1986 PLP 218 (CLC)

(iii) Surendra Kumar v. District Board Nadia A I R 1942 Cal. 360. (iv) Kissondas v. Jivatlal Pratapshi & Co. A I R 1936 Bom. 423. (v) Tattersals Club v. S.M. Suleman P L D 1956 Sind 49. (vi) Abdur Rahman Mobashir v. Amir Ali Shah P L D 1978 Lah. 113. (c) It was argued that the respondents did not come to the Court with clean hands inasmuch as it is stated in the plaint that their plots are residential whereas it is now an admitted position that Sohail Hameed, respondent No. 1, has rented out a portion of his property for commercial purposes, that is, a tenant is using it as office premises; (d) It was submitted that before this matter reached the High Court, there was only an apprehension on the part of the respondents about the running of a marriage‑hall being a source of inconvenience or nuisance to the neighbours but under orders of the High Court and the Supreme Court, as noticed earlier, various functions have been held in the marriage‑hall of the applicants but no grievance has been made in the form of any affidavit or application on behalf of the respondents that holding of such functions in fact caused any inconvenience or was in any way a source of nuisance to the respondents. (e) The running of a marriage‑hall on the plot of the applicants cannot amount to public nuisance. On the question as to where the High Court will interfere under section 115, C.P.C., Mr. Z. U . Ahmed referred to the decision of a Full Bench of the Lahore High Court reported in the case of Gurdevi v. Muhammad Bakhsh A I R 1943 Lah. 65 and argued that the powers under section 115 C.P.C. of the High Court are similar to powers of the High Courts to issue writs of certiorari. It was argued that the lower Courts have exercised descretion arbitrarily and as such interference is called for under section 115, C . P. C . Learned counsel also referred to the following judgments in connection with the powers of the High Court under section 115, C.P.C. to interfere with interlocutary orders: ‑ (i) Feroze Din v. Abdul Hamid P L D 1969 Lah. 89. (ii) Sui Gas Transmission Co. v. Sui Gas Employees Union 1977 SCMR 220. (iii) N.K. Gandhy v. D.P. Edulji s Co. Ltd. P L‑ D 1951 Lah. 262. (iv) Manager Jammu and Kashmir State Property v. Khuda Yar PLD1975 S C

678. In support of the application for amendment (C.M.A. No.140/86) and for considering the documentary material filed alongwith the said application, it was argued by the learned counsel for the applicants that the amendment application can be made even at the appellate stage and subsequent events that is events that have taken place after orders have been passed by the lower Courts can also be taken into consideration by the Revisional Court. Learned counsel cited the following authorities in support of the amendment application: ‑ (i) Zubeda Begum v. Wali Muhammad Khan 1974 S C M R 181. (ii) Keramat Ali v. Muhammad Yunus P L D 1963 S C 191. (iii) Amina Begum v. Ghulam Dastgir P L D 1978 S C 220.

4. Opposing the Revision Application Mr. Umsan Ghani Rashid, learned counsel for the respondent No.3, argued that the frame of the suit cannot be questioned at the revisional stage as it was not challenged before the lower Courts and that this plea of Mr. Z . U . Ahmed has also not been taken in the memo. of Revision Petition nor even in the amendment application. In any case, it was argued that necessary facts have been given in the plaint and it was not necessary under the law to seek a declaration that running of a marriage‑hall by the applicants on their plot is public nuisance. As regards the plea raised on the basis of Order I , rule 8, C. P. C. , it was submitted that the suit filed by the respondents was not a representative suit but the suit was filed by four persons and it is covered by the provisions of section 91, C.P.C. With reference to the contention that the respondents have not come to the Court with clean hands, it was submitted that the main thrust of the plaintiffs' suit was on the running of the marriage‑hall and that in so far as respondent No.l is concerned, it was not necessary to mention in the plaint that part of his house was being used by a tenant for office purposes. It was submitted by Mr. Usman Ghani Rashid that there was neither any arbitrariness nor perversity in the tentative findings of the lower Courts and they exercised discretion vested in them by law and the impugned orders are not liable to interference. According to the learned counsel, on the basis of the pleadings and documents on record, no case of mis‑exercise of discretion has been made out to call for interference under section 115, C.P.C.

5. Mr. Qadir Hussain Sayeed, learned counsel for the respondent No.4, opposed the request of the applicants that additional documents, which were not filed before the lower Courts, may be allowed to be produced and considered at the revisional stage before this Court. It was submitted that in Revision it is questions of law and not questions of fact which are considered and learned counsel relied upon the following judgments: ‑ (a) Muhammad‑ Nazir v. Abdul Latif PLD 1985 SC (AJ$K) 97. (b) Kanwal Nain v. Fateh Khan P L D 1983 S C

53. It was also argued that the averments in paras. 7 to 12 of the plaint made out a case of private nuisance, in addition to public nuisance under section 91, C.P.C.

6. Respondent No.1 Sohail Hameed, who appeared in person referred to the contents of the plaint and the affidavit in support of the temporary injunction application filed on behalf of the respondents before the learned Senior Civil Judge and the counter‑affidavit on behalf of the applicants. According to respondent No.1, the case of the respondents inter alia was that both the roads on which the plot in question is located are busy roads and during the holding of functions in the marriage‑hall cars will be parked creating congestion and these facts have not been denied in the counter‑affidavit filed on behalf of the applicants. It was also submitted that according to the respondents the applicants had constructed the marriage‑hall without any approved plan and this fact has not been denied. Reference was also made to the case on behalf of the applicants to show that according to the applicants themselves about 500 to 700 people were being invited in the functions on the plot which definitely would cause extreme inconvenience to the neighbours which inconvenience would continue till late at night on each day such function is held. According to Mr. Sohail Hameed, the temporary injunction application was decided on the basis of the record available before the lower Courts and no case of mis‑exercise of discretion has been made out nor is there any allegation in the revision application that the impugned orders are arbitrary or fanciful. The amendment application was opposed on the ground that new facts were being pleaded at the revisional stage which could not be done and apparently the applicants were treating the revision application as a first appeal. The respondent No.1 relied upon the following judgments:‑ (1) K.D.A. v. Taj Muhammad P L D 1977 Kar. 101. (2) Fazal Akbar v. Hussain Pari 1982 S C M R 738. (3) Anjuman Jamia Ahli Hadis v. Abdul Qadir P L D 1982 Lah. 232.

7. I would first take up Miscellaneous Application (C.M.A. No.140/86) filed by the applicants. By this application, the applicants sought permission to address various grounds in support of the present Revision Application, which grounds have not been taken in the original memo. of the revision application. In addition, through this application, the applicants want this Court to take into consideration various facts and documents, which were not pleaded or placed before the lower Courts. In so far as the additional legal pleas which do not require consideration of any facts or documents, which were not pleaded/produced/placed before the lower Courts, I find no objection to the grant of the aforesaid application to such extent. In fact, at the time of arguments, I had informed the learned counsel for the applicants that he could raise any of the legal pleas in support of the revision application, although such legal pleas had not been raised before the lower Courts and that such pleas would be considered by me while deciding this revision application. However, I am not inclined to take into consideration such facts or documents, which were not pleaded/placed/produced before the lower Courts. If through oversight any fact was not pleaded or a document was not produced before the trial Court and as such the same was not considered by the trial Court, the High Court in a revision application under section 115, C.P.C. will not normally consider such additional documents and will not normally allow an applicant to raise such factual pleas. However, subsequent to passing of the interim orders by the trial Court under Order XXXIX, Rule 1 or Rule 2, C.P.C., if newt circumstances arise, which require consideration by the Court, the proper course for the aggrieved party is to file an‑application under Order XXXIX, Rule 4, C.P.C. for discharge or variation of the interim order passed earlier by the trial Court. For compelling reasons or in cases where grave injustice may take place, the High Court may, even at the stage of revision, take into consideration additional facts and documents but the present is not an exceptional case and in the circumstances of this case I am not inclined to make an exception in favour of the applicants to allow the applicants to plead new facts and to rely on documents which were not placed before the lower Courts. To the extent that legal pleas are allowed to be raised in support of the revision application, C.M.A. No. 140 of 1986 is allowed but the request of the applicants to allow new pleas of facts or consideration of documents, which were not placed before the lower Courts, is not allowed. C.M.A. No. 140 of 1986 is disposed of accordingly. 8. (a) As regards the submission about the frame of the suit inasmuch as no relief of declaration about public nuisance has been sought in the plaint raised by Mr. Z. U. Ahmad, learned counsel for the applicants, prima facie am of the view that the suit as framed and filed is maintainable. Consent under section 91, C.P.C. has been obtained by the respondents before filing their suit, and facts, which, according to the respondents, amount to public nuisance, have been given in sufficient detail in paragraphs 7 to 11 of the plaint. Then .no such plea had been raised by the applicants before the lower Courts. In the circumstances, the suit filed by the respondents does not appear to be non‑maintainable. Prima facie the suit for permanent injunction filed by the respondents is maintainable. (b) Mr. Z.U. Ahmed, learned counsel for the applicants, is correct in arguing that for a representative suit filed under Order 1. rule 8, C.P.C. permission of the Court is required to maintain such representative suit. However, from a perusal of the plaint it does not appear that the respondents were filing the suit in representative capacity for and on behalf of numerous other persons not made as plaintiffs. Under section 91, C.P.C. a suit for public nuisance can be instituted by two or more persons after having obtained the consent in writing of the Advocate‑General. In the instant case, consent under section 91,w C.P.C. has been obtained by the respondents /plaintiffs. Although the sanction is signed by the Additional Advocate‑General and not by the Advocate‑General, Mr. Z.U. Ahmed had stated that he was not taking up the objection at this stage about the consent not having been signed by the Advocate‑General and as such this point has not been considered by me. It is, however, open to the applicants to take up this plea before the trial Court. Prima facie the suit filed by the four respondents after having obtained the consent under section 91, C.P.C. is maintainable. The judgments cited by the learned counsel for the applicants on the maintainability of the suit under Order I, rule 8, C.P.C. are, therefore, not relevant. (c) As regards the plea raised by the learned counsel for the applicants that the respondents had not come to the Court with clean hands inasmuch as it is stated by the respondents in the plaint that their plots, adjacent to or in the vicinity of the applicants' plot, are residential, whereas it is now an admitted position that respondent No.1 Sohail Hameed has rented out a portion of his property for commercial purposes to a tenant, who is running an office there. The fact that all the plots of the applicants as well as the respondents are residential is admitted. Nothing has been placed on record to show that any of the five plots has been converted into a commercial plot. If a portion of the property of respondent No. 1 Sohail Ahmad has been rented out to a tenant who is running it as an office, the said plot of respondent No. 1 does not stand converted into a commercial plot. In my view, failure to mention the fact that a part of the property of respondent No. 1 had been rented out to a tenant for running an office did not disentitle the respondents to claim interim relief from the trial Court. (d) The next contention of Mr. Z.U. Ahmad was that after functions had been held on the plot of the applicants under specific orders/ permission from the High Court and the Supreme Court, no grievance was made by any of the respondents through any application or affidavit filed in the present revision application that holding of such functions did in fact cause any inconvenience or nuisance to any of the respondents. On this ground, the orders of the lower Courts are not liable to be set aside in this revision application under section 115, C.P.C. The lower Courts have decided the interim application on the basis of the pleadings and documents on record. If subsequent to the passing of such orders certain events have taken place and the applicants feel that such events and consequences resulting from occurrences of such events have a bearing on the grant of interim order in favour of the respondents, the proper course for the applicants was to move the trial Court by an application under Order XXXIX, Rule 4, C.P.C. Non‑filing of affidavits by the respondents in this revision application after several functions had been held in the marriage‑hall of the applicants under orders /permission of the High Court and the Supreme Court does not make out any case for the grant of this revision application. (e) It had been argued that the running of marriage‑hall on the plot of the applicants cannot amount to public nuisance. It was argued by the learned counsel for the applicants that in Civil Procedure Code "public nuisance" is not defined, but according to section 3(44) of the General Clauses Act, "public nuisance" means a public nuisance as defined in Pakistan Penal Code and section 268 of the Pakistan Penal Code defines public nuisance and being penal in nature, definition of public nuisance is to be construed strictly. Reference was also made to the Interpretation of. Statutes by Maxwell‑Tenth Edition (1953) at pages 264 and

265. It was also argued that factually also running of a marriage‑hall by the applicants could not possible be a source of inconvenience or cause public nuisance. It was also argued that marriage is a solemn occasion and in a marriage function there could not possible be any element hostile to decency 'and that relations and friends of parties and their guests normally display their best of manners on such occasions. Reasons which promoted the learned Senior Civil Judge, who passed order of status quo on the interim application moved by the respondents, are given in his order, dated 12‑1‑1985 and the relevant part of the said order has been reproduced urlier in this judgment. On the basis of the pleadings and record, the learned Senior Civil Judge noted the following points:‑ "(i) the plot of the applicants is residential; (ii) the applicants have not stated that they had obtained plan from the Building Control Authority for constructing marriage‑hall or commercial building on their plot; (iii) applicants themselves had stated that they had only applied to the authorities for conversion of the plot from residential to commercial; (iv) marriage‑hall constructed by the applicants is situated in a residential area and not in commercial area; (v) there is no marriage‑hall in that locality; (vi) it was observed by the learned Senior Civil Judge that it is a matter of common sense that marriage‑halls where marriage functions are being held, huge crowd of ladies and gents of every category come there; (vii) there is problem or car parking which is source of nuisance for the inhabitants.", The appellate Court by its order, dated 2‑2‑1985 rejected the Miscellaneous Appeal filed by the applicants and additionally it was observed that functions in the marriage‑hall go till late hours in night and there is always rush of the people in marriage‑hall and it also creates traffic problems as vehicles are parked outside the marriage‑hall and all the respondents are living in the vicinity of the plot in question which is basically a residential area, and in case unauthorized marriage hall is allowed to function, it will cause common injury and annoyance to the public particularly respondents, who are living in the vicinity of the marriage hall. After perusal of the two orders passed by the learned lower Courts it does not appear that the lower Courts have exercised jurisdiction not vested in them by law or have failed to exercise the jurisdiction so vested in them or have exercised their jurisdiction illegally or with material irregularity. The orders also do not appear to be, perverse or arbitrary to call for any interference under section 115, C.P.C. It is not an exceptional case where in spite of there being no mis‑exercise of jurisdiction or discretion by the lower Courts and the impugned orders also not found to be perverse or arbitrary, this Court will interfere under section 115, C.P.C.

9. From a. perusal of the order, dated 12‑1‑1985 of the learned Senior Civil Judge, it is found that he has ordered for maintenance of status quo. The main grievance of the respondents has been against running of the marriage‑hall and holding of functions therein by the applicants. The status quo order is accordingly substituted by an interim order restraining the applicants, till the disposal of `the suit from running the marriage‑hall on their plot bearing No.139.S/2, P.E.C.H. Society, Sir Sayed Road, Karachi. Subject to the aforesaid modification, Revision Application No. 29 of 1985 is dismissed but with no order as to costs. In the circumstances of the case, however, a direction is given to the trial Court that the suit filed by the respondents be disposed of finally by 31‑12‑1986. M. B . A . Order accordingly.