P I (PLP)

MUHAMMAD HALEEM, J: This appeal by special leave arises out of the judgment of the Peshawar High Court, Peshawar, dated 3rd of March, 1975, by which R. S. A. No. 381 of 1975 was dismissed. The appellant owned a 2J storeyed house, bearing No. 1526/1528, situate in Mohallah Mir Jamal Shah, Peshawar City. Its doors and "uroosis" opened towards the street to admit light and air. It was constructed about 50 years back. As the building was old, the appellant applied on 16th of February 1959, to the Municipal Committee, Peshawar, for permission to raise a new construction on the site after demolishing the existing one and also submitted a plan for approval. By order dated 11th of March, 1959 the requisite sanction was granted and the plan was approved. The appellant, thereafter, demolished the old construction and raised a new building on the site with its windows opening towards the street. After the building reached its completion, some persons of the locality approached the District Magistrate and requested that .the sanction accorded by the Municipal Committee should be withdrawn as the windows opening towards the street infringed the privacy of their house which request was acceded to by the Deputy Commissioner by his order dated 10th of October, 1959. The appellant failed to close the windows or to install Jaffaris in the windows to obstruct the view and hence he was prosecuted under section 188, P. P. C. for violating the order but was discharged on 19th of January, 1961. In the meantime he also filed an appeal to the Commissioner, Peshawar Division, which was dismissed. Thereafter, he instituted Suit No. 24/1 of 1961 in the Court of the Senior Civil Judge, Peshawar, to challenge the withdrawal of the permission granted by the Municipal Committee. During the pendency of the suit the first respondent herein applied to be joined as a party in the suit but later withdrew the prayer by application dated 13th December, 1962. In this application he merely stated that he would like to assist the counsel for the Municipal Committee. By order dated 14th of December 1962, the trial Court rejected the application. The suit was ultimately decreed on 27th of July, 1963. The Municipal Committee appealed against it but its appeal was dismissed by the District Judge, Peshawar, on 4th of January, 1964. The litigation ended finally qua the Municipal Committee as no further appeal was taken to the High. Court. However, it was the case of the appellant that at the investigation of the first respondent the other respondents filed a suit through him as their attorney on 5th of February, 1964, and sought for a declaration to the effect that the appellant had no legal right to open his windows facing their houses. It was further ,prayed that a perpetual injunction be issued for the closing of these windows. In this suit the first respondent did not join as one of the plaintiffs. Further the Municipal Committee and the Provincial Government were arrayed as defendants but they did not contest proceedings which proceeded ex parse against them. In paragraph 2 of the plaint, it was alleged that the respondent's houses were single storeyed and the roofs were used by their women folk both in summer and winter seasons either for sleeping or sun bathing which privacy was infringed by the opening of the windows facing the roofs. In paragraph 3 it was asserted that this easement was acquired by prescription. The appellant resisted the suit, inter alia, on the grounds: firstly, that the privacy of the houses was not infringed secondly, that they had no legal right to claim for the closure of the windows and the ventilators of his house and thirdly, that they were estopped by their conduct from instituting the present suit. As many as 10 issues were framed to cover the disputed questions of fact and law between the parties. The trial Court further appointed late Shah Zaman Babar, an Advocate, who was later elevated as Judge of the erstwhile High Court of West Pakistan, as Commissioner for site inspection who submitted his report on 18th of June 1967, which, to a large extent, did not support the case of the respondents; and as for the infringement of the privacy of the house of the first respondent, who was not a party in the suit, it was stated that if the windows were opened it was then that some portion of his house was visible, if one saw through the windows. The first respondent, thereupon, on 1st of July 1967, applied to be joined as a party in the suit which prayer was resisted but the trial Court allowed his request by order dated 2nd of October 1967, subject to payment of costs which was accepted by .the appellant and the amount was deposited in Court. His name was added without any further amendment in the body of the plaint. By order dated 4th of May 1968, the report of the Commissioner was thrown over board and he was again directed to submit another report which he did on 9th of June, 1968, which in terms, was contradictory in many respects. The appellant submitted his objections against this report on 19th of June 1968, which were not separately disposed, of on merits. However, the trial Court, while decreeing the suit in favour of the respondents, accepted the report; as for the objections it was held that the appellant had tailed to substantiate them by evidence. The trial Court further held that as it was customary in this part of the country that no owner of a house could open a new window" so as to invade the privacy of his neighbour, therefore, under section 18 of the Easements Act, 1882. such an easement had acquired the force of law. Accordingly, the suit was decreed by judgment dated 12th of November, 1968, In first appeal it was contended that there was a 14 feet side street in between the houses of the parties therefore, they could not be regarded as neighbours. It was further submitted that the respondents had not established any custom or usage in regard to the right of privacy which could as such be infringed. On the other hand it was contended on behalf of the respondents that "Pardah" is customary in this part of the country which does not require to be proved and the Court can take judicial notice of it. Reliance in this behalf was placed on section 18 of the Easements- Act. The first Appellate Court accepted the contention of the respondents and held that the windows of the house of the appellant "definitely invaded the privacy of the houses of the respondents as was evident from the report of the Commissioner dated 9th of June 1968". Accordingly, the appeal was dismissed by judgment dated 19th of October 1969. The High Court, while dismissing the second appeal, held as under : . , . . The question of the defendant-appellant acquiring a right of easement for the windows and ventilators in the third and fourth storeys of his house does not at all arise as the third and fourth storeys did not exist for any length of time before the institution of this suit and it is common knowledge that every body in this part of Pakistan has the right to the privacy of his house which can be called a sort of customary easement. No body can open windows and ventilators in his house over-looking the house of another to violate his privacy. There is nothing on the file and it could not be substantiated at all that the windows and ventilators in question did not violate the privacy of the houses of the plaintiffs respondents. Under these circumstances the learned lower Courts were perfectly justified in relying on the report of the Commissioner." Leave to appeal was granted to consider the question as to whether the right of privacy could be assumed to exist in the city of Peshawar and judicial notice of it could be taken thereof in the absence of any plea to this effect in the plaint and the failure to prove it by evidence. Now, if the plaint is looked at, all that the respondents have alleged therein is that the privacy of the roofs of their houses is infringed which right is acquired by prescription. Therefore, to substantiate it, was for the respondents to establish it within the meaning of section 15 of the Easements Act; but they did not do so and the trial Court failed to notice it and instead decreed that suit on a different ground, that is the customary easement. The Appellate Courts also did not apply their minds to this aspect of the case. The grievance of the learned counsel for the appellant was that the suit should have been decreed on a ground which was not pleaded. I may here refer to the observation of Mookerjee, J., in Gopal Krishna Sil v. Abdul Samad Chaudhari and others (1921 34 Cal L J 319): " . . . When a plaintiff sets up a prescriptive right, he cannot in fairness to the defendant, be allowed to succeed on the basis of -a customary right. The two are fundamentally distinct, for as has been well said, custom differs from prescription in the fact that prescription is the making of a right while custom is the making of a law." Undoubtedly, on this short ground alone, the appeal is liable to be accepted. But while conceding that customary casement was not specifically pleaded, the learned counsel for the respondents contended that the allegation in the plaint did point to the effect that such a right of privacy was recognized as a custom and in support of his plea, he relied on illustration (b) to section 18 of the Easements Act, 1882. The respondents however, led no evidence at the trial to establish it by citing instances in which the alleged custom had been acted upon. Therefore, the learned .counsel for the appellant vehemently urged that the customary easement should not only be specifically pleaded but also proved; and no decree should be granted on a. mere assumption of the existence of a customary easement. In this connection reference may again be made to the observations of Mookerjee, 1., in Gopal Krishna Sil's case, cited above :- " . . But it is indispensable that when a customary right is claimed, it should be specifically pleaded; all the essential requisites to its validity and binding effect must be averred and the customs so pleaded must when put in issue be proved as laid." In Gokal Prasad v. Radho (1 L R 10 All, 358) a Full Bench of Allahabad High Court, while recognizing the existence of customary easement of privacy in the province prior to the Promulgation of the Easements Act, 1882, observed "Each case in which such a right is in dispute must he decided upon its own facts, the primary question in all cases being, whether the privacy in fact and substantially exists, and has been and in fact enjoyed." Similar are the observations in a subsequent case of the same High Court, reported as Bhagwan Das and others v. Zamurrad Hussain and another (1). However, a doubt was expressed in it as to whether the decision in Gokal Prasad's case had a binding effect after the lapse of half a century when it was manifest that the force of the custom of pardah might have largely varied in the course of such a long period. Further, in regard to illustration (b) to section 18 of the Easements Act, it was held that it referred to the existence of a custom in a particular town which necessarily had to be proved. In Baqridi and others v. Rahim Bux (2) the decision proceeded upon the well established customary right of privacy in the Province of Oudh, and therefore, judicial notice of it was taken under section 57 of the Evidence Act. But this cannot be so if the right itself is not established for as held by O Sulliven, J., in Pir Agha Muhammad Hussain Jan and others v. Elies Haji Wahiddino (3) the invasion of privacy by opening a window which overlooks another man's grounds, is not recognized by law as a wrongful act, except in those rare cases in which a custom as to right of privacy is provable. In the case of Mian Hafizullah v. Muhammad Hussain (4) it was held that there was no right of privacy attached to any property and this was specially so in a town. Such a right must be acquired either by usage or by grant. In Nihal Chand v. Fazsol Din (5) it was held that when a right of privacy was claimed, the plaintiff should establish that the custom of domestic privacy was observed among that section of society of which he was a member, and that the domestic privacy of individual is generally regarded among the commpnity of the locality where the plaintiff resides as being of so much importance that by common consent it is considered incumbent upon owners of land and houses either to abstain from elevating their houses or to elevate them with precaution against the violation of such privacy. It would appear from the cases of Mian Hafizullah and Nihal Chand that this customary easement was not held to exist in the Province of Punjab but it had to be established. No case was cited by the counsel for the respondents to show its existence in the N: W. F. P. Further, before such custom can be recognized it will be 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 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. It was thus that Sulaiman, C. J., in B. Nihal Chand and another v. Mst. Bhagwan Dei (6) took judicial notice of the particular custom as it was of general prevalence and commonly recognized. A mere opinion as to the existence of a custom by the Court as being in existence and taking judicial notice of it is far from fulfilling the essential requirements of taking judicial notice of (1) A I R 1929 All. 676 ?????????????????????? (2) A I R 1926 Oudh 352 (3) A I R 1948 Sind 36? ????????????????????? (4) 1938 P L R 483 (5) 1901 P L R 671????????????????????????????? (6) A I R 1935 Alh 1002, a notorious fact, namely, the customary easement. Therefore, the Courts/ below were clearly-in error in holding the right of privacy to exist when it/ was not specifically pleaded nor evidence was led to establish it. The learned counsel for the appellant also vehemently objected to the admissibility of the report of the Commissioner dated 9th of June, 1968; the non-disposal of the objections, against it; and the order of the trial Court impleading the first respondent as a party in the suit at a belated stage in the context of his conduct withdrawing the application for being joined as a party in the earlier Suit No. 24/1 of 1961, which was decreed against the Municipal Committee. But as the appeal is being allowed on the fundamental ground as to the failure on the part of the respondents to plead and prove the customary easement, it will not be necessary to examine, these submissions. For the foregoing reasons, I would set aside' the orders of the Courts below and dismiss the suit. Accordingly, the appeal succeeds and is allowed with costs. s. A. x.? Appeal allowed.