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Constitutional Petition No. D-209 of 1987, decided on 24^th March 1987.

---Ss.42 & 54--Civil Procedure Code (V of 1908), S.91--Constitution of Pakistan (1973), Art.199--Suit for declaration and permanent injunction against private nuisance--Both Courts below reaching conclusion that acts and omissions alleged by plaintiff-respondent against petitioner were substantially established in evidence to relate to private nuisance--Statement in plaint and evidence produced in case Making it clear that the allegations made by respondent against petitioner were restricted to nuisance and obstruction caused to adjoining two tenants in same building--No allegations that acts and omissions on part of petitioner caused annoyance, inconvenience to public at large or to persons residing in vicinity--Courts below, held, rightly reached conclusion that acts alleged and proved before tie Courts did not amount to a case of public nuisance and as such no permission under S.91, C.P.C. was necessary.

---Art.199--Civil Procedure Code (V of 1908), O.XLI, R.27--Writ jurisdiction--Additional evidence--Provisions of O.XLI, R.27, C.P.C. do not give any right to any party to produce evidence at appellate stage--Necessity for additional evidence, firstly, must be felt by Court itself and, secondly, evidence must be such as without that the Court is unable to decide the controversy in the case finally--None of the two ingredients of O.XLI, R.27, C.P.C. being present in case, the First Appellate Court had rightly refused to grant application for production of additional evidence--Judgment and decree passed by Trial Court as well as Appellate Court, held, suffered from no defect of any jurisdictional character so as to attract jurisdiction of High Court under Art.199 of the Constitution (1973).

U. Niamat Moulvi for Petitioner.

--The petitioner above-named has filed this Petition under Article 199 of the Constitution challenging the judgment and decree passed by the 17th Civil Judge, Karachi in Suit No.396/1972 which was instituted by respondent No.1 for relief of declaration and permanent injunction against the Petitioner .and which has been confirmed in appeal by the 1st Additional District Judge, East. Learned counsel for the Petitioner has raised two fold contention in the above matter before us. It is firstly contended that the judgment and decree passed by the Courts below in favour of the respondent No.1 in the above suit is wholly without jurisdiction as the suit was hit by section 91 of the Civil Procedure Code which prohibited filing of a suit by a private person without having first obtaining consent of the Advocate-General in this regard. The second contention of the learned counsel for the petitioner is that the First Appellate Court wrongly declined the application of the Petitioner under Order 41 Rule 27 C.P.C. filed before that Court for permission to lead additional evidence in the case. After hearing the learned counsel for the Petitioner at length we are of the view that no case for interference in exercise of constitutional jurisdiction is made out in the above case. The respondent No.1 instituted a suit against the Petitioner alleging that the Petitioner had. trespassed into an open space and has illegally converted a common toilet provided for use of the other two adjoining tenaments of the building which amounted to a nuisance. The relevant paragraphs of the plaint containing the above allegation of Respondent No.1 are paragraphs 5 and 6 which read as follows:-

"5.That the Defendants have trespassed into the open space and have converted the common toilet as their pantry. By breaking the W.C. Basin and the flush tank they have rendered this toilet completely unserviceable. The open yard is being used partly as a junk yard where milk and beverages bottles and cases are lying scattered. Some portion of the yard as well as staircase is being used for peeling vegetables. Peels of vegetables, spilt milk, empty cans and bottle provide breeding places for Cockroaches, files and other insects. The neat and airy space designed to provide fresh breeze to the main staircase leading to all the tenants of the building is stinking on account of the garbage accumulated and no decent and respectable family is willing to occupy the flats overhead in such an unhygienic and insanitary condition created by the Defendant. Their presence has reduced the rental value of all other tenements and the plaintiff reserves a right, to claim damages for the same.

6. That the permanent and casual staff employed by the Defendants uses the space as a resting place and at 3.00 a.m. in the night when the Defendants close their business crates of bottles and basins full of left overs, are thrown out and dumped in the yard, abuses are exchanged on sharing the tip money collected during the day. Thus at such an odd hour in the nights the people residing in the flats in the building are disturbed in their sleep. They have complained against these nuisances but the Defendants remain indifferent to these protests. Two residential tenants after lodging protests left the premises. The flats remained vacant for several months and ultimately had to be let out at reduced rents."

These allegations were denied by the Defendants but both the Courts below reached the conclusion that the acts and omissions alleged by the respondent No.1 against the petitioner were substantially established in evidence and that they amounted to private nuisance. Mr. U. Niamat Moulvi, learned counsel for the petitioner contends before us that on facts and law the case alleged against the respondent was of a public nuisance and as such the case could either be instituted by the Advocate-General under Section 91 C.P.C. or it could be instituted by two or more persons who had obtained consent of the learned Advocate-General in writing for institution of such a suit. We are unable to accept the above contention of the learned Counsel. Neither from the statement in the plaint nor from the evidence on record it appears that the case pleaded by the respondent No.1 against the petitioner related to any public nuisance. Both from the allegations in the plaint and from the evidence produced in the case it is quite clear that the allegations made by the respondent No.1 in the suit against the Petitioner were restricted to the nuisance and obstruction caused to the adjoining two shopkeepers in the same building. There was no allegation in the plaint or in the evidence before the Court that the acts and omissions on the part of the petitioner caused annoyance, inconvenience to the public at large or to the persons residing in the vicinity. In the absence of these allegations the Courts below rightly reached the conclusion that the acts alleged and proved before the Courts did not amount to a case of public nuisance and as such no permission as required under section 91 C.P.C. was necessary in the case. The second contention of the learned counsel for the Petitioner before us is that the refusal by the first appellate Court to allow the appellants to lead further evidence under Order 41 Rule 27 C.P.C. was illegal and contrary to law. We have seen the order of the learned first Appellate Court in this regard and we are unable to agree with the learned counsel. Order 41 Rule 27 does not give any right to any party to produce evidence at the appellate stage. It is a well settled law that the necessity for additional evidence, firstly, must be felt by the Court itself and, secondly, the evidence must be such as without that the Court is unable to decide the controversy in the case finally. None of these two ingredients of Order 41 Rule 27 C.P.C. were present in the case and as such the first appellate Court rightly refused to grant the application under Order 41 Rule 27 C. P. C. The judgment and decree passed by the trial Court as well as first appellate Court suffer from no defect of any jurisdictional character so as to attract the jurisdiction of this Court under Article 199 of the Constitution. There is no merit in this Petition which is accordingly dismissed summarily.

S.Q./A-46/K Petition dismissed.

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