' ZAFAR AHMED RAJPUT, J.--This Constitutional Petition is directed against the order dated 21.05.2015, whereby the learned 4th Additional District Judge, Karachi (East) while dismissing the Civil Revision Application No. 80 of 2014, maintained the Order dated 13-11-2014, thereby the learned 4th Senior Civil Judge, Karachi (East) dismissed the application, filed by the petitioners /defendants under Order VII, Rule 11, C.P.C. In Suit No. 879 of 2014.
2. Briefly stated, the facts of the case are that the respondent Nos.3 to 8 filed a Civil Suit bearing No. 879 of 2014 before the Court of 4th Senior Civil Judge, Karachi (East) for permanent injunction, alleging therein that they are residing adjacent to suit property i.e. House No.148-E, Khalid Bin Waleed Road, PECHS, Karachi, which was purchased by the petitioners in the month of February; 2014 and thereafter they started construction for the conversion of the said residential building into a car showroom, as such, they have to suffer nuisance at the hands of petitioners. The respondents Nos. 3 to 8 have; therefore, prayed for the following reliefs:-
(a) To grant permanent injunction against the defendants thereby restraining him, his agents, servants, colleagues, representatives and/or anybody else acting through him or on his behalf from threatening, creating harassment and /or disturbing the peaceful life of the plaintiffs.
' To restrain the defendant No. 1 to convert/ construct the Bungalow No. 148-E from residential to commercial in residential area.
' To direct the defendant No. I to immediately stop the construction/ conversion of the Bungalow No. 148-E from residential to commercial in residential area.
' To direct the defendants Nos.2 and 5 to take immediate, appropriate legal action by stopping /demolishing of residential unit into commercial purpose in residential and removing the construction material and machinery from the property in question of defendant No. 1.
(e) Cost of the suit and/ or any other relief, which this Hon'ble Court may deem fit and proper in the circumstances of the case may be granted.
3. The petitioners being defendant Nos. 1 and 2 contested the said suit by filing their written statement. They also filed an application under Order VII, Rule 11, C.P.C. For rejection of plaint on the ground that the plaint does not disclose any cause of action and the same is also barred under the law having been filed without permission of the Advocate General, Sindh, as required under Section 91, C.P.C. The said application was dismissed by the learned 4th Senior Civil Judge, Karachi (East) after hearing the parties, vide order dated 13-11-2014. Being aggrieved, the petitioners impugned the said order in Civil Revision Application No. 80 of 2014, which was also dismissed by the learned 4th Additional District Judge, Karachi (East) vide order dated 21-5-2015. It is against this order; that the instant Constitutional Petition has been preferred by the petitioners.
4. It is contended by the learned counsel for the petitioners that the allegations leveled by the respondents Nos.3 to 8 in Civil Suit No.879 of 2014 are in the nature of public nuisance and the same has been filed by the said respondents without obtaining permission from the Advocate General, Sindh, which they could not do without fulfillment of legal formalities as required under Section 91 of C.P.C., moreover no cause of action has been shown by the respondents Nos.3 to 8 for maintaining the said suit against the petitioners/ defendants, as such, the plaint in the suit is liable to be rejected under Order VII, Rule 11, C.P.C., hence, the orders passed by the learned lower Courts below suffer from material illegality.
5. Heard learned counsel for the petitioners and perused the material available on record.
6. In order to appreciate the contentions of the learned counsel for the petitioner, we deem it appropriate to reproduce Section 91 of C.P.C., herein under:-
91. Public nuisance.--(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.
7. The word "nuisance" is derived from French word "Nuire" which means to injure, hurt or harm.
Literally the term nuisance means a thing, or a situation that is annoying or causing trouble. While using in respect of law, it is a behavior of somebody that annoy other people, and that a Court of law can order the person to stop. According to Black's Law Dictionary, it means "the 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 damages. That which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him." In a liberal sense, anything that endangers life or health, gives offences to sense, violates laws of decency, or obstructs reasonable and comfortable use of property would constitute nuisance.
8. Section 91 of the C.P.C. Provides that a suit for declaration or injunction in respect of public nuisance can be filed by two or more persons with the permission of the Advocate-General.
However, there is an exception to this principle as embodied in subsection (2), which inter alia provides that the provisions of subsection (1) of Section 91, C.P.C., would not limit or otherwise affect any right of suit, which may exist independently. In the instant case the respondents/plaintiffs have claimed that the conversion of a residential unit into commercial unit (car showroom) has disturbed the peace and their privacy and security and they would face the constant disturbance and agony along with their families due to the said illegal conversion. Therefore, in our view, they have independent right to sue on the basis of these averments and no permission of the Advocate-General is required for filing a suit in respect of such rights, as subsection (2) provides an exception to subsection (1) of Section 91, C.P.C.
9. Even otherwise, it is an admitted position that the civil suit filed by the respondents Nos.3 to 8 contains multiple prayers and the permission for maintaining a suit against the nuisance from the Advocate General, Sindh under Section 91 of the C.P.C. For the sake of arguments would require under the law only to the extent of prayer clause (a) of the suit and the same is not required for the reliefs claimed by the said respondents in prayer clauses (b) to (d). It is an elementary principle of law that the plaint cannot be rejected in piecemeal, plaint can only be rejected if all the reliefs claimed by the plaintiff are barred under the law. Even if one prayer is maintainable, the plaint cannot be rejected Under Order VII, Rule 11 C.P.C.
10. For the foregoing facts and reasons, we do not find any merit in this Constitutional Petition, which is hereby dismissed in limine, along with listed applications.