P L D 2016 Sindh 26 (PLP)

Laws Cited

Representation

• ----S. 54----Civil Procedure Code (V of 1908), O. VII, R. 11 & S. 91---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for permanent injunction---Rejection of plaint---Principles---Public nuisance---Permission of Advocate General for filing suit on ground of nuisance under S.91, C.P.C.---Scope---Section 91 of C.P.C. provided that suit for declaration or injunction in respect of public nuisance could be filed by two or more persons with permission of Advocate General---Exception, however, was there, that principle as embodied in S.91(2) of C.P.C., which provided that provision of S.91(1), C.P.C. would not limit or otherwise affect any right of suit, which might exist independently---Plaintiff had claimed that conversion of residential unit into commercial unit (car showroom) had disturbed their peace, privacy and security, and that they would face constant disturbance and agony along with their families due to said illegal conversion---Plaintiff, on basis of said claims, had independent right to sue, and no permission of Advocate General was, therefore, required for filing of present suit---Present suit contained multiple prayers and permission of Advocate General under S.91 of C.P.C. would be required only to the extent of prayer regarding said conversion and not regarding other reliefs prayed for by plaintiff---Plaint could not be rejected in piecemeal---Plaint could only be rejected if all reliefs claimed by plaintiffs were barred under law---Even if one of the prayers was maintainable, plaint could not be rejected under O. VII, R.11 of C.P.C.---Constitutional petition was dismissed in circumstances.
• ----S. 91----Specific Relief Act (I of 1877), Ss. 42 & 54---Public nuisance---Permission of Advocate General for filing of suit---Principles---Section 91 of C.P.C. provided that suit for declaration or injunction in respect of public nuisance could be filed by two or more persons with permission of Advocate General---Exception, however, was there, that principle as embodied in S.91(2) of C.P.C., which provided that provision of S.91(1) of C.P.C. would not limit or otherwise affect any right of suit, which might exist independently.
• Iftikhar Javaid Qazi for Petitioners.
• 3. The petitioners being defendant Nos. 1 and 2 contested the said suit by filing their written statement. They also filed an application under Order VII, Rule 11, C.P.C. for rejection of plaint on the ground that the plaint does not disclose any cause of action and the same is also barred under the law having been filed without permission of the Advocate General, Sindh, as required under Section 91, C.P.C. The said application was dismissed by the learned 4th Senior Civil Judge, Karachi (East) after hearing the parties, vide order dated 13-11-2014. Being aggrieved, the petitioners impugned the said order in Civil Revision Application No. 80 of 2014, which was also dismissed by the learned 4th Additional District Judge, Karachi (East) vide order dated 21-5-2015. It is against this order; that the instant Constitutional Petition has been preferred by the petitioners.
• 4. It is contended by the learned counsel for the petitioners that the allegations leveled by the respondents Nos.3 to 8 in Civil Suit No.879 of 2014 are in the nature of public nuisance and the same has been filed by the said respondents without obtaining permission from the Advocate General, Sindh, which they could not do without fulfillment of legal formalities as required under Section 91 of C.P.C., moreover no cause of action has been shown by the respondents Nos.3 to 8 for maintaining the said suit against the petitioners/ defendants, as such, the plaint in the suit is liable to be rejected under Order VII, Rule 11, C.P.C., hence, the orders passed by the learned lower Courts below suffer from material illegality.
• 91. Public nuisance.--(1) In the case of a public nuisance the Advocate-General, or two or more persons having obtained the consent in writing of the Advocate General may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
• 8. Section 91 of the C.P.C. provides that a suit for declaration or injunction in respect of public nuisance can be filed by two or more persons with the permission of the Advocate-General. However, there is an exception to this principle as embodied in subsection (2), which inter alia provides that the provisions of subsection (1) of Section 91, C.P.C., would not limit or otherwise affect any right of suit, which may exist independently. In the instant case the respondents/plaintiffs have claimed that the conversion of a residential unit into commercial unit (car showroom) has disturbed the peace and their privacy and security and they would face the constant disturbance and agony along with their families due to the said illegal conversion. Therefore, in our view, they have independent right to sue on the basis of these averments and no permission of the Advocate-General is required for filing a suit in respect of such rights, as subsection (2) provides an exception to subsection (1) of Section 91, C.P.C.
• 9. Even otherwise, it is an admitted position that the civil suit filed by the respondents Nos.3 to 8 contains multiple prayers and the permission for maintaining a suit against the nuisance from the Advocate General, Sindh under Section 91 of the C.P.C. for the sake of arguments would require under the law only to the extent of prayer clause (a) of the suit and the same is not required for the reliefs claimed by the said respondents in prayer clauses (b) to (d). It is an elementary principle of law that the plaint cannot be rejected in piecemeal, plaint can only be rejected if all the reliefs claimed by the plaintiff are barred under the law. Even if one prayer is maintainable, the plaint cannot be rejected Under Order VII, Rule 11 C.P.C.

Headnotes / Summary

Judgment & Decree