal Committee would be incompetent to deal with the breach of a statutory provisions of the Municipal Ordinance. It was stated that in fact the door had already been closed by the defendant‑appellants in compliance with the direction issued by the Municipal Committee. It is not conceivable that in issuing such a direction the Municipal Authorities might have been influenced by the grant of a permanent injunction against the defendant‑appellants, and as such the direction might have been the result of the prejudice, in order to remove which should be removed in the interest of justice.

13. The upshot of the discussion is that the appeal succeeds and is hereby accepted with no orders as to costs. This shall, however, be without prejudice to any proceedings that the Municipal Committee might deem proper to have recourse to in the matter.

A. E. Appeal accepted.

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