' CH. MUHAMMAD YOUNIS, J.---Briefly stated the facts relevant for the disposal of the instant revision petition are that the respondent No,1 filed a suit for declaration, permanent and mandatory injunction and for cancellation of the petitioner's lease deed by pro forma respondent No,3 in respect of property No,178 Firdousi Road, Rawalpindi Cantt. It was alleged by the respondent No,1 that he was resident of Firdousi Road, which was a residential area, whereas respondent No,3 leased out her property as mentioned above to the petitioner to run a branch of Silver Oaks School in the said property which is bound to result in causing nuisance for the residents of locality due to the activities of students, increased traffic, pollution and disturbance of peace and tranquility and enjoyment of their property. The residential area could not be converted into commercial one so no school could be established in the said property. No NOC was obtained by the petitioner from the concerned quarters. There is no parking place available in front and sides of the school. Along with the suit an application under Order XXXIX Rules 1 and 2, C.P.C. For grant of temporary injunction was also filed by the respondent No,
1. The petitioner and respondent No,3 resisted the suit as well as the petition. Allegedly the NOC had been obtained by the petitioner. The campus was limited to senior students of 8th and 10th classes only. The number of students was also limited so there was no question of nuisance. The learned Civil Judge dismissed the application for temporary injunction vide order dated 30-7-2007.
Feeling aggrieved of the said order, the respondent No,1 preferred an appeal which was accepted by the learned Addl: District Judge vide judgment dated 12-7-2008 and the petitioner was restrained from advertising the admission in the school, accepting the admission form and running the school in the disputed premises till the final disposal of the suit.
2. Feeling aggrieved of the impugned judgment dated 12-7-2008 the instant revision petition has been filed on the grounds that comparative merit and reasoning needs to be re-examined in view of the judgment cited as PLD 1969 SC 617. The learned Addl: District Judge failed to take into consideration the distinguishable features of the present case qua the case-law relied upon by him.
3. The learned counsel for the petitioner contends that the learned appellate court has committed material irregularity in accepting the appeal. The entire Cantonment Area is administered by Military Estate Officer and the Cantonment Board. A uniform policy was framed for the establishment of educational institutions in Rawalpindi/Chaklala Cantonments for issuance of NOC. The petitioner also sought permission and had obtained NOC which was issued on 17-6-2007.
The learned counsel goes on to submit that in the newly established localities the balance has to be struck in private comfort and the public necessity. It has also to consider the resources of the concerned Government to establish educational institutions for the welfare of the society. The population has increased and there is need to establish new educational institutions. When the Government is unable to provide the standard educational institutions the private schools have to be supported. The learned counsel for the petitioner maintained that the school in question is imparting quality education and the court has failed to strike balance between the individual comfort and the welfare of the students community so the order dated 12-7-2008 is sought to be set aside. In support of his arguments the learned counsel referred to AIR 1968 Punjab and Haryana 399 (V 55 C 89), AIR 1973 Rajasthan 212 (V 60 C 49), AIR 1937 Sind 8, AIR 1978 Gujarat 13, AIR 1941 Nagpur 364, 2003 CLC 627 (Karachi), 2003 CLC 632 (Karachi), 1999 CLC 66, 1992 CLC 2540 (Karachi), PLD 1993 Karachi 631 and PLD 1993 Karachi 642.
4. On the other hand, learned counsel for the respondent No,1 contends that Firdousi Road was a single road. It was purely residential area. The lease was never got converted into commercial one and the establishment of school in the said building was a source of nuisance for the residents of locality including the respondent No,
1. The NOC, if any, had expired. The school became operative in 2007. The respondent No,1 or other residents cannot abandone their houses due to the illegal act of the petitioner. The petitioner is running the school on commercial basis extorting heavy fees from the students. The petitioner has absolutely no legal right to disturb the peace and tranquility of the respondent No,1 and the other residents of the area.
5. I have considered the arguments advanced from both the sides and perused the impugned judgments.
6. The learned Addl: District Judge through a well reasoned judgment accepted the application of the respondent No,1 for grant of temporary injunction in the light of case-law referred to in the judgment. There is nothing on the record to suggest that the pro forma respondent No,3 surrendered the lease granted to her for residential purpose or that she ever got the lease converted into commercial one for using the same for commercial purposes. Mainly, the leaned Addl: District Judge relied on PLD 1993 Karachi 631, 1992 CLC 2540 (Karachi) and 1996 Law Notes (sic.) Lahore. In the case titled "Ardeshi Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others" cited as PLD 1993 Karachi 631, it was observed as under:-- "----O.XXXIX, Rr. 1 & 2-i-Temporary injunction restraining defendants, pending hearing, from advertising, accepting form and opening a school in a specific residential area---Plaintiff's allegations spelled out that if school was established on premises which was in residential area, a great deal of noise resulting from activities of school and children as also from increased traffic, would ensue along with pollution by diesel and petrol fumes---Running of school in residential area would also be in violation of restrictive covenant to which property in question was subject whereby same was to be used for residential purpose alone----Sufficient material was brought on the record in support of allegations of apprehended nuisance--Case set up by the plaintiffs to the effect that they having their houses in close proximity to the proposed school, enjoyment of their own respective houses would be affected directly and substantially causing them private nuisance----plaintiffs had, thus, established prima facie that establishment of school in the area in question, would create the kind of nuisance apprehended by them---Plaintiffs were, therefore, entitled to have temporary injunction issued to prevent defendants from establishing or running the proposed school".
' In PLD 1996 Lahore 442, "Lahore Grammar School (Pvt.) Ltd. And another v. Mst. Hameeda Begum and another" it was observed that:- "Opening and establishing of school in residential area falls in the definition of private nuisance and the persons living in the immediate neighbourhood or even in vicinity thereof, were entitled to enforce their right of quiet enjoyment of their properties by seeking to restrain somebody or anybody living in the same area for disturbing the peace and tranquility thereof, by opening and establishing school in residential quarters".
' In the said case it was observed that plaintiffs have established prima facie case, balance of convenience and irreparable loss so they were entitled to injunction restraining the defendants from opening and establishing school in a residential area.
7. In the instant case also the school has been set up in purely residential area and in the building leased out to the respondent No,3 only for residential purposes. There is nothing on the record to suggest that the Station Commander is authorized to allow the establishment of a school in a residential area without converting the lease for a residential building into commercial one. There can be no denial of the fact that establishment of school is a source of private nuisance for the neighbourers. Such schools are being run on commercial basis without having regard to the difficulties being faced by the inhabitants of the vicinity/neighbourers. Even some of the case-laws referred to above by the learned counsel for the petitioner supports the contention of the other side and in most of the case-laws it is observed that conversion of a residential property into commercial one in residential area was a nuisance affecting the peace of the entire locality. So, keeping in view all the facts and circumstances of the case, I find no legal infirmity or illegality in the impugned judgment passed by the learned Addl: District Judge, Rawalpindi. This order has been passed by the learned Addl: District Judge, by exercising the jurisdiction vested in him after applying judicial mind so it warrants no interference by this Court. In these circumstances, the revision petition is hereby dismissed.