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Civil Petition No. 193 of 1985, heard on 4th May, 1985.

(Against the judgment and order dated 17‑9‑1984 of the Lahore High Court, Lahore, in Civil Revision No. 1269‑D of 1984).

‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 91 & O. VII, r.11‑Regulations of Mines and Oilfields and Mineral Development (Government Control) Act (XXIV of 1948), S. 5‑‑Leave to appeal sought by petitioners/plaintiffs against rejection of their plaint under O. VII, r.11, Civil Procedure Code, on ground that suit was barred under S.91, Civil Procedure Code‑‑Petitioners, who brought suit and sought injunction against proposed auction of a site adjoining locality where they resided, under Regulation of Mines and Oilfields and Mineral Development (Government Control), Act 1948, for excavating stone, contending that apart from disclosing a case of public nuisance their plaint also disclosed in unmistakable terms a personal grievance of residents of locality which was a private personal nuisance and a suit was competent without permission as was provided under S. 91, Civil Procedure Code‑‑Contents of plaint and findings recorded by Courts below revealing a case of public nuisance rather than of private nuisance‑‑Sanction prescribed under S. 91, Civil Procedure Code, held, was, therefore, essential and suit was not competent without same Leave refused.

(b) Regulation of Mines and Oilfields and Mineral Development (Government Control) Act (XXIV of 1948)‑‑

‑‑‑S. 5‑‑Mining Concession Rules, 1960, r. 61‑‑Lease‑‑Lease of an area, held, does not authorise ipso facto carrying out of any mining operation unless required permission obtained‑‑It is not leasing out of area which should provide a grievance but undertaking of offensive activity for which permission has to be sought and is to be granted, when real grievance would arise.

Ch. A. Waheed Saleem, Advocate Supreme Court assisted by Hamid Aslam, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 4th May, 1985.

‑The petitioners who have been unsuccessful in all the three Courts in avoiding the rejection of their plaint under Order VII, rule 11, C.P.C. on the ground that the suit was barred under section 91 of the Civil Procedure Code seek leave to appeal against the judgment of the Lahore High Court, dated 17‑9‑1984 whereby a civil revision filed by them was dismissed.

The petitioners filed a suit in representative capacity seeking an injunction against the proposed auction of a site adojining the locality where they resided under the Regulation of Mines and Olifields and Mineral Development (Government Control) Act, 1948 for excavating stones. The cause of action disclosed in the plaint was that the hill adjoining their locality known as 'Dar‑ul‑Fazal' Rabwah was being leased out for excavating stones. The hill adjoined a public graveyard of International importance, a mosque where all the people of the locality gathered and was in close proximity to their own habitation Dar‑ul Fazal in Rabwah. Such an act, according to the petitioners, was likely to cause public nuisance to all those visiting the area and personal nuisance to those inhabiting the locality. Such an act of the authorities was stated to be against the law, against human rights and amounted to hurting the religious feelings of others apart from damage to property and person of those residing in the locality.

On an objection taken about the competence of such a suit in view of section 91, the trial Court held as follows:‑

"In the plaint, it is not shown that any person has any independent right to institute the suit against the defendants. There is no indication of any private nuisance in the plaint. It means that the suit is barred under section 91 of C.P.C. The plaint is, therefore, rejected under Order VII, rule 11 (d), C. P. C."

The appellate Court upheld the rejection of the plaint by holding an follows: ‑

"I am of the considered opinion that the appellants have absolutely no locus standi to file the suit and, therefore, the question of any cause of action having been made out in the plaint in this case does not arise. I, therefore, uphold the order of the learned Trial Court though for different reason. There is, therefore, absolutely no force in this appeal, which stands dismissed in limine."

In civil revision, the learned Judge examined over again the entire facts of the case and the law cited and recorded the following finding while dismissing the revision in limine:‑

"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."

The learned counsel for the petitioners contended before us that if the plaint disclosed only a case of public nuisance and nothing more, the bar of section 91, C.P.C. would apply and the plaint could on that account be rejected. However, the contention of the learned counsel for the petitioners was that apart from disclosing a case of public nuisance the plaint also discloses in unmistakable terms a personal grievance of the residents of the 'locality which was a private personal nuisance and on the basis of decision in Muhammad Bashir and 5 others v. Allah Dad and another P L D 1980 Lah. 141 a suit was competent without the permission as was provided under section 91, C.P.C. He also referred to the decision of this Court in Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi P L D 1976 S C 785 to contend that the mere fact that the plaintiff had asked for more than he could get did not give to the Court a discretion to refuse even that part of the relief to which he was legitimately entitled or could be entitled. The independent right of the residents of the locality was pleaded alongwith the public right existing in others on the basis of this Court's decision in Pakistan National Oils Ltd. and another v. Sattar Muhammad 1980 SCMR 686.

We have examined the contents of the plaint with the assistance of the learned counsel for the petitioners and concur with .the findings recorded by the Courts that in substance it is a case of public nuisance rather than of private nuisance. On that assumption, sanction prescribed under section 91 of the C.P.C. was essential and that suit was not competent without it. If, however, the petitioners feel that it is a case or it can be a case of personal nuisance confined to a locality or a smaller group not identifiable with the public in general then the rejection, of the plaint does not preclude them from recasting the grievance so as to make it competent under the law.

We also find on examination of the facts that only the lease of the area is in sight and whosoever is the lessee will still be controlled by rule 61 of the Mining Concession Rules which will nevertheless govern him and it provides:‑

"The lessee shall not carry on or permit to be carried on any mining operations at or upto any point within a distance of 100 yards‑ from any railway, reservoir, canal or other public works or buildings except with the previous permission of the licensing authority."

The lease of the area does not authorise ipso facto the carrying out of any such activity unless the required permission is obtained. Therefore, it is not the leasing out of the area which he should provide a grievance to the petitioners it is the undertaking of the offensive activity for which permission has to be sought and is to be granted, when the real grievance of the petitioners would arise.

We find that it is not a fit case for grant of leave which is refused.

M.Y.H. Leave refused.

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