1992 PLP 2000 (MLD)

(b) Nuisance; (c) Infringment of the so‑called right of privacy; (d) Construction of Dhobi Ghat in violation of law; So far as the allegations of nuisance and privacy are concerned no material facts had been pleaded. The suit was decreed by the Trial Judge as he was of the view that:‑‑ ."Use of heavy machines for raising the washing industry,‑according to my observation at the site and in the light of the above‑discussed evidence, does not suit in the residential area. The house of plaintiff being adjacent to the disputed property, shall naturally be subjected to the violation of easementary rights of the plaintiff." It is then observed as under:‑ "Such a heavy industry requires sufficient number of labourers, therefore it is natural that the several labourers working adjacent to the house of plaintiff, no doubt would be chit‑chatting and speaking loudly. In this respect evidence of PW Bilawal and Younis Ali is available on record. Taking into consideration the evidence discussed above and my observations at, the site, I have come to the conclusion that the complaint of the complainant is a genuine one and it stands proved that casement, of privacy of the plaintiff is infringed and function (functioning) of heavy machines, in a residential Mohallah can be the cause of interference in the calm and quiet atmosphere in the area. 1, therefore, hold that the plaintiff is entitled to the relief claimed:' The learned Appellate Judge observed, "on my inspection of disputed site on 29‑1‑1983, the cracks were found visible from inside of compound wall .of courtyard". He has then stated that dry cleaning factory was established in non‑commercial area and "voice and the vibration" of the machines would certainly create nuisance for the plaintiff and his family and the presence of labourers in the premises is also disturbing privacy of plaintiff's house".

8. The analysis of the judgments shows that the Courts below have based the findings in respect of nuisance and infringement of privacy relying upon the following factors: (a) Operation of heavy washing machines can be cause of interference in the calm and quiet atmosphere of the locality. (b) Cracks had developed in the wall of the house of the respondent. (c) Dhobi Ghat is situated in residential area. (d) Easement of privacy of the respondent is infringed by presence of and chit‑chatting of the labourers, etc.

9. Nuisance may be either public or private. The respondent had pleaded private nuisance: Section 91(1), C.P.C. prescribes that 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. Section 91(2), C.P.C. provides that nothing in that section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. The cumulative effect of the above provisions is that private action cannot be maintained in respect of a public nuisance except by a person why suffers special or particular damage beyond what is suffered by him alongwith all other persons affected by the nuisance.

10. Both the Courts below had acted illegally and with material irregularity in granting the relief to the, respondent, for several reasons which arc. proposed to be' considered separately.

11. The allegations in the plaint with regard to nuisance indicate that the appellant intended to plead private nuisance inasmuch as he allegedly apprehended impairment and damage to his property. Even otherwise, the suit having not been instituted in consonance with section 91(1) C.P.C. the Court had no jurisdiction to entertain the suit or grant relief on the ground that the acts committed by the applicant amounted to public nuisance. Therefore, the finding of the Courts below to the effect that the operation of heavy washing) machines caused interference in the calm and quiet atmosphere of the area is to be ignored. The respondent was granted relief on that ground beyond the scope of the suit.

12. It is the basic requirement of law of pleadings as provided in Order VI, Rule 2, C.P.C. that every pleading shall contain material facts on which the party pleading relies for his claim or defence. As to what would constitute material facts reference may be made to Order VI, Rule 3, C.P.C., which provides that the forms in Appendix `A' where applicable, and where they are not applicable, forms of the like character, as nearly as may be, shall be used for all pleadings. In so far as public and private nuisance is concerned. Forms 36 and 37 in the said Appendix specifi4ally provide guidelines as to what material facts should be stated for disclosing cause of action for seeking relief for private and public nuisance respectively. Order VI, Rule 2 of the Code read with the form prescribed for private nuisance, leads to the conclusion that it is not enough to allege that the defendant has erected the slaughter house but must further state that because of such erection of the slaughter house by the defendant on the plot, from that day, till the day the suit was being filed, ‑he continuously brought cattle and killed them there and has caused the blood and offal to be thrown in the street opposite the house of the plaintiff. 1t is m the above context that the Court has to determine whether the respondent has pleaded material facts as required by law for seeking relief on the grounds of private‑ nuisance.

13. In the instant case the defendant was required to state in his plaint all such acts which caused the nuisance and the manner in which it was being caused. Learned counsel for the applicant relied on the case of Naseer Ahmed v. Harz Muhammad Ahmed and 17 others 1984 CLC 340 which lays down that when nuisance is alleged, the plaintiff must show as to how a particular act will endanger life and as to what drainage problem would be, caused. In other words the mere statement that the alleged act would endanger life or cause drainage problem would not be sufficient to qualify to be called material facts as required to be disclosed under Order VI, Rule 2, C.P.C. read with Rule 3t thereof. The respondent, therefore, was required to state the specific act or acts that were the cause of impairment or damage and the manner in which they caused the damage to his property. If water used in or discharged by the Dhobi Ghat was the cause, he had to plead it specifically and he was further required to disclose in what manner, the use or discharge of water had caused the damage. But the plaint is absolutely silent with respect to the above material facts, in derogation to the basic requirement of law of pleadings.

14. No doubt the rules of pleadings arc not mandatory and deviation, from such rules cannot be allowed to defeat the ends of justice. But, however, where the deviation from rules of pleadings have caused prejudice to the other side in any manner or form, no effect could be given to the prejudicial consequences that may follow. The efficacy and importance of the principle of law that the party has to prove the case pleaded by it is pointer to the above. In the case of Ch. Brothers Ltd. Sialkot v. Jaranwala Central Cooperative Bank Ltd. 1968 SCMR 804, it was observed that no evidence should have been allowed to be adduced of the facts, which had not been raised in the pleading or incorporated in the issues framed. Referring to the cases of Hemchand v. Pearev Lai and others AIR 1942 PC 64 and Kanda v. Waghu AIR 1951) PC 58 it was further observed that in such a case no amendment should be allowed of the plaint so as to alter. the basis of the suit. In 'Yousuf v. Hashim Bhoy & Co. and another PLD 1966 Kar. 456 it was observed that the party cannot prove a case different from what he had pleaded. In Nadir Ali and others v. Mohammad Adam Khan 1985 Cr.P.C .373 it was observed by a learned Judge of this Court that the fact not pleaded in the plaint could not be looked into even though any amount of evidence in support of the same was brought on record. In Sk. Abdul Aziz v. Mahmoodul Hasan and 3 others 1988 CLC 337 another learned Judge of this Court held that no evidence can be allowed or looked into in support of the pleas which were not taken in the pleadings. In view of the above‑stated law, the evidence brought on record by the, respondent with regard to damage allegedly caused by the use or discharge of water or vibration caused by the operation of the machines etc. was simply to be ignored, as such a case was not pleaded.

15. The suit was riled by the plaintiff on the allegation that the construction of Dhobi Ghat was likely to impair and damage his house. The plaintiff in his evidence deposed that due to use of plenty of water his house had developed cracks. The trial Court referred to the alleged cracks noted by him at the time of inspection of the house of the respondent and gave finding that such cracks were caused due to flow of water. The Appellate Court attributed the cracks to the vibration caused by the washing machines, and such opinion has been expressed on the basis of observation of the learned Judge at the time of inspection of the premises. The respondent in his evidence alleged that the cracks had developed in the wall because of flow of huge quantity of water. This evidence was fully rebutted by the applicant by stating that the water of the Dhobi Ghat is discharged in drainage system provided by the Municipality: There was only word against the word. The burden of proof was on the respondent. It was therefore incumbent upon the respondent to have established by expert evidence that such cracks were developed because of flow of water or vibration caused by the machines as observed by Appellate Court. This having not been done, the Courts below were not justified to grant the relief. It may however be pointed out that neither the Trial Court has given any reasons in this regard, nor in the concluding part of the judgment, which has been reproduced above, has referred to the alleged damage as reason for granting the decree. In any event the respondent had failed to prove that the damage was caused due to flow of water or vibration.

16. Similarly the allegation that the area in which the parties are residing and the applicant has established Dhobi Ghat, is a residential area, was not pleaded by the applicant and the Courts below committed grave error legally and factually in considering the said factor. In so far as evidence on record is concerned it shows that the area is being used for commercial purposes. Adjacent to the plot of the applicant is a garage where tractors are repaired and there is also a restaurant (termed as hotel) which is being run by P.W. Bilawal, adjacent to the house of the respondent. There is also a cinema house near.. his house. The above was admitted by the respondent and his witnesses. The Courts below were, therefore, not justified in concluding that the washing factory of the applicant was in the residential area. In an v case if plot where the applicant has opened the factory is situated in a residential area or the applicant has converted residential plot into commercial one, it would be for the Municipality to take action. The respondent in the plaint had alleged that the Municipality had granted status quo against the construction of Dhobi Ghat, but no such evidence was brought on record.

17. The Courts below were impressed by the evidence that working of machines was likely to disturb the calmness and peace of the residential locality but such factor would be relevant in the case of public nuisance. The suit, therefore, ought to have been instituted in accordance with section 91(1), C.P.C. The case could have been taken out from the pale of section 91(1), C.P.C., only if some special damage caused to or suffered by him, beyond what is suffered by him, in common with all other persons affected by the nuisance, E had been established by the respondent, which he failed to do and therefore the Courts below were not justified in granting the relief in the suit as tiled by the respondent.

18. Coming to the question of infringement of privacy it may be observed that the easement of privacy is a customary right. It is settled law that the customary right of privacy is to be pleaded as such. The reading of the plaint F shows that the respondent has not pleaded such case. The learned counsel for the applicant relied on the case of Fazle Raziq v. Zaman Shah and others PLD 1980 SC 193 which lays down that customary easement of privacy is to be specifically pleaded to exist and proved as such. It was further held in the above case that before customary rights of privacy of house can be recognized it will he necessary to investigate whether it has the essential attributes of a custom, namely, that it must be immemorial, it must be reasonable, it must have continued without interruption since its immemorial origin, and it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the person whom it is alleged to affect. It is then that the custom acquires the force of law and judicial notice can be taken of it under section 57 of the Evidence Act, now Article 112 of Qanun‑e‑Shahadat Order (1 of 1984). In the above authority referring to case of Mian Halizullah v. Muhammad Hussain 1938 PLR 483, it is observed that there was no right of privacy attached to any property and this was specially so in a town. The trial Court has observed that the existence of the workmen in the Dhobi Ghat, infringed the privacy of the respondent. The family members of the respondent live within the boundary walls of his house and the workmen of the applicant work within the boundaries of his plot. It is not the case of the respondent that the female inmates of the house, because of location of the two plots or structure thereon, are exposed to the workmen of the applicant. It will be, therefore, unreasonable and logically fallacious to say that there is infringement of privacy of the house of the respondent, apart from the fact that no such right is shown to exist. The learned appellate Court also without indicating as to how the right of privacy of the respondent is infringed, passed the sweeping remarks to the effect, "the presence of labourers in the premises is disturbing privacy of the plaintiff's house permanently", which are not warranted. The respondent had neither specifically pleaded the existence of right of privacy as required under the law, nor there was any evidence before them) in this regard. Therefore, factually also one does not rind any breach of the alleged r right. The Courts below were clearly in error in granting relief to the respondent on that basis.

19. The learned counsel for the respondent contended that the Dhobi Ghat has been established without any permission from the Municipality Tando Allahyar. The learned Advocate in this regard has referred to para 13 of Part II of Schedule 11 to the Sindh Local Government Ordinance (XII of 1979). The aforesaid para falls under the head of Optional Functions of Municipalities. It reads as under: "The Corporation, Municipality or Town Committee may provide Dhobi Ghat for the exercise of their calling by washermen, and may by bye‑law regulate the use of Dhobi Ghats and levy fees for their use." On my query from the learned counsel of the respondent, if any bye‑laws had been framed by the Municipality Tando Allahyar, he gave evasive reply and could not refer to any such bye‑laws. In such view of the matter the contention of the learned Advocate for respondent that the Dhobi Ghat has been established by the respondent in violation of law is of no substance. Unless it is shown that the establishment of Dhobi Ghat in the particular Municipal area is prohibited by any statutory rule, the respondent cannot be said to have any right, upon which he could base his relief for injunction. In this regard the learned counsel for the applicant relied upon the case of Muhammad Siddique, etc. v. Ghulam Muhammad 1977 SCMR

505. In view of the above, no exception can be taken to the finding given by the trial Court and the learned appellate Court had erred in reversing the said finding.

20. Lastly it may be observed that the learned trial Court as well as the appellate Court had relied on their observation at the time of inspections of the properties of the parties and the reading of both the judgments shows that by and large they are based on the aforesaid observations. Inspection is not a substitute for evidence. In this regard reference may be made to the case of Muhammad Jumman and another v. Mst. Aqila and 2 others PLD 1980 Kar. 108, wherein Mr. Zafar Hussain Mirza, J. (as he then was) has observed as under: "It is well‑settled that a Court can only decide a matter on the basis of evidence on record and not its views or impression of inspection. Inspection is not substitute for evidence." It was further observed that: "such inspection would be of no value."

21. As noted above, the respondent had prayed for injunction restraining the applicant from raising Dhobi Ghat. The case of the applicant was that the Dhobi Ghat was already constructed by him and it was so found by the trial Court. Consequently the suit ought to have been dismissed. But the trial Court granted decree, at that, a futile decree, not warranted by law. However, the applicant was constrained to file appeal because of the prejudicial observation made against him. The appellate Court granted application under Order VI, Rule 17 whereby the above‑mentioned prayer clause was added to the plaint. In so far as the pleadings in the plaint are concerned no amendment was sought with the result that the pleadings remained pruned of all material facts, required to be pleaded under the law. Thus, amendment did not make any improvement in the case and there was no justification to dismiss the appeal.

22. Clause (g) of section 56 of Specific Relief Act (I of 1877) prohibits grant of the injunction to prevent, on the ground of nuisance, an act of which it is not, reasonably clear that it will be a nuisance. In the present case on the material brought on record, it is not reasonably clear that the alleged acts on the part of the applicant, individually or collectively, had in fact caused nuisance to the respondent.

23. I would have considered the question of allowing amendment in the plaint, but no such request was made by the learned Advocate for the respondent, who appeared to be satisfied with the pleadings on record as they are.

24. The plaint filed by the respondent was not in confirmity with the requirements of the law of pleadings and suffered from various infirmities leading to material irregularities resulting in miscarriage o justice. The judgment and decree of both the Courts cannot be sustained and the same are hereby set aside and reversed. This Civil Revision Application is accordingly allowed with costs. AA./H‑327/K Revision accepted.