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Civil Revision No. 1269/13 of 1984 in Civil Miscellaneous Nos. 3706/C and 3707/C, decided on 1st August, 1984.

‑‑ Ss. 42 & 54‑ Suit for declaration with relief of injunction Competency of Declaratory suit with consequential relief of perpetual injunction to prevent apprehended injury damage, held, would be competent in law‑Relief of injunction being discretionary. Court is not bound to grant same in every case of nuisance‑Such relief cannot be granted unless Court was satisfied as to its real need.

Muhammad Bashir and 5 others v. Allah Dad and another P L D 1983 Lah. 141 and Abdullah v. Muhammad Amin P L D 1968 Lah. 1235 rel.

‑‑ Ss. 42 & 54‑Civil Procedure Code (V of 1908), S. 115 & O. VII, R. 1‑Revisional jurisdiction, exercise of‑Apprehended danger to property being far‑fetched and without any reasonable basis as apparent from averments in plaint, plaintiffs, held, could not maintain suit for discretionary relief of injunction ‑ Finding of First Appellate Court declining discretionary relief of injunction based on cogent reasons would not call for interference in revisional jurisdiction of High Court.

‑‑ S. 91‑Word "public nuisance", connotation of‑Apprehended danger to graveyard, Janazgah and central mosque through excava tion carried out by defendants averred in plaint ‑ People visiting such places not only coming from adjoining locality but from all parts of country as averred in plaint‑Where allegations in plaint make it quite clear that apprehended danger/nuisance related to public in general and was not limited to residence of particular locality, such case, held, would be of "public nuisance".‑[Words and phrases].

Ardeshir Divanji Mistri and others v. Aimai Kuvarji and others A I R 1929 Bom. 94; Chaudhary Bibhuti Naravant Singh and others v. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur A I R 1940 Pat. 449; Governor General in Council and another v. Awadhoot Balwant Rao A I R 1946 Nag. 228; Hakim Mahmud Hasan and others v. Lala Amba Prasad and others 151 I C 263; Abdullah and others v. Muhammad Amin P L D 1968 Lah. 1235; and Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others P L D 1978 Lah. 113 ref.

‑‑ S. 91 ‑Penal Code (XLV of 1860), S. 12‑Words "public" and "public nuisance", connotation of‑Word "public" as defined in Penal Code, 1860, would include any class of public or any com munity‑Even if apprehended wrong was likely to affect only residents of particular locality, "public nuisance", held, would be constituted thereby so as to attract provisions of S. 91, Civil Procedure Code.‑[Words and phrases].

Ch. A. Waheed Saleem for Petitioner.

Altaf Muhammad Khan for the State.

Facts necessary for the disposal of this revision petition are that the petitioners who claimed to be the inhabitants of Mohallah Dar‑ul‑Fazal Rabwah, District Jhang brought a representative suit under Order I, rule 8, C. P. C. on behalf of the residents of Mohallah Dar‑ul‑Fazal for a declaration that the contemplated action of defendants‑respondents to lease out the hill (shown red in the site plan annexed with the plaint) lying adjacent to the said Mohallah for excavation of stones was illegal, against human rights, injurious to religious feelings and dangerous to life and property of the plaintiffs‑petitioners. A perpetual injunction by way of consequential relief was also sought to restrain the respondents from leasing out the hill in question.

2. Case set up by the petitioners in the plaint was that the hill in question was adjacent to Mohallah Dar‑ul‑Fazal and quite close to the said hill is the graveyard of Rabwah Town known as "BAIHISHTI MAKBRA" which graveyard is of international importance wherein lie buried people of world fame as also other people from different parts of the country and which is visited day and night by men and women to offer prayers for the departed souls. It was further averred in the plaint that quite adjoining to the aforesaid graveyard and the hill is "JANAZGHAH" where funeral prayers are held and that the central mosque is also situate in front of Mohallah Dar‑ul‑Fazal which Mohallah has a large population.

Having made these averments, petitioners further pleaded that excavation of stones would involve blasting of the hill which would cause inconvenience and annoyance to the residents of the locality as also danger to the life and property.

3. Learned trial Court, on perusal of the plaint came to the conclu sion that the suit was in respect of public nuisance which could be instituted only with the previous consent in writing of the Advocate‑General. It was further found that "it is not shown that any person has any independent right to institute the suit against the defendants". On these findings, learned trial Judge held that the suit was barred under section 91, C. P. C., and therefore, rejected the plaint under Order‑ VII, rule 1 l(d), C. P. C. by order, dated 29‑5‑1984.

4. Petitioners preferred an appeal which, too, was dismissed in limine by the learned District Judge, Jhang, though for different reasons, vide his judgment, dated 14‑6‑1984. Learned District Judge took the view that the plaint did not show that the petitioners had any legal right in the hill and that no case of private nuisance having been made out from the plaint, petitioners had no locus standi to file the suit.

5. Petitioners have invoked the revisional jurisdiction of this Court under section 115, C. P. C. to call in question' the aforementioned two Judgments and decrees of the learned Courts below.

6. I have heard the learned counsel for the petitioners as also Mi. Altaf Muhammad Khan, Advocate who appeared on behalf of the learned Advocate‑General at the limine stage, to assist the Court.

7. Learned counsel for the petitioners submitted that the learned District Judge misconceived the petitioners' suit and came to an erroneous, conclusion that the petitioners had no locus standi to file the suit "as the plaint does not show any legal right or character of the appellants in the hilt to dispute and no case of private nuisance either is made out from the plaint in this case". Learned counsel pointed out that undoubtedly the peti tioners did not claim any right or interest in the hill in question. Their grievance laws was that consequent upon the grant of the lease, blasting operations for excavation of stones would commence which would cause annoyance to the inhabitants of the locality and endanger life and property. Thus, the plaint, according to the learned counsel, disclosed cause of action and the finding of the learned District Judge to the contrary is not sustainable. In support of his submission, learned counsel relied upon Muhammad Bashir and 5 others v. Allah Dad and another (P L D 1983 Lah. 141). Question which came up for consideration in the precedent case was whether a suit for injunction was competent in case of anticipated/threatened nuisance Mr. Justice M. S. H. Qureshi (as his Lordships then was) after examining relevant provisions of the Easements Act and Specific Relief Act held "an action to prevent a threatened nuisance is thus covered by section 36(b) of the Easements Act, and section 54 of the Specific Relief Act". It was, however, observed that an injunction being a discretionary remedy "it is not to be granted unless the Court is satisfied as to its real need, particular ly where the injury is only threatened. Hence where an injunction is sought to prevent a certain act, on the ground of nuisance, the Court must be satisfied that the act, if done, will amount to nuisance. The Court is, however, not bound to grant an injunction in every case of nuisance In case there is a reasonable and probable cause for apprehending a disturbance of a right, an injunction can issue without waiting till the actual violation takes place". Taking this view of the matter, the Honourable Judge came to the following conclusion on the facts of that case: ‑

"I do not agree that the plaint does not disclose 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 then assertions of the respondents 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."

8. As held in the judgment afore‑referred, suit brought by the petitioners to prevent apprehended injury/damage was no doubt competent in law. However, as observed in this very judgment, relief of injunction is discretionary and the Court is not bound to grant it in every case of , nuisance and it is not to be granted unless the Court is satisfied as to its real need. It was also held in abdullah v. Muhammad Amin (P L D 1968 Lah. 1235), that a suit for injunction can be‑thrown out on the short ground that "the allowed damage to the plaintiff was perspective and apprehended rather than‑actual and real".

In the present case, injury complained of by the petitioners was based on their alleged apprehension expressed in the plaint in the following words:‑

Petitioners' apprehension, as can be seen from the abovequoted averments in the plaint was quite far‑fetched and without any reasonable basis in so far as at the relevant time neither the hill in question has been leased out nor any operations for excavation of stones has been started. It appears that the learned District Judge had these aspects of the case and the aforementioned legal position in view when he dismissed the petitioners appeal by observing that no case of nuisance was made out from the plaint. What the learned District Judge probably meant was that on the assertions made in the plaint, petitioners did not have reasonable and probable cause for their apprehension and as such they could not maintain suit for discretionary relief of injunction. Thus, viewed, impugned judgment of the learned District Judge does not call for interference in revisional jurisdiction of this Court.

9. Learned counsel next assailed the finding of the learned trial Court that the petitioners' suit was in respect of a public nuisance and was therefore, barred under section 91, C. P. C. as it was instituted without the previous consent of the Advocate‑General. Learned counsel submitted that the apprehended injury/nuisance complained of in the suit was likely to affect a particular class of the residents of Mohallah Dar‑ul‑Fazal and not the public in general and that being so, petitioners' suit did not relate to public nuisance and the same was, therefore, maintainable without the consent of Advocate‑General and without proof of special damage. According to learned counsel, this was a case of private nuisance and not public nuisance. In support of his submission, learned counsel referred to Ardeshir Jivanji .44istri and others v. Aimai Kuvarji and others (A I R 1929 Bom. 94), Chaudhary Bibhuti Narayan Singh and others v. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur (A I R 1940 Pat. 449), Governor‑General in Council and another v, Awadhoot Balwant Rao (A I R 1946 Nag. 228), Hakim Mahmud Hasan and others v. Lala Amba Prasad and others (151 1 C 263), Abdullah and others v. Muhammad Amin (P L D 1968 Lah. 1235) and Abdur Rahman Mobashir and 3 others v. Shed Amir Ali Shah Bokhari and 4 others (P L D 1978 Lah. 113).

10. I have gone through all the cases cited by the learned counsel for the petitioners. It is not necessary to examine each case separately because in all of them nature, scope and application of section 91, C. P. C. has been discussed and it has been held that a suit in respect of a public nuisance can only be filed with previous consent of Advocate‑General unless the plaintiffs allege that they have suffered some special damage i. e. the damage over and above that suffered by the public at large. In 1940 Pat. 449, doctrine of special damage has also been discussed and it has been laid down that this doctrine is based on the principle that there can be no private action for a public wrong. Section 91(2), Cr. P. C. also shows that there is no bar to a private person bringing a suit for public nuisance in which he has suffered special damage. Patna authority has also dealt with the nature and scope of the provisions of Order I. rule 8, C. P. C. and it was held "Order 1, rule 8 is not intended to allow individuals to sue on behalf of general public but to enable some of a class, having special interests, to represent the rest of the class. It is merely an enabling provision. It provides no new right of suit, but merely a right of represen tation where a right of suit already exists, and that right of suit is provided by the invasion of the special rights of the limited class represented".

11. Question which arises for consideration in this case is as to whether the apprehended inconvenience/annoyance and danger to life and property was confined only to the inhabitants of Mohallah Dar‑ul‑Fazal on whose behalf, according to the learned counsel, the suit was brought or the public in general was also likely to be affected thereby. According to the allegations made in the plaint, injury/wrong apprehended from the prospective excavation of stones from the hill is likely to affect not only the residents of Mohallah Dar‑ul‑Fazal but also all those people who would go to the graveyard known as BAIHISHTI MAKBRA, "JANAZGHAH" and the central mosque. Quite understandably number of such people would be indefinite. It is not the case of the petitioners that the people coming to the graveyard, Janaza Gah and the central mosque would be from amongst the residents of Mohallah Dar‑ul‑Fazal only. It was not denied by the learned counsel that such people can come from any part of the country and even from abroad. In this context, it may be noted that it is stated in the plaint that the graveyard known as " BAIHISHTI MAKBRA " is of interna tional importance wherein persons of world fame and other people from different parts of the country are buried. Reference in this behalf may also be made to the averments made in paras. 10 and 11 of the plaint quoted in para. 8 above. Thus, on the allegation made in the plaint it is quite clear that the apprehended injury/nuisance related to public in general and was not limited to the residents of a particular Mohallah. It was, there fore, a case of public nuisance.

12. Even if it be assumed for the sake of argument that the apprehen ded wrong was likely to affect only the residents of Mohallah Dar‑ul‑Fazal, that would also constitute public nuisance so as to attract the provisions of section 91(1), C. P. C. It was held in A I R 1936 Oudh 154 "the Muhammadans of the neighbouring villages are no doubt a section of the public, but the word "public" has been defined in the Indian Penal Code in section 15 as including any class of the public, or any community. The Muslim community or the Muslims of the neighbourhood would, therefore, be included in the word "public" which is used in the expression "public nuisance" in section 268, Penal Code".

Viewed from whatever angle, the impugned finding of the learned trial Court that it was a case of public nuisance and thus covered by section 91, C. P. C. is not open to any exception.

13. Upshot of the above discussion is that the impugned judgments do not suffer from any illegality so as to warrant interference in revisional jurisdiction of this Court. Revision petition is, therefore, dismissed in limine.

A. A. Revision dismissed.

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