1985 PLP 1748 (CLC)

This revision is directed against judgment and decree, dated 23-2-1984 passed by the learned Additional District Judge, Faisalabad.

2. Briefly stated the facts of the case are that the petitioner-plaintiff instituted a suit for a mandatory injunction against the Municipal Corporation, Faisalabad in the Court of Senior Civil Judge, Faisalabad praying that the respondent-defendant be directed to demolish the (hereinafter referred to as filth depot, it having been so mentioned in the impugned judgments of the Courts below) constructed by it at a place contiguous to the property of the petitioner-plaintiff situate in Khasra No. 1840 and more commonly known as Jandwala Karkhana. It was asserted that the petitioner and his sons are owners of the property known as Jandwala Karkhana in which they have an ice factory, oil mills and a ginning factory, that the respondent-defen dant has constructed a filth depot along the eastern wall of the afore mentioned property of the petitioner which filth depot -being on the high way and in a thickly populated area consisting of a girls school, shops and residential houses is a source of nuisance and is also obstructing entrance to the petitioner-plaintiff's property. It was also asserted that the petitioner-plaintiff had earlier also instituted two suits for permanent injunction to restrain the respondent-defendant from making any construction wherein the representative of the respondent-defendant Municipal Corporation had made a statement that it would not make any construction whereupon he had withdrawn the suit but later on the present filth depot has been constructed. The further allegation in the plaint is that the filth depot has been constructed on account of male fides of a Councillor of the Municipal Corporation, Faisalabad against whom the petitioner-plaintiff had contested the election. It has also been alleged in the plaint that the petitioner-plaintiff wanted to construct some shops on his property along the road side but on account of the filth depot no such shops can be constructed by him.

3. The suit was resisted by the respondent-defendant, Municipal Corporation, Faisalabad who inter alia raised preliminary objection to the effect that the suit was not maintainable in the form it was presented. On merits it was pleaded that the filth depot in dispute had been in existence for over 20 years and no new construction had been raised but only repair had been carried out. The respondent-defendant Municipal Corporation, Faisalabad also asserted that the aforementioned (filth depot) had been made for keeping the localities around it clean.

4. On the divergent pleadings of the parties the learned trial Court framed the following issues: (1) Whether the suit is not maintainable in the present form? O.P.D. (2) Whether the plaintiff lacks cause of action? O.P.D. (3) What is the effect of lack of notice under section 173 of the Punjab Local Government Ordinance, 1979? O.P.D. (4) Whether the defendant is liable to remove filth depot in dispute and is also liable to be restrained from constructing filth depot near the vicinity of property of the plaintiff? O.P.P. (5) Relief.

5. The learned trial Court by its judgment, dated 31-10-1983 decreed the suit of the petitioner-plaintiff and directed the respondent-defendant to remove the filth depot in dispute within 30 days from the date of judgment and also restrained it from constructing new filth depot near the property of the petitioner-plaintiff.

6. Feeling aggrieved the respondent-defendant Municipal Corporation Faisalabad went up in appeal to the learned Additional District Judge, Faisalabad against the judgment and decree of the trial Court, dated 31-10-1983 who by his judgment, dated 23-2-1984 accepted the appeal, set aside the impugned judgment and decree of the trial Court and dismissed the suit of the petitioner-plaintiff with costs throughout.

7. Dissatisfied with the judgment and decree of the lower Appellate Court the petitioner-plaintiff has come upto this Court in the present revision petition.

8. The learned counsel for the petitioner raised the following contentions: (i) that the learned lower Appellate Court was not justified in holding that the suit of the petitioner-plaintiff was not maintainable in view of section 56(d) of the Specific Relief Act read with section 54 of the Punjab Local Government Ordinance (VI of 1979). Elaborating his contention the learned counsel submitted that the act of construction of a filth depot 40 ft. long, 20 ft. wide and 8 ft. high does not fall within the purview of section 54(3) of the Punjab Local Government Ordinance (VI of 1979) and as such it cannot be said that the suit of the petitioner-plaintiff is hit by the provisions of section 56(d) of the Specific Relief Act. Continuing his arguments the learned counsel submitted that dustbins and receptacles mentioned in section 54(3) of the Punjab Local Government Ordinance (VI of 1979) would not include a filth depot of such big dimensions. In support of his contention that the suit did not fall within the ambit of section 56(d) of the Specific Relief Act, 1877 the learned counsel referred to Malik Khizar Hayat Tiwana v. Punjab Province P L D 1955 Lah. 88; Municipal Board Lucknow v. Mst. Ram Devi A I R 1941 Oudh 52; and Jalaluddin and others v. Ch. Abdul Qayyum and others 1977 S C M R 245; (ii) that the judgment of the lower Appellate Court stands vitiated on account of ignoring the effect of documentary evidence consisting of Exh. P.1 and Exh. P.2; and (iii) that the evidence led by the petitioner-plaintiff abundantly proved the causing of nuisance by the filth depot and therefore the suit should have been decreed.

9. The learned Additional Advocate-General appearing on behalf of the respondent-defendant argued: (a) that the basis of the contentions of the learned counsel for the petitioner is that a filth depot has been constructed which does not fall within the purview of section 54(3) of the Punjab Local Government Ordinance (VI of 1979) and as such the suit was not hit by the provisions of section 56(d) of the Ordinance. He urged that this basis is only imaginary, firstly because at no place it has been established that a filth depot of the size as is canvassed by the petitioner today has been constructed in that the dimensions given today have neither been mentioned in the pleadings viz. the plaint of the petitioner-plaintiff nor disclosed in the evidence, and secondly because it has not been shown how the so-called "filth depot" which in fact has all along been mentioned by the petitioner-plaintiff as is different from a "dustbin" or a "receptacle" as admittedly envisaged by section 54(3) of the aforementioned Ordinance; (b) that the authorities cited by the learned counsel for the petitioner have no relevance to the facts of the case in hand as the same proceed on absolutely different facts; (c) that in effect the grievance of the petitioner is that he is unable to construct shops which grievance has been rightly held to be no basis for issue of a mandatory injunction to remove a dustbin/ receptacle which had been set up for the last over 20 years and had been in existence even before the petitioner had purchased his property; (d) that the receptacle had been made long before i.e. about two decades ago as an obligation and duty of the respondent-Municipal Corporation to keep the locality clean; and (e) that the lower Appellate Court had duly taken notice of all the evidence on record and that Exh. P.1 and Exh. P.2 in no manner advance the case of the petitioner rather these documents show that the suit previously instituted by the petitioner-plaintiff had nothing to do with the alleged filth depot but related to some construction of Khokhas and shops which according to the petitioner-plaintiff the respondent-defendant Municipal Corporation wanted to construct when the petitioner instituted the earlier suit for permanent injunction.

10. The obligation of the respondent Municipal Corporation to make adequate arrangements for removal, collection and disposal of refuse and for the purpose cause public dustbins or other suitable receptacles to be provided at suitable places and in proper and convenient situations in streets or other public places and to ensure that all refuse is removed and collected by the staff of an urban council viz. the staff of the respondent Municipal Corporation so as to be deposited in the public dustbins or other suitable receptacles provided for the purpose has neither been nor could possibly be disputed by the petitioner. What in essence has been urged by the petitioner-plaintiff is that though. the respondent Municipal Corporation under its obligation has to construct public dustbins and suitable receptacles for the purpose it does not mean that it can construct filth depots of the magnitude as has been alleged to have been constructed by the respondent Municipal Corporation, Faisalabad.

11. The learned counsel for the petitioner plaintiffhas today submitted that a filth depot 40 ft. long 20 ft. wide and 8 ft. deep has been constructed by the respondent Municipal Corporation which it could not construct as what is required of it to be done by section 54(3) of the Punjab Local Government Ordinance (VI of 1979) is to provide dustbins or suitable receptacles which would not mean a filth depot of the magnitude as has been built by it.

12. I am afraid this is setting up a new case at the revisional stage inasmuch as there is nothing on record to show that a filth depot with the above dimensions has been constructed by the respondent Municipal Corporation. The petitioner-plaintiff has nowhere in his plaint given any dimensions of the filth depot nor do all these dimensions find mention in the evidence produced by him. P.W. 1 has given no dimensions at all of the alleged filth depot. He has only referred to it as a P.W.2 the petitioner-plaintiff himself also stated about the construction of a and has sufficed by giving the length of one wall of it to be 40 ft. Now it was for the petitioner-plaintiff to prove as the onus of the vital issue viz. issue No. 4 lay upon him that the filth depot being constructed is something other than what is the obligation of the respondent Municipal Corporation to provide for by virtue of section 54(3) of the Punjab Local Government Ordinance (VI of 1979) but he has miserably failed to do so. The evidence on the issue as brought on record by the petitioner-plaintiff and the respondent Municipal Corporation has been properly read by the lower Appellate Court in its total perspective and I see no reason to differ with appreciation of the evidence which otherwise also cannot be agitated against in the revisional jurisdiction of this Court.

13. Apart altogether from the above position it may also be observed that the petitioner-plaintiff has not put forth any distinction between a filth depot and a public dustbin or a suitable receptacle intended to be used for the storage of the refuse of the locality. What has been urged is only that a filth depot is something of a bigger magnitude than a dustbin or a receptacle for storing the refuse. This has not been in any manner supported by referring to the meanings that may have been ascribed to these places in any dictionary or interpreted through any precedent case law.

14. Section 54(3) of the Punjab Local Government Ordinance, 1979 reads as follows:- "

54. Removal, collection and disposal of refuse. (1)

(2)

(3) An urban local council shall cause public dustbins or other suitable receptacles to be provided at suitable places and in proper and convenient situations in streets or other public places and where such dustbins or receptacles are provided, the urban local council may, by public notice, require that all refuse accumulating in any premises or land shall be deposited by the owner or occupier of such premises or land in such dustbins or receptacles."

15. In order to resolve the controversy as to whether the alleged filth depot could be included in the terms "public dustbin" or other suitable "receptacle" used in section 54(3) reproduced above the words that would fall for interpretation are "filth", "depot", "dustbin" and "receptacle". I find that the word "filth" in the ordinary dictionary meaning is used for "foul matter or anything that defiles". The word "depot" has been defined in the dictionaries as place of deposit, a store-house, and a "dustbin" as a receptacle for rubbish, whilst "receptacle" means that which is used or which serves for receiving something or a receptacle for refuse. Now foul matter or rubbish or anything that defiles are obviously synonymous words intended to be used for the same purpose. ;Dustbin" is described as a receptacle which would obviously mean a place of deposit. Thus a dustbin or a depot or a receptacle are also synonymous words which can be inter-changed. The phrase "public dustbin" used in section 54(3) ibid, therefore necessarily implies and is intended to convey the providing of a bigger place of deposit of rubbish etc. to be used by public at large and by the sanitation staff.

16. It may also be pertinently observed that nowhere in the plaint itself or in the evidence of the petitioner-plaintiff the word "filth depot" has been used or uttered. The word used is the translation of which can also be a public dustbin or a receptacle for rubbish/foul matter/refuse.

17. Now there being no dispute that under section 54(3) of the Punjab Local Government Ordinance (VI of 1979) a Local Council which the respondent Municipal Corporation admittedly is obliged by law to provide for a public dustbin or any other suitable receptacle, the providing of such a place becomes a statutory and public duty of the respondent. Section 56(d) of the Punjab Local Government Ordinance clearly provides that an injunction cannot be granted to interfere with the public duties of any functionary. That being so the conclusion arrived at by the lower Appellate Court that the suit of the petitioner-plaintiff being for an injunction which is likely to cause interference in the public duties of the respondent Municipal Corporation was not maintainable and that the finding thereon by the trial Court was not sustainable in the attendant circumstances of the case appears to be one which is not open to exception on any valid ground.

18. I also find that the learned lower Appellate Court while deciding issues Nos. 2 and 4 had analytically examined the evidence on record and while differing with the findings of the trial Court had recorded well-reasoned findings to hold that the trial Court had misread the available evidence. This discussion as detailed in pars 8 onward of the judgment of the learned lower Appellate Court adequately shows the full application of mind by the said Court to the evidence on record.

19. In so far as the alleged ignoring of Exh. P.1 and Exh. P.2 is concerned, I suffice by observing that it may well be that these documents have not specifically been referred to in the judgment of the lower Appellate Court, but, as already observed by me, the evidence on record appears to have been gone through and examined in its total perspective. It is well-settled principle that it is not necessary for an Appellate Court to refer to each and every piece of evidence while recording its findings. The basic and all important requirement is that no material evidence is left out of consideration. In the case in hand no such defect has been pointed out.

20. Otherwise also Exh. P.1 and Exh. P.2 in no manner advance the case of the petitioner-plaintiff. Contrarily these two documents damage the case of the petitioner and also show that the petitioner had not come to the Court with clean hands to seek the relief as prayed for in the suit. Exh. P.1 is the first page of the plaint of the earlier suit of the petitioner-plaintiff and Exh. P.2 is the copy of the statement of the respondent's representative made in that suit and the order of the Court, dated 20-2-1982.

21. Firstly it may be pointed out that it is not clear as to why the petitioner-plaintiff chose to place only the first page of the plaint of his earlier suit and nothing in this regard has been explained today either by the learned counsel for the petitioner. Now para 4 of Exh. P.1 shows that what was alleged in the earlier plaint was that the respondent Municipal Corporation instead of giving permission to the petitioner-plaintiff for construction of shops on his property has shown its own intention to construct in front of the property of the petitioner-plaintiff its own shops and Khokhas by which construction the ingress and egress to the shops of the petitioner-plaintiff would be made impossible. The heading of this plaint also shows that what was intended to be restrained through that suit was the construction of any shops or Khokhajat in front of the property of the petitioner.

22. Similarly Exh. P.2 shows that the representative of the respondent Municipal Corporation made a statement only to the effect that the respondent had no intention to construct any Khokha or shop as was alleged by the petitioner-plaintiff. The order of the Court on Exh. P.2 below this statement is not the order of disposal of that suit but after referring to the statement of the respondent's representative that it did not want to raise any construction on the spot or to instal any Khokha the case was adjourned to come up for written statement on the adjourned date.

23. The contention of the learned counsel for the petitioner which he attempted to raise today was that the respondent Municipal Corporation after having given out that it did not want to construct a filth depot on the spot in dispute through the statement of its representative made in the earlier suit had resiled from its word and constructed the filth depot which is the subject of dispute in the present proceedings. It would be found from the above facts that in the earlier suit no dispute was raised by the petitioner-plaintiff about the construction of any filth depot/ and the dispute related to only construction of some shops/ Khokhas or construction of a similar nature. The new aspect appears to have been introduced by the petitioner to give support to his stand as taken in the plaint of the present suit that the filth depot was a recent construction and to controvert the contention of the respondent Municipal Corporation that the had been in existence for the last over 20 years and in fact existed before the petitioner purchased the property in front of which this is situate.

24. The above discussion would also show that by the production of Exh. P.1 and Exh. P.2 the petitioner-plaintiff has in no manner been able to achieve its above object. The two documents in no manner connect the II, in dispute with the earlier construction which was made the subject of dispute by the petitioner-plaintiff in the previous suit.

25. It may additionally be observed that in view of the unrebutted testimony of D.W. 1 Mian Nazar Sharif Sanitary Inspector, Municipal Corporation, Faisalabad that the ayrin dispute, has been in existence for the last over 20 years, that this has not been shifted from Ganga Sahai Factory where another exists independently and that it has been in existence for over two decades in addition to the Ganga Sahai Factory no room is left to say that it has been recently constructed as alleged by the petitioner-plaintiff. On the contrary a reasonably acceptable inference can be drawn from these factors that only repairs to an existing may have been undertaken.

26. The introduction of documents Exh. P.1 and Exh. P.2, to me appears to show that the petitioner-plaintiff had tried to make use of these documents with colourable intentions to confuse the earlier alleged intention of construction of shops/Khokhas with repair of existing. This is yet another factor which ought to deprive the petitioner-plaintiff from getting a discretionary relief of injunction from the Court.

27. Before parting, I may also observe that it has been very rightly pointed out by the learned counsel for the respondent that the authorities cited on behalf of the petitioner-plaintiff to show that the suit was maintainable in its present form have no relevance to the facts of the present case as those in effect only lay down that an injunction cannot be refused where a public functionary commits a tortuous act in the performance of his functions under a statute. The citation from the Indian jurisdiction only enunciates what public nuisance is. It is thus obvious that the cited cases are of no help to the petitioner to obtain a different finding on issue No. 1 from the one arrived at by the lower Appellate Court.

28. Needless to add that except for a vague reference in the plaint about mala fides of the respondent on account of political differences the petitioner has neither been able to establish any mala fides as i required by law to be done with exactitude and definiteness nor has he proved any tortuous act of any functionary of the respondent.

29. In view of the foregoing discussion I find no merit in this revision which is accordingly dismissed with costs. A.A. Revision dismissed.