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Revision Application No.137 of 1981, decided on 11th March, 1987.

---Ss.42,54,55 & 56--Suit for declaration and permanent injunction- Applicant-plaintiff in addition to relief of declaration seeking relief of permanent injunction--Trial Court granting both reliefs but First Appellate Court dismissing suit on the view that as applicant-plaintiff was not entitled .to relief of declaration, he was also disentitled to relief of injunction--Counsel for respondents unable to satisfy Court that relief of injunction claimed by applicant-plaintiff in his suit could not be granted without granting relief of declaration claimed in suit--Relief of injunction claimed by applicant-plaintiff being distinct, separate and independent relief, First Appellate Court could net throw out the whole suit on consideration that relief of declaration could not be granted under the law--Such important aspect of case having been completely overlooked by First Appellate Court - while allowing appeal of respondent, its order, held, amounted to an order in excess of jurisdiction--Revision application accepted, judgment and decree of First Appellate Court set aside and case remanded back to Appellate Court to rehear and decide appeal in accordance with law.

Manzoor Ahmed Khan and S.H. Mujtaba for Applicants.

Sabir Husain Kazilbash for Respondent No.3.

Date of hearing: 11th March, 1987.

This Revision Application under Section 115, C.P.C. is filed by the plaintiff /applicant against the judgment and decree of the 1^st Appellate Court whereby the learned Ist Appellant Court reversed the judgment and decree of the trial .Court and dismissed the suit of applicant/ plaintiff.

The applicant instituted suit No.2627/1975 for DECLARATION and permanent injunction against respondents on the allegations that the plot leased out to respondent No. by the respondent No.3 is a residential plot adjacent to the plot of the petitioner/ plaintiff which , has been illegally converted into a Clinic/Nursing and Maternity Home which amounted to contravention of the specific covenant of lease of the plot besides causing nuisance and discomfort to the applicant/ plaintiff who is residing adjacent to the plot of respondent No.1. The suit was resisted by respondent No.1 who denied that there was. complete conversion of the plot from residential to commercial use and it was further asserted that the use of the premises as Clinic while it is also used by respondent No.1 as her residence did not amount to any breach of the conditions of the lease. The respondent No.3 in his written statement however alleged that there was a breach of the covenant in the lease executed in favour of the respondent No.1 and that respondent No.3 is contemplating to take appropriate action against respondent No.1. On the basis of above controversy between the parties following issues were framed by the trial Court;

"(1) Whether the plaint does not disclose a cause of action

(2) Whether the suit is barred by section 42 of the .Specific Relief Act

(3) Whether the suit is barred .by section 56 (g)(i)(k) of the Specific Relief Act

(4) Whether the suit is barred by the provisions of section 92 of the C.P. Code

(5) Whether the suit is bad for want of compliance with the provisions of Order I, R.. 8 C P C

(6) Whether the plaintiff has no locus standi to institute the suit

(7) Whether the building over the suit plot is constructed in accordance with approved plan

(8) Whether the clinic/nursing maternity home constitutes a nuisance to the locality and the plaintiff

(9) Whether the suit has been instituted on account of malice

(10) Whether the defendant No.1 is not entitled to convert the house into a clinic/nursing/maternity home or hospital under the KDA and KMC Rules and by lease and it affects the privacy of the plaintiff

(11) Whether the KMC defendant No.1 is not entitled to amend the plaint

(12) What should the decree be

Issues No.1 to 6 which are legal issues were decided in favour of the plaintiff /applicant by the trial Court while issue No.7 was answered in favour of respondent No.1. On issue No.8 the trial Court found that conversion of house of respondent No.1 into a clinic/ maternity and nursing home shall cause disturbance and annoyance to applicant and thus constituted a nuisance to plaintiff. It was however, found that applicant could not prove it to be a nuisance to the locality. Issue No.9 was held as not proved and on issue No.10 which is the most crucial issue in the case the learned trial judge found that the applicant was able to prove and establish conversion of premises from residential to commercial use and accordingly the suit was decreed both for declaration and permanent injunction against respondent No.1. In appeal the learned 1st Appellate Court did not agree with the learned trial judge on issue No.8 and held that the alleged inconvenience or discomfort in order to constitute a nuisance must be of a substantial character while the inconvenience and discomfort 'alleged by the applicant/plaintiff was not of that nature and he accordingly reversed the findings of trial Court on this issue. The learned 1st appellate Court also found under issues Nos.2 and 3 that the suit was not competent under section 42 of the Specific Relief Act and as such the relief of declaration claimed by the, applicant/ plaintiff could not be granted by the Court. The learned 1st appellate court accordingly further took the view that as the applicant was not entitled to relief of declaration he was also disentitled to the relief of injunction. On this view of the matter, the learned 1st appellate Court though made passing reference to other issues in the suit, but, without deciding them reversed the judgment of trial Court and dismissed the suit of applicant /plaintiff as not maintainable. After hearing the learned counsel for the parties I am of the view that even if I agree with the learned 1st appellate Court that the declaration sought by the applicant was not permissible under the law in the circumstances of the case, the learned 1st appellate Court clearly overlooked the fact that in the suit the applicant/ plaintiff in addition to the relief of declaration had also sought the relief of permanent injunction which was quite independent of the relief of declaration claimed in the suit. The learned counsel for the respondents were unable to satisfy me that the relief of injunction claimed by the applicant/plaintiff in his suit could not be granted without granting relief of declaration claimed in the suit. As the relief of injunction claimed by the applicant/ plaintiff was distinct, separate and independent relief, the learned first appellate Court could not throw out the whole suit on the consideration that the relief of declaration could not be granted in favour of applicant under the law. As this important aspect of the case was completely overlooked by the learned 1st appellate Court while allowing the appeal of respondent No.1, it amounted to an order in excess of jurisdiction. I accordingly accept this Revision Application set aside the judgment and decree of the Ist appellate Court but in the circumstances of the case remand the case back to the Ist appellate Court to rehear the appeal and decide the same in accordance with the law. As the case is remanded back I leave it open to the appellant to reagitate all the points before the first appellate Court which will rehear the whole appeal and take a fresh decision in the case in accordance with law without being influenced in any manner by the earlier decision of Ist appellate Court. There will be no order as costs.

S.Q./M-253/K Application accepted.

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