2018 PLP 141 (YLRN)
SHUJAAT ALI — Petitioner Versus SULEMAN and 10 others — Respondents
| Citation | 2018 PLP 141 (YLRN) |
| Forum / Court | Gilgit-Baltistan Chief Court |
| Bench Members | Muhammad Alam, J |
| Parties | SHUJAAT ALI — Petitioner Versus SULEMAN and 10 others — Respondents |
| Primary Law | Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2018 PLP 141 (YLRN)?
This judgment primarily cites: Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2018 PLP 141 (YLRN)?
The case was heard and decided by the Gilgit-Baltistan Chief Court bench comprising: Muhammad Alam, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2018 PLP 141 (YLRN) (SHUJAAT ALI — Petitioner Versus SULEMAN and 10 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Shah Faisal Khan for Petitioner along with Petitioner in person.
- ----S. 91---Suit relating to public nuisance--- Consent of Advocate General---Necessity---Blockage of road---Infringement of civil right---"Public nuisance" and "infringement of public right"--- Distinction--- Contention of defendants was that road in question was open and they never restrained nor were restraining plaintiff from passing through the said path---Suit was decreed by the Trial Court but Appellate Court dismissed the same---Validity---Road in question was eleven to fifteen feet wide and plaintiff had right to pass his vehicle from the same---Appellate Court had termed the action of defendants as "public nuisance" but did not direct the concerned Police Station for chalking First Information Report against them for the offence of public nuisance---Appellate Court had failed to differentiate between filing of suit with regard to public nuisance and against infringement of civil right of any sperson---Courts below had not given any finding on the question whether the action of defendants amounted to a public nuisance, an offence prescribed and defined in penal laws or amounted to infringement of civil right of plaintiff---Action of defendants was an action against the civil rights of plaintiff---Suit against any action of any person "for public nuisance" was different from "action of a person amounting to infringement of civil right of any person"---Any individual could file a suit for a right in his favour with regard to public nuisance without obtaining consent of Advocate General---Provisions of S.91 of Civil Procedure Code, 1908 were discretionary and not mandatory---Action of defendants could not be termed as "public nuisance" rather same amounted to infringement of right of plaintiff---Present suit was maintainable in circumstances---Appellate Court had dismissed the suit as a result of erroneous approach of provisions of S. 91 of Civil Procedure Code, 1908---Findings recorded by the Appellate Court were set aside---Local administration was bound to maintain the suit path as a public thoroughfare---Suit of plaintiff was decreed throughout---Revision was allowed in circumstances. [Paras. 4, 5 & 6 of the judgment]
- Muheet Hussain, Attorney for Respondents along with counsel Abdul Hameed.
- "91. Public nuisances.---(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, through 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.
- Learned first appellate Court has termed the said action of respondents as nuisance and has dismissed the suit, holding that the suit is barred unless requirements of section 91, C.P.C. are not fulfilled. Obviously, petitioner/plaintiff has filed suit in hand without obtaining any prior sanction of the Advocate General. Once it is accepted, as in case in hand, that petitioner/plaintiff has every right to pass through the suit path without any kind of interruption from any person, terming action of the respondents as public nuisance, is very strange. Learned first appellate Court has although termed the action of respondents as public nuisance, but did not direct the concerned Police Station for chalking FIR against respondents for the offence of public nuisance. Pakistan Penal Code provides punishment for the offence of public nuisance in section 268, P.P.C. In my opinion learned first appellate Court has failed to differentiate between filing of a suit in respect of Public Nuisance and filing of a suit against infringement of any civil right of any person. In the case in hand petitioner/plaintiff has filed the suit in hand considering the action of respondents of blocking the suit road against his right, while the learned first appellate Court has termed the similar action as a public nuisance. It is very important to note that respondents do not consider the said action as a public nuisance or any other kind of wrong of civil liability. The above two questions were the real questions for determination for me and for the Courts of first appellate and the trial Court. Learned two Courts below have not given any findings on the question that, whether the action of respondents amounted to a public nuisance, an offence described and defined in penal laws of the country or the same amounted to any infringement of any civil right of petitioner/plaintiff. The action of respondents is almost admittedly an action against the civil rights of the petitioner/plaintiff. So, the suit against any action of any of the person for public nuisance is quite different from any action of a person amounting to infringement of civil right of any person. In case in hand, actions of the respondents, obviously amounted to infringement of right of the petitioner. Moreover, I feel fortified from the findings of the learned Supreme Court of Pakistan reported in PLD 2004 at page 633, whereby, the Hon'ble Supreme Court has held that, an individual can file a suit for a right in his favour in respect of public nuisance, without obtaining consent of Advocate General. It is very important to note that the provisions of section 91, C.P.C. are discretionary and not mandatory and provide for consent in writing of Advocate General for filing a suit against any public nuisance. So, the action of respondents cannot be termed as public nuisance, rather the same amounted to infringement in the rights of the petitioner. Therefore, suit is very competent. Learned first appellate Court has dismissed the suit as a result of erroneous approach regarding the provisions of section 91, C.P.C. and ill appreciation of provisions of the said section.
Headnotes / Summary
S. 91
Suit relating to public nuisance
Blockage of road
Infringement of civil right
"Public nuisance" and "infringement of public right"
Contention of defendants was that road in question was open and they never restrained nor were restraining plaintiff from passing through the said path
Suit was decreed by the Trial Court but Appellate Court dismissed the same
Road in question was eleven to fifteen feet wide and plaintiff had right to pass his vehicle from the same
Appellate Court had termed the action of defendants as "public nuisance" but did not direct the concerned Police Station for chalking First Information Report against them for the offence of public nuisance
Appellate Court had failed to differentiate between filing of suit with regard to public nuisance and against infringement of civil right of any sperson
Courts below had not given any finding on the question whether the action of defendants amounted to a public nuisance, an offence prescribed and defined in penal laws or amounted to infringement of civil right of plaintiff
Action of defendants was an action against the civil rights of plaintiff
Suit against any action of any person "for public nuisance" was different from "action of a person amounting to infringement of civil right of any person"
Any individual could file a suit for a right in his favour with regard to public nuisance without obtaining consent of Advocate General
Provisions of S.91 of Civil Procedure Code, 1908 were discretionary and not mandatory
Action of defendants could not be termed as "public nuisance" rather same amounted to infringement of right of plaintiff
Present suit was maintainable in circumstances
Appellate Court had dismissed the suit as a result of erroneous approach of provisions of S. 91 of Civil Procedure Code, 1908
Findings recorded by the Appellate Court were set aside
Local administration was bound to maintain the suit path as a public thoroughfare
Suit of plaintiff was decreed throughout
Revision was allowed in circumstances. [Paras. 4, 5 & 6 of the judgment] PLD 2004 SC 633 rel.
Judgment & Decree
MUHAMMAD ALAM, J.
Petitioner has challenged judgment/order dated 30/10/2015 of the learned District Judge Hunza Nagar, passed in C.F.A. No. 22/2013.
2. Petitioner/plaintiff filed suit (C. Suit No. 107/2007) in the trial Court, who through his judgment/order dated 16/12/2011 decreed the same. Feeling aggrieved from the same Respondent/ defendant filed C.F.A. 22/2013. Through impugned judgment/order, first appellate Court has set aside the order dated 16/12/2011 passed by the learned Civil Judge Nagar, which goes as under:-- "
12. The upshot of the above is that appeal is accepted and the judgment/decreed dated 16/12/2011 passed by the learned Civil Judge, Nagar in Civil No. 107/2007 is reversed and the suit of the respondent/ plaintiff is dismissed, holding barred by S.91 of the C.P.C. and S.42 of the Specific Relief Act and not proved. Parties are however left to bear their respective costs."
3. I have thoroughly perused the material available on record and have heard learned counsel for parties. The case in hand has its own very peculiar circumstances. Pleadings of parties and statements of parties recorded by the trial Court are very important. For ready reference I reproduce the heading of the plaint hereunder:- Respondents/defendants have contested the suit through their written statement, whereby very clearly averred that suit path is open and respondents have never restrained nor are restraining petitioner/ plaintiff from passing through the suit path. Anyhow, respondents/defendants have further averred that there is no road for plying any vehicle in the garb of suit path.
4. From plain perusal of pleadings of the parties, it is evident that, parties are not at issue regarding suit path, rather the only issue for determination is, whether there is any road in the name of suit path? In this connection, I had to go through the statements of the parties and their witnesses. I found mention of width of foot path in para No. 11 of the impugned judgment. In the said para, learned first appellate Court has referred many parts of the statements of PWs and DWs, which show that width of the suit path varies from 4 feet to 14 feet. Another aspect of the case is that, what the witnesses of the parties have stated about the width of the suit path? PW-2 has stated that the width of suit road may be 14 feet. DW-2 supported this part of the statement of PW-2 and has given the suit path as 11 to 15 feet wide at different places. So, the width of the suit path is established and the same is not less than 11 feet. Obviously, a vehicle of any kind conveniently passes through a road of width of 11 feet. In view of this position, I hold that petitioner/plaintiff has established that the suit path is 11 to 15 feet wide and he has every right to pass his vehicles from the suit path.
5. A very important aspect of the case is that, whether the case is one of section 91, C.P.C.? And whether suit is incompetent? Learned first appellate Court has very elaborately discussed this aspect of the case and has come to the conclusion that the case is of section 91, C.P.C. and suit of plaintiff is incompetent. For ready reference I reproduce section 91, C.P.C. hereunder:- "
91. Public nuisances.
(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, through 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. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions." The questions debated before me are, therefore:- a. Whether the action of respondents amounted to any kind of nuisance defined and described in section 91, C.P.C.? b. And whether suit in hand is competent even if the actions of respondents amounted to public nuisance, defined and described in section 91, C.P.C.? Learned first appellate Court has termed the said action of respondents as nuisance and has dismissed the suit, holding that the suit is barred unless requirements of section 91, C.P.C. are not fulfilled. Obviously, petitioner/plaintiff has filed suit in hand without obtaining any prior sanction of the Advocate General. Once it is accepted, as in case in hand, that petitioner/plaintiff has every right to pass through the suit path without any kind of interruption from any person, terming action of the respondents as public nuisance, is very strange. Learned first appellate Court has although termed the action of respondents as public nuisance, but did not direct the concerned Police Station for chalking FIR against respondents for the offence of public nuisance. Pakistan Penal Code provides punishment for the offence of public nuisance in section 268, P.P.C. In my opinion learned first appellate Court has failed to differentiate between filing of a suit in respect of Public Nuisance and filing of a suit against infringement of any civil right of any person. In the case in hand petitioner/plaintiff has filed the suit in hand considering the action of respondents of blocking the suit road against his right, while the learned first appellate Court has termed the similar action as a public nuisance. It is very important to note that respondents do not consider the said action as a public nuisance or any other kind of wrong of civil liability. The above two questions were the real questions for determination for me and for the Courts of first appellate and the trial Court. Learned two Courts below have not given any findings on the question that, whether the action of respondents amounted to a public nuisance, an offence described and defined in penal laws of the country or the same amounted to any infringement of any civil right of petitioner/plaintiff. The action of respondents is almost admittedly an action against the civil rights of the petitioner/plaintiff. So, the suit against any action of any of the person for public nuisance is quite different from any action of a person amounting to infringement of civil right of any person. In case in hand, actions of the respondents, obviously amounted to infringement of right of the petitioner. Moreover, I feel fortified from the findings of the learned Supreme Court of Pakistan reported in PLD 2004 at page 633, whereby, the Hon'ble Supreme Court has held that, an individual can file a suit for a right in his favour in respect of public nuisance, without obtaining consent of Advocate General. It is very important to note that the provisions of section 91, C.P.C. are discretionary and not mandatory and provide for consent in writing of Advocate General for filing a suit against any public nuisance. So, the action of respondents cannot be termed as public nuisance, rather the same amounted to infringement in the rights of the petitioner. Therefore, suit is very competent. Learned first appellate Court has dismissed the suit as a result of erroneous approach regarding the provisions of section 91, C.P.C. and ill appreciation of provisions of the said section.
6. In the sequel of above discussion, I hold that the findings of first appellate Court are result of ill appreciation of relevant law, therefore merited to be set aside. Suit is competent and parties are not at issue regarding existence of suit path. Local Administration is legally bound to maintain the suit path as a public thoroughfare. Suit of petitioner/plaintiff decreed throughout. Respondents to bear costs. Impugned order of first appellate Court set aside. This file be consigned to record. ZC/182/GB Revision allowed.