SULTAN TANVIR AHMAD, J.---Present appeal has been filed against order dated 28-10-2016, whereby plaint in Suit No.241 dated 27-05-2016 titled "Sheikh Azfar Amin v. Chaudhry Asif Ali and others" was rejected, by learned Civil Judge Class-I, Rawalpindi, under Order VII, Rule 1 1, Code of Civil Procedure, 1908.
2. The facts, necessary for decision of this regular first appeal, are that the appellant filed suit for permanent and mandatory injunction against the respondents alleging therein that playground of Gulrez Housing Society , situated at Sir Syed Avenue, Phase-III, Rawalpin di, measuring 9 Kanals 10 Marlus (the 'Property' ) was transferred vide deed No.15570 dated 15-08-2005 to Gulrez Community Society/respondent No.4. The Property , was allegedly maintained and had been utilized as playground in the past. As per averments of the plaint, construction of Marquee (Marriage Hall) and its parking over the Property is illegal and unlawful as well as against Regulations of the Rawalpindi Development Authority . The appellant has complained about the nuisance emanating out of the alleged conversion and construction, its usage etc. It is pleaded the aforesaid is amounting to nuisance to public as the entire vicinity is comprised of residential area and in particular it is causing nuisance to the Appellant who is having physical and legal proximity with the complained activity . The appella nt has disclosed various other grievances which are narrated in the plaint.
3. Said suit was being contested by the respondents by filing written statements and raising factual as well as legal objections.
4. During pendency of the suit, on 31-05- 2006, application for rejection of plaint, under Order VII, Rule 11 of Code of Civil Procedure, 1908 was filed by respondents Nos.1 to 3, inter alia, on the grounds that suit is barred by law; plaint is neither maintainable nor proceed able in view of the definition of public nuisance and requirement of law to obtain permission of the Advocate Gene ral, in the mode and manner as mentioned in section 91, Code of Civil Procedure, 1908. In same application jurisdiction of the learned Trial Court was also challenged. This application was contested by filing counter-af fidavit along with reply .
5. On 28-10-2016, learned trial Court rejected the plaint while agreeing with the averments in the application under Order VII, Rule 1 1, Code of Civil Procedure, 1908.
6. Sh. Azfar Amin, Advocate/appellant has appeared in person and argued that learned Trial Court has erred in law while reaching to the conclusion that consent of Principal Law Officer of the Province was required, in the circumstances of the case. Further submi tted that conduct of Respondents has simultaneously given rise to cause to take legal action, in the individual capacity , being private nuisance. The Property and the complained activities originating from the same have sufficien t proximity with the houses/land of the appellant/plaintif f as well as it is resulting into interference in the use and enjoyment of rights attached with personal property of the Appellant. It has been argued that damage caused is not too remote and it is natural consequence of the complained conduct, It has further been argued that learned Trial Court has ignored averments in the plaint and the matter in question required soliciting proper evidence after framing of the issues. Learned counsel in support of his arguments has relied upon "Mrs. Naz Shaukat Khan and 3 othe rs v. Mrs. Yasmin R. Minhas and another" (1992 CLC 2540 ), "Dr. Shahzad Alam and 2 others v. Beacon Light Academy and 5 others" (2011 CLC 1866 ), "Muhammad Issa Abbasi through Legal Representatives and others v. Abdul Qadir through Legal Heirs" (PLD 2013 Sindh 60), and "HajiAli Gohar and 10 others v. Province of Sindh, through Secretary Local Government and 6 others" ( PLD 2016 Sindh 292 ).
7. On the other hand, Syed Qalb-i-Hassan, learned Advocate, appearing on behalf of respondents Nos.1 to 3 has forcefully supported the impugned order and argued that section 91 of the Code of Civil Procedure, 1908 applies to facts of the case and suit could not have proceed further in view of the said provision of law; that appellant could not blow hot and cold in one breath, by complaining about the public nuisance and private nuisance at the same time; that Order VII Rule 11 of Code of Civil Procedure, 1908 has rightly been applied by the learned Trial Court; that in appropriate cases Order VII Rule 11 can be invoked by looking into the contents of the written statements, affidavits and material on record. In support of his, contentions, learned counsel has relied upon "Abdullah and others v. Muhammad Amin" (PLD 1968 Lahore 1235 ), "Zafar Ahmad Khan and 3 others v. Province of Punjab and another" (1986 SCMR 423), "Muhammad Ashfaq and another v. Sohail Hameed and 3 others"
(1986 CLC 2218), "Zarif Ahmad Khan and 3 others v. Province of Punjab and another" (1986 SCMR 684),"Lime Aiman and 43 others v. Muhamamd Yousuf and 10 others" (2002 CLC 1620 ), "S.M. Sham Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs" (2002 SCMR 338),"Maj. (Rtd.) Hamid Ali Khan v. Mian Muhamamd Anwar"( 2000 CLC 1633 ), "Moulvi Muhammad Ishaq and anoth er v. The P.O.F. Cooperative Housing Building Society , Wah Cantt." (1989 SCMR 1052 ) and "Niaz Hussain and others v . Nizamuddin and 13 others" ( 2017 YLR 1691 ).
8. Learned counsel appearing on behalf of Respondent No.5 has supported and adopted the line of arguments advanced by learned counsel for Respondents. Nos.1 to 3. He has further submitted that he reiterates the stance of Rawalpindi Development Authority before the learned Trial Court.
9. We have heard learned counsel for the parties at length and gone through available record with their proficient assistance and also considered the case law relied upon by both the parties.
10. Arguments of learned Counsel of the parties have raised the following questions, based on the pleadings and available record:-
1. Whether an action or a chain of actions that possibly can constitute public nuisance or is being complained as public nuisance, at the sometime can give rise to a possible claim or cause action to an individual for private nuisance?
2. Interpretation of Section 91 of C.P .C. and its applicability?
3. Whether failure to obtain the permission from Advocate General was detrimental to the whole case?.
4. Whether rejection of plaint under Order VII, Rule II, C.P .C. is justified, in the circumstances of the case? and
5. Whether impugned order is per incuriam and learned Court, while rejecting the plaint, has ignored the law laid down by the Apex Court of the Country?
11. The right that is protected by the tort of 'private nuisance' is the right to enjoy one's property , while, the essence of the right that is protected by the crime and tort of 'public nuisance' is the right not to be adversely affected by an illegal act or omission that is jeopardizing the life, safety , health of public etc. The American Law Institute, Restatement of the Law, Torts, 2d (1979), section 821B(h) provides "unlike a private nuisance, a public nuisance does not necessarily involve interference with use and enjoyment of land". Although both the torts are separate from each other and the rights protected by the said torts are also dissimilar , hitherto it is true that same act or omission may give rise to both public and private nuisance.
12. In "Halsey V Essco Petroleum Co. Ltd." [1961] 2 All ER 145, as well as "Southport Corpn V Essco Petroleum Co. Ltd." [1954] 2 QB 182) Court of Appeal decided that same condu ct can amount to both private and public nuisance. In "British Celanese Ltd. v. AH Hunt (Cap acitors) Ltd."[{1969} 2 All ER 1252] it was held that an individual when suffers more particula r damage greater than that suffered by the public can maintain the action as an individual.
13. In "Re Corby Group Litigation"([2009] QB 335) the court of appeal approved the refusal to strikeout the claimant's claim for damages for person al injury in the tort of public nuisance on the ground that it had no real prospect of success since such damages could not be recovered for public nuisance.
14. The following extract of judgment by the Honourable Supreme Court of Pakistan in case titled "Abdul Rashid through Legal Heirs and 6 others v . Mahmood All Khan" ( 1994 SCMR 2163 ) is highly relevant:- "The offending acts of the tenant which may amount to nuisance should cause inconvenience to the neighbours. As in the present case the appellant's family is residing on the first floor of the building and as held in Mst. Firdous Begum v . Dr. Shamsunnisa ( 1982 CLC 332 ), they will be covered by the word 'neighbours'.
4. The word 'nuisance' has not been defin ed in the Ordinance nor is it capable of exact definition. It depends upon the facts, circumstances and acts which are committed or omitted by any person on his own land or that of others, creating offending effect, inconvenience, difficulty or damage to the neighbours, Clerk and Lindsell on Torts, 14th Edition, have described nuisance as follows:-- "The acts which constitute public nuisances are all of them unlawful acts. In private nuisance, on the other hand, the conduct of the defendant which results in the nuisance is of itself not necessarily or usually unlawful. A private nuisance may be and usually is caused by a person doing on his own land something which he is lawful entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbor by (1) causing an encroachment on his neighbour's land, when it closely resembles trespass, (2) causing physic al damage to his neighbour's land or buildings or works or vegetation upon it, or (3) unduly interfering with his neighbor in the comfortable and convenient enjoyment of his land. It may be a nuisance when a person does something on his own property which interferes with his neighbour's ability to enjoy his property by putting it to profitable use. It is also a nuisance to interfere with some easement or profits or other right used or enjoyed with his neighbour's land.
Nuisance of the third kind, causing an interference with the enjoyment of land, are: creating stenches by the carrying on of an offensive manufacture or otherwise, causing smoke or noxious fumes to pass on to the plaintiff's property , raising clouds of coal dust, making unreasonable noises, or vibration, using a building as a hospital for infectious diseases whereby the adjoining owners live in perpetual dread of infection, or using a house for prostitution, causing crowds to collect, watching and besetting a man's house so as to compel him to act in particular way, causing excessive heat to pass into an adjacent tenement comprised in the same block of buildings, abstracting heat and reducing premises to 'arctic conditions'. "
(Emphasis supplied)
15. This Court in case titled "Muhammad Rafique v. Tehsil Municipal Administration Chakwal and other s"
(2020 MLD 1360 ) has already expressed the following view: " A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property , without an actual Trespass or physical invasion to the land. A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community . Obstructing a highway or creating a condition to make travel unsafe or highly disagreeable are examples of nuisances threatening the public convenience. A public nuisance, as such, is actionab le only by the state, through criminal proceedings, injunction, or physical abatement, the same activity or conduct may also create a private nuisance to nieghbouring landowners and thus result in a civil suit.
(Emphasis supplied)
16. In this regard, the Honourable Sindh High Court in case titled "Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another" ( 1992 CLC 2540 ) accentuated as follows: "In short, therefore, it may be stated that there need not be any water -tight compartments for public and private nuisances. It is not uncommon that a specific nuisance may be purely a private nuisance or exclusively a public one. Yet there may be occasions where what is a public nuisance providing cause for punitive action under criminal law or attracting a mandatory written consent of the Advocate-General for institution of civil proceedings under section 91 of the Code of Civil Procedure, such may also be a private nuisance at the same time".
(Emphasis supplied)
16. The aforementioned forces us to say one act that is crime under section 133 of the Code of Criminal Procedure, 1898 and civil wrong under section 91 of the Code of Civil Procedure, 1908 as public nuisance, can possibly provide a cause for an action as private nuisance to an individual. In esse nce the difference is that section 91 of the Code of Civil Procedure, 1908 allows the action for public nuisance even in the absence of proof of special damages, however , where an individual can prove the special damage, can maintain the action as private nuisance for the same act. The damage will qualify as special if it is particular and direct.
17. Having said that one action can result into both private and public nuisance, we would like to address the remaining objections to the plaint which mainly became reason for rejection of plaint (i) two or more persons should have obtained consent from the Advocate-General (ii) construction of wedding hall, its site plan or approval are matters between the Respondents/Defen dants 1 to 3 and Rawalpindi Development Authority (RDA) and Appellant/ Plaintif f despite being neighbor has no concern or cannot maintain action.
18. It will be appropriate to examine section 91 of the Code of Civil Procedure, 1908, which is as under:
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.
Punjab Amendment: In section 91, after the word persons "having obtained the consent in writing of the Advocate-General", the words "with the leave of the Court" shall be substituted.
[Punjab (Amdt.) Act XIV of 2018]
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
(Emphasis supplied)
20. Section 91(1) provides that "though no special damage is caused" , which itself suggests that the permission of Advocate-General (prior to amendment of 2018) and now leave of Court is required, for public nuisance as it is collective cause for which suit is maintainable despite no special damage to any individual or requirement of proof of such damage to an individual. When it is particularly read with sub-section (2) of section 91, it is further clarified that the requirement of obtaining consent of Advocate-General (and now leave of the Court), is limited to the cases where no special damage is caused to more than one person but nothing limits the right sue that otherwise accrues or is available under the law, to a person. The suit by Advocate-General or his consent is primarily a representation of people in the locality or people concerned.
21. The significance of associating the Principal Law Officer of the Province in aforesaid provision has been elaborated by the Honourable Supreme Court in the case of "A. Razzak Adamjee and another v. Messrs Datari Construction Company (Pvt.) Limited and another ( 2005 SCMR 142 ) as follows: "The section pertains to suits relating to public matters, especially the public nuisance. It explains, firstly , that in case of public nuisance a suit can be instituted either by the Advocate General or by two or more persons having obtained the consent in writing of the Advocate-General. Secondly , that for such suit it is not a prerequisite that a special damage must have been caused and thirdly , that if allowed by law, any suit other than public nuisance can, well be brought and such other right cannot be limited merely because a suit of public nuisance has been filed. Plain reading of the section is indicative of a mere right of the Advocate General to file a suit either himself or by giving a consent in writing to two or more persons in whom the right to sue is vested. In either of the cases, no presumption of any sanctity is either attached to the Advo cate-General or is at all legally inferable from the words of the section. The intention of the legislature seems to be that where the apprehension, of public nuisance involving the interest of a larger number of people or a community as such is involved, the Principal Law Officer of the Government be also given a right to sue either on behalf of instead of such person. No more and no less. Any such suit is always liable to be proved through production of evidence like any other suit of the plaintiff.
No special sanctity can therefore be attached".
(Emphasis supplied)
22. Minute reading- of judgment of the august Supreme Court of Pakistan in case titled "Islamuddin and others v. Ghulam Muhammad and others" (PLD 2004 Supreme Court 633) further clarifies that if complained conduct amounts to private nuisance, the permiss ion of Advocate-General is immaterial. It will be further advantageous to reproduce relevant extract of Paragraph-8 of Islamuddin 's case (supra): "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 an file a suit for declaration/injunction on the stated allegation of causing public nuisance but obtaining the conse nt 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 I, Rule 8, C.P.C. but proce dure 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"
Besides it, in view of the findings of the High Court namely "in case of public nuisance and private nuisance, injury to the property and to a person would confer jurisdiction upon the Court except that in the case of public nuisance, consent of Advocate-General as required under section 91, C.P.C. would be necessary under the law, while in case of private nuisance no such consent would be required Put the relief for filing a suit for injunction and damages would be available in both kinds of nuisance" the objection being raised on behalf of appellants has no substance".
(Emphasis supplied)
23. Somewhat, in the similar situation, the Honourable Islamabad High Court while relying upon Islamuddin's case (supra), in case titled "Muhammad Ibrar Khan and another v. Deputy Commissioner and another" (2017 CLC 635) reached to the following conclusion:- "11. The right of the public to pass over a public highway is a public right. Under the civil law, there are two remedies against a person who causes any public nuisance. He may be sued under Section 91(1), C.P.C. or he may be sued by a private, individual unde r Section 91(2). Section 91 (2) makes it clear that nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. It is obvious that if a particular right of suit arises in favour of a particular person, even if there is public nuisance, even then such right of suit is not affected by provisions of Section 91, C.P.C. So if the plaintiffs are shown to suffer direct or special damage beyond that suffered by the general public, there is no reason why they should not be entitled to maintain their suits without the consent of the Advocate-General. Since the appellants want to prosecute the suit in their individual and independent capacities and not as, representatives of the residents of Mauza Shah Allah Ditta, I am of the view that the suit can proceed without the appellants having obtained the permission of the Advocate-General."
24. The Honourable Sindh High Court have also given similar findings in the case s titled "Haji Ali Gohar and 10 others v. Province of Sindh, through Secretary Local Government and 6 others" (PLD 2016 Sindh 292) and "Muhammad Issa Abbasi through Legal Representatives and others v. Abdul Qadir through Legal Heirs and others" ( PLD 2013 Sindh 60 ).
25. Having discussed all above, we can safely say that failing to resort to provision of section 91(1) of the C.P.C. is not terminal for a case, when the conduct complained, is also allegedly resulting into private cause of action or private nuisance.
26. Reading of plaint as a whole leaves hardly a doubt that it contained a bunch of grievances, some pertaining to public nuisance and others relating to private nuisance or cause in individual capacity . Paragraphs Nos.17, 18 and 27 of the plaint (besides other paras) are clearly demonstrating alleged infringement of private rights. Said paragraphs are as under:- "17 That in continuation of encroachment , the defendants Nos. 1 to 3 have started constructing the boundary wait around the playground for conversion thereof into the parking area of Marquee and thus practically restrained the public at large in general and the plaintiff in particular to have a free access to the playground and thus causing nuisance."
"18 That the act of the defendants Nos.1 to 3 to construct Marquee is not only against the Regulations but also amounting to nuisance as the entire vicinity is comprised upon the residential houses and the Marquee/event Management Lawn/Banquette Hall or any such like activity will create nuisance in the urea."
"27. That the construction of Marquee in the area on land adjacent to the playground in front of the property Nos.99-B and 99-C street 6, Phase III, Gulrez Housing Society , Rawalpindi will create nuisance due to noise, traffic, commercial activity , rush, late night gatherings of non-residents of area, movements of vagabonds under the garb of functions etc. etc. for the public at large in general and for the plaintiff in particular .The plaintiff is personally aggrieved of the illegal construction, encroachment and proposed activities in the Marquee."
(Underlining added)
27. Now coming to another 'argument Syed Qalab Hussain, Senior Advocate that construction of marriage hall adjoining to house/property of the Appellant is the matter purely to be seen by Rawalpindi Development Authority (RDA)/Respondent No. 5 and the Appell ant/Plaintif f despite being neighbour has no concern or cannot maintain action. It can be seen from perusal of impugned order that this argument has influenced the decision of learned Trial Court, as already observed above. We are afraid that such assumption to non-suit the Appellant is against the basic principles of tort of nuisance. Nonetheless, permission can be a defense or a mitigation factor , subject to examination of other important features. Factors like (i) level of interference (ii) public utility as well, as benefits to public of the alleged conduct and harm being suffered by those who may be affected (or being effected or already suffered loss) and its magnitude or gravity , (iii) the original utility of land, and (iv) nature of locality etc., were yet to be seen through evidence. We do not want to go into further details as to the permission by Rawalpindi Development Authority/Respondent No. 5, if any granted, as the case is still at the initial stage.
28. There can be no liability to anyone for doing what the law permits, but subsequent permissions from the local authority cannot always justify nuisance or can be taken as a license to create nuisance, especially when it is done in a wrongful or negligent manner . Any damage to private individuals caused by the unreasonable method and manner of operation entails liability notwithstanding permission of local authority , subject to features mentioned above. The existence of permission by authority (if justifiable and meets the criteria of law, reasonableness and public interest), refusal of injunction may be justified but rarely determines actionability and it can influence the remedy . Thus, it would not justify to non-suit someone strait-away by applying Order VII, Rule 11 of C.P.C., despite injury or loss. Further guidelines, in this regard, are given by the Honourable Sindh High Court in the cases titled "Dr. Shahzad Alam and 2 others v. Beacon Light Academy and 5 others" (2011 CLC 1866 ) and "Muhammad Issa Abbasi through Legal Representatives and others v. Abdul Qadir through Legal Heirs and others"
(PLD 2013 Sindh 60 ). Relevant part of Paragraph-14 of Dr . Shahzad Alam's case (supra) is as follows: "14. In a leading English authority , Sheller v. City of London Electric Lighting Company [1895] 1 Ch 287, the Court of Appeal observed as follows: -- "Neither has the circumstance that the wrongdoer is in some sense a public benefactor (e.g. a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed." (p.316)
Thus, individual rights were regarded as trumping any public interest that sought to outweigh those rights.
But those were Victorian times, when (at least in England) property rights were regarded as sacrosanct.
Many decades later, in Miller v. Jackson [1977] 3 All ER 338, the Court of Appeal was confronted, in the context of nuisance, with the issue of balancing private rights against the public interest. Lord Denning MR characteristically stated as follows:- "There is a context here between the interest of the public at large and the interest of a private individual.
The public interest lies in protecting the environment by preserving our playing fiel....The private interest lies in securing the privacy of his home and garden without intrusion or interference by anyone... As between their conflicting interests I am of opinion that the public, interest should prevail over the private interest." (pg. 345)"
(Emphasis supplied)
However , a subsequent Court of Appeal, in "Kennawey v. Tounsin" [1980] 3 All ER 329, refused to follow Miller v.
Jackson on the ground that it was not consistent with what had been held in Shelfer's case (see at pg. 333b). A leading treatise on the law of torts, Clerk and Lindsell on Torts (18th ed., 2000), after considering the above cases, suggested as follows: "....lt 'is submitted that the fact that the defendant's activity represents a public interest of a valuable social or economic kind should not confer on him a licence to commit what would otherwise be a tort (unless he can show statutory authority). But since the quest ion whether a certain activity and interference amounts to a nuisance necessarily involves the balancing of competing interests, it seems desirable and even essential to take the nature of those interests fully into account, and it would appear that this was what Lord Denning was doing in his assessment. Public interest therefore is not in itself a defence, but a factor in assessing reasonableness of user."
(para 19-72)
In my view , the foregoing extract from "Clerk and Lindsell" represents the better view ."
29. As per our considered view, while rejecting Plaint under Order VII, Rule 11 of the Code of Civil Procedure, 1908, learned trial Court has further ignored Order VI of the Code of Civil Procedu re, 1908. It is overlooked that the Appellant was only required to give material facts in the Plaint as per Order VI, Rule 2, C.P.C. and the further and better particular of the claim, it could have been ordered under Order VI, Rule 5 of the Code of Civil Procedure, 1908. In case after receiving the evidence and on the basis of public interest; Court reaches to the conclusion that injunction may cause injustice to others or harm to the public interest, the law settled by the Honourable Supreme Court in the case titled "Syed Phool Badshah and others v. ADBP through Manager , Peshawar Branch and others" ( 2012 SCMR 1688 ) should have been followed: "7. The provisions of Order VII, Rule 7 of the Civil Procedure Code empowers the Court to grant an effective or ancillary relief even if not prayed, as the plaint as whole is to be looked into in order to determine relief for which plaintiff is entitled, however , no relief can be granted upon the facts and documents not disclosed in the pleading".
(Emphasis supplied)
30. The aforesaid view has been reaffirmed in the case titled "Mst. Akhtar Sultana v. Major Retd.. Muzaf far Khan Malik through his legal heirs and others" ( PLD 2021 Supreme Court 715 ) as follows: "40. Such an objection has earlier been agitated before, and decided by, the superior Courts of our jurisdiction in several cases. And the judicial consensus that has evolved is that courts are to look at the substance of the plaint not its form, and in appropriate cases the courts can would the relief within the scope of the provisions of Order VII, Rule 7, Code of Civil Procedure Code, 1908 ("C.P .C"). The courts are empowered to grant such relief as the justice of the case may demand, and for purposes of determining the relief asked for or the relief to which the plaintiff is entitled, the whole of the plaint is to be looked. The provisions of Order VII, Rule 7 of the C.P.C. empowers the courts to grant an effective or ancillary relief even if it has not been specifically prayed for ."
(Emphasis supplied)
31. In view of the above discussion, it also appears that learned Trial Court has gone into overexcited mechanics instead of following the law laid down by the Honourable Supreme Court in the case titled "Javaid Iqbal v. Abdul Aziz and another" (PLD 2006 SC 66), wherein it is clearly observed that the Code of 1908 is enacted to regulate the proceedings and mainly contains procedural laws, which are subservient to the cause of justice and, therefore, such laws neither limits nor control the power of the Court to pass an Order or Decree, which is necessary to do complete justice in the facts and circumstances of the case.
32. We have examined the plaint, record and impugned judgments from all angles and arrived at the conclusion that rejection of plaint, in the circumstances and at the given stage of the case, is unjustified, therefore, this Appeal is accepted , Judgment and Decree dated I 0 28.10 .2016 are set aside and consequently , instant case shall be deemed to be pending before learned Trial Court, which shall complete evidence in the case and decide the same within five months from receipt of the certified copy of this Judgment, even by conducting day to day hearing, if so required.