2003 PLP 169 (CLC)

On 7‑2‑1996, the private respondents filed a suit against the petitioner. The plaint was headed as "Suit for Perpetual Injunctions read with section 91, C.P.C," In the plaint it was stated that the respondents are residing in their personal houses in Had Bast Fateh Garh, Lahore for many years; that a street runs between all the houses from South to North; that the petitioner is also residing in the vicinity; that the street is a public street and that the petitioner is claiming the street to be his personal property With these averments a prayer was made that a perpetual injunction be granted restraining the petitioner from closing the public street Later the plaint was amended inasmuch as the words "read with section 91, C.P.C." were removed The petitioner in his written statement objected that according to the plaint the street is a public street and as such the suit is not maintainable without the sanction of the Advocate‑General, under section 91, C.P.C. There was a reference to the earlier suits which were dismissed for the same reasons. An application was separately filed for refection of the plaint as the suit was barred by law. The application was resisted. The learned trial Court dismissed the application vide an order dated 28‑2‑1997; A revision filed by the petitioner was dismissed by a learned Additional District Judge, Lahore on 10‑6‑2000.

2. The learned counsel for the petitioner contends that admittedly as per contents of the plaint the street is a, public street 'and there .is no allegation of special damage and as such in the absence of the sanction of the Advocate‑General, under section 91, C.P.C. the suit cannot proceed. The learned counsel for the respondent concedes that the street is a public street and there is no allegation of special damage. He, however, complains that the Advocate‑General has refused to grant permission.

3. I have gone through the record. I find that the learned Additional District Judge, Lahore has proceeded to observe .that it requires evidence to prove as to whether the street is public or private. He has then gone a step further to observe that the plaintiff has claimed right of easement anti necessity. I am afraid the said statements in the impugned judgment are by all means result of deliberate misreading of the record. Even the learned counsel for the respondent is not prepared to support the said observation of the learned Additional District Judge. I have already referred to the plaint in detail: It is stated m the plaint that the street is a public and there is no case of easement either by prescription or of necessity. No special damage has been alleged.

4. In this view of the matter, the impugned orders have been passed by the learned Courts below without lawful authority and are accordingly declared as such. The writ petition is allowed. The result is that the plaint in the suit filed by the respondent shall stand rejected.

5. No order as to costs. Q.M.H./M.A.K./A‑583/L Petition allowed.