' SALAHUDDIN PANH WAR, J: Through, instant Civil Revision, applicants have assailed the judgment and decree dated 4th August 2014 passed by 2nd Additional District and Sessions Judge, Dadu in Civil Appeal No,12 of 2014 "Re-Haji Ali Gohar and others v. Province of Sindh and others" maintaining thereby the order dated 27.01.2014 passed in F.C. Suit No,02 of 2012 by Senior Civil Judge, Dadu rejecting the plaint of the applicants/plaintiffs under Order VII, R.11, C.P.C.
2. Succinctly, relevant facts are that applicants/plaintiffs filed suit for Declaration and Permanent Injunction pleading therein that there is a marriage Hall with name and style of 'AghaJee Marriage Hall' situated in Shahani Mohalla which was got constructed by the respondent/defendant No,3 against the wishes of the applicant/plaintiffs so also of people of Mohalla as it was a residential area. Due to cooking and burning of food, the entire atmosphere became totally polluting and till late hours of night drum-beatings continues as well as in every marriage there appear a musical function with voice by loud speaker; parking of vehicles; which resulted blockage for frequent movement of womenfolk, children as well as inhabitants of the locality and so also it is damaging public tranquility. It was further asserted that plaintiffs/applicants through his son and attorney and other people of mohalla repeatedly approached the defendants/respondents for shifting Marriage Hall to other place suitable for them as due to Marriage Hall, the applicants/plaintiffs suffering hardship and mental agony and have become sick from hypertension and other allied disease which has resulted health condition day by day deteriorated. The applications also approached to higher authorities including the defendant/respondent No,2 against Marriage Hall in the residential area and the defendant/ respondent No,2 after calling the parties of both sides and hearing them on 09.12.2009 concluded that defendants/respondents Nos.3 to 7 were found violating the mandatory provisions of law, therefore, the SHO Dadu was directed to register the FIR against the defendants/respondents Nos.3 to 7. It is also alleged that even attorney of plaintiff applicant namely Muneer Ahmed filed C.P. No,321 of 2009 against the Government Official and also the defendant/respondents Nos.1 and 2 opposing the function of the Marriage Hall and the Honourable High Court of Sindh, Circuit Court Hyderabad vide order dated 12-11-2009 disposed of the petition with further order that party aggrieved may approach the Civil Court. It is also alleged that in the first week of January 2012 the private defendants without obtaining prior permission or consent from plaintiff/applicant and also from Mohalla people got started construction work of the upper-storey of marriage Hall therefore, plaintiff/applicant and other mohalla people approached defendants/ respondents Nos.3 to 7 and prevented them from constructing the upper-storey over marriage hall on the ground that privacy of their house will be badly affected but defendants/respondents refused to stop construction work. Even private, defendants/respondents became ready to fight. Plaintiffs/applicants claiming such acts as nuisance besides being illegal, mala fide, void and against principle of natural justice.
' With reference to above pleaded facts, the plaintiffs / applicants sought the following relief(s):- a. That this Honourable court may kindly be pleased to Decree the suit of the plaintiff declaring that the construction of Marriage Hall and also the upper storey over the said marriage Hall in residential area has created the nuisance for the plaintiffs and also the Mohalla people is in violation of under Easements Act and thus it is liable to be shifted from there to some other commercial place and the act of private defendants is illegal, mala fide, void, ab initio, without justification and against the principle of natural justice; b. That this Honourable court further be pleased to grant permanent injunction against the defendants restraining and preventing them from arranging any function of any kind or getting the construction work over the Marriage Hall (upper storey) by themselves or through their friends, relatives, agents, attorneys etc.
3. Pursuant to the notice(s) the defendant/respondent No,3 caused appearance; filed objection to injunction application so also an application under Order VII, R. 11, C.P.C. For rejection of the plaint of the plaintiffs/applicants. The learned trial court, having heard the arguments on both applications allowed the application of the defendant/respondent No,3 and in consequence thereof rejected the plaint of the applicants/plaintiffs under Order VII, R. 11, C.P.C.
4. The applicants/plaintiffs filed the Civil Appeal No,12 of 2014 against rejection of their plaint; appeal was made over to the court of learned 2nd Addl.. District Judge, Dadu, who, having heard the parties, also dismissed the appeal of the applicants/plaintiffs.
5. Learned counsel for applicants has argued that both courts below have committed illegality while rejecting plaint under Order VII, rule 11, C.P.C.; plaintiffs case was relating to easements right, but learned appellate court judge, while referring section 91, C.P.C. Dismissed appeal; such approach is unwarranted under the law; it is settled principle of law that parties shall be allowed to agitate their rights on merits, but here applicants were knock out on technicalities.
6. Learned counsel for the respondents while refuting the above contentions has argued that orders of both courts are according to law; applicants have no cause of action to file this suit; instant suit is still born child hence complete adjudication by adducing evidence is not required under the law; instant issue was already decided by different courts, having jurisdiction, in accordance with law, thus this revision is devoid of merits.
7. I have heard the respective parties and have examined the available record. At the very outset it would be significant to make a distinction that while exercising revisional jurisdiction this Court cannot disturb the 'factual controversy' resolved by subordinate courts unless it is surfaced that impugned judgments are the result of non-reading, A misreading and violation of legal principles.
It is settled principle of law that when the revision is purely confined to examine legality of exercise by two courts below in interpreting a 'legal issue/question' then said principle will not operate as confining the 'revisional jurisdiction' of this Court because very purpose of 'revisional jurisdiction' is meant to correct an illegality. An order of rejection of plaint under Order VII, R.11, C.P.C. Is a pure question of law hence even if same has been stamped by appellate Court yet this Court can competently examine and disturb the same because the factual controversy shall have effect on the parties of us alone but a decision on law will have binding effect upon all. Thus, I am not convinced with plea of learned counsel for respondents regarding maintainability of petition solely on the count of concurrent findings of two courts below.
8. Let's proceed further. Since both the court (s) below have rejected the plaint of the applicants/plaintiffs with reference to application of Section 91 of the Code, therefore, it would be in all fairness to refer the same first to examine its scope and application. The same reads as:-
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, though 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 provision of Section 91(1), C.P.C., no doubt, requires written permission of the Advocate General for filing a us by two or more persons in respect of 'public nuisance' who, even have not claimed to have suffered any special damages. This seems to meet a situation where two or more persons intend to complain about 'public nuisance' though no special damage is caused to them by such 'public nuisance'. However, the subsection (2) of Section 91 of the Code itself makes it clear that the condition, provided in subsection (1) shall not limit or affect a right of suit which may exist independently. The subsection (2) seems to make it clear that the condition of subsection (1) shall not come in the way to a person's right to file a us where he claims to have suffered special damages or loss even if the same are result of 'public nuisance'. It seems to be in line with settled maxims that 'there is always a remedy against a wrong'. Reference can be made to the case of islamuddin v. Ghulam Muhammad' PLD 2004 SC 633 wherein it was held that:
8. We have heard parties counsel and have also gone through the available record thoroughly. It is to be noted that before initiating legal proceedings the respondents/plaintiffs sought permission from Advocate General of the Province a required under section 91, C.P.C. To institute a suit. This provision of law envisages that either the Advocate General can himself file a suit or he can consent in writing for institution of a suit on, the application of two or more persons. It is to be noted that satisfaction of the Advocate General to give consent for filing of a suit to private persons to whom no special damage has been caused, prima facie, indicates that a case of public nuisance exits. Although an individual in whose favour a right exists, independently can file a suit for declaration/injunction on the stated allegation of causing public nuisance but obtaining the consent of the Advocate General strengthens the cause of the person who wants to institute a suit for declaration ; injunction in respect of alleged public nuisance and institution of such suit of public nuisance would be deemed to be a representation on behalf of people residing in the vicinity where the commission of public nuisance is being alleged. It is submitted before us that the respondents/plaintiffs had filed a suit in representative capacity under Order 1, Rule 8, C.P.C. But procedure laid down therein was not followed, therefore, the suit should be deemed to be on behalf of respondents/plaintiffs in their individual capacity. It is not possible for us to accept this assertion of the appellants in view of the consent of the Advocate General in favour of respondents/plaintiffs to institute a suit. Even otherwise, there is no bar upon an individual to institute a suit for a right existing in his favour in respect of the cases pertaining to public nuisance without obtaining consent of the Advocate General , therefore, non-following the procedure under Order I, Rule 8, C.P.C. Would not be fatal in given circumstances of the case. (underlining is supplied for emphasis.)
' In another case of Clifton and Defence TW Association v. President CCB (PLD 2003 Karachi 495), it was held that: "An act at the same time can be both, public or private nuisance, public because it effects adversely many person or community at large and private in the sense that it also entails special damages or injury to private and individual right of one or few. Where an act complained of is both public and private nuisance, then any person effected by such wrong or nuisance may bring an action without permission of Advocate-General".
' In another case reported as PLD 2003 Karachi 477, it was held : 'Right of enjoyment of a property is independent right and if it is shown that the public functionaries acts in a manner as it may encroach upon a private right which may also be invasion of a public right than individual whose rights are encroached may bring an action against such invasion'.
9. The term 'public nuisance' is not defined by Section 91 of the Code but to understand the meaning therefore, help is to be taken from the meaning provided by Section 268 of the P.P.C.
Which defines the public nuisance as:- 'Public Nuisance'.--In the Pakistan Penal Code 'public nuisance' has been defined as under:- 'Section 268. A person is guilty of a pubic nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who-may have occasion to use any public right. A common. Nuisance is not excused on the ground that it causes some convenience or advantage'
' The term 'nuisance' is defined by Black's law dictionary as: : Nuisance is that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another, or to the public, and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage. State ex rel. Herman v. Cardon, 23 Ariz. App. 78, 530 P.2d 1115, 1118. That which annoys and disturbs one in possession of his uncomfortable to him; e.Gsmoke, odors, noise, or vibration. Patton v. Westwood Country Club Co. , 18 Ohio App. 2d 137, 247 NE 2d 761, 763, 47 0.0. 2d
247. The term is incapable of exhaustive definition which will fit all cases, as it is very comprehensive and includes everything that endangers life or health, gives offense to senses, violates laws of decency, or obstructs reasonable and comfortable use of property. U.S V. Country Board of Arlington Country, D.C. Va., 487 P.Supp, 137,
143. An offensive, annoying unpleasant, or obnoxious thing or practice; a cause of source of annoyance, especially continuing or repeated invasion or disturbance of another's right, or anything that works a hurt, inconvenience or damage.
Renken v. Harvey Aluminum (Inc.) D.C. Or., 226, F. Suppl. 169, 175'
' Expression of 'public nuisance' had also been defined/explained in the judgment reported as Sultan Ahmed v. Wahid Hussain (1991 MLD 1340) in the following terms:- " The word 'nuisance' is derived from French word 'Nuire' which means to injure, hurt or harm.
According to Shorter Oxford Dictionary, it means 'anything injurious or obnoxious to the community or to the individual as member of it, for which some legal remedy may be found'. Liberally anything that causes annoyance or that works hurt or injury, harm or prejudice to an individual or the public or anything wrongfully done or permitted which injures or annoys another in the legitimate enjoyment of his legal rights would constitute nuisance.
10. From the reading of the above definition (s) and explanation(s), it appears that the nuisance shall stand completed if the act or omission of a person results in causing any 'annoyance', 'inconvenience' or 'discomfort' to other person of vicinity/neighbourhood towards their legal rights, arising from 'easement rights'. Let me be specific that 'nuisance' (infringement of easement rights) comes to existence when one acting within his rights but avoid his obligation towards people of vicinity/neighbour hood. I have no hesitation to admit that one has absolute right to enjoy right of ownership over and in respect of his property but at the same time such absolute rights do not authorize him to use his such property in a manner or fashion which results into 'annoyance', 'inconvenience' or 'discomfort' to people of vicinity or neighbor hood. The 'easement rights' cannot be confined to that of 'light' and 'air' only. An act or omission causing 'annoyance', 'inconvenience' or 'discomfort' will fall within meaning of 'nuisance'. Reference can be made to the case of "Re-Clifton and Defence TW Association v. President CCB" (PLD 2003 Karachi 495) wherein it was held that: 'What act constitute a public nuisance are not defined under the Code of Civil Procedure.
Nuisance cannot be defined exactly and exhaustively, all definitions are merely illustrative, it is premise on large number of variables. Causes keep on adding with emergence of new and complex inter personal relationship between person to person and person to society. Nuisance amounts to interference with the person's use or enjoyment of his property or any right appurtenant thereto, a tortious act.'
11. Having said I 'can safely say that resort to provision of Section 91(1) of the Code will not be necessary where one or more than approaches to the Court regarding declaration of a nuisance while claiming an invasion to their 'easement rights' but their such approach will fall within meaning of Section 91(2) of the Code which, otherwise, recognizes the right of an individual to bring such us.
12. Now, I shall revert to merits of the case. In the instant case the applicants/plaintiffs have alleged that use of property (marriage Hall) by the respondent has been causing serious discomfort and annoyance resulting in disturbing their 'easement rights' because of:- i) late night function (s) at marriage Hall; ii) use of Eco-sound and loud speaker in marriage Hall; iii) cooking of meal at marriage hall causing smoke; iv) drum-beating e.t.c; v) disturbance to free movement of children and mohalla people; ' No doubt, one has a right to enjoy music but not at such volume that it would cost the right of neighbour; one does have a right to arrange gathering or feast at his place but not by discomforting or annoying others to enjoy their right to reach at their doors. In the instant matter the complaint of the applicants/plaintiffs, if established, would constitute a 'nuisance'
(infringement of their individual rights to enjoy property and rights to live therein).
13. Thus, these aspects were ignored by both the Court(s) below rather they fell in error while appreciating the object and application of Section 91(1) of the Code, thus exceeded in exercising their jurisdiction. Accordingly, both the judgments/orders of lower courts were set-aside by short order dated 21.11.2014 and case was remanded back in its original position as it was with direction to try and decide the same within six months in accordance with law and these are the detail reasons.