1. ' SYED HAIDER ALI PIRZADA, J.---These two High Court Appeals and cross-objections are inter- connected as they are directed against a judgment dated 20-12-1990 and decree dated 20-12-1991 passed by our learned brother Abdur Rahman, J. In Suit No, 570 of 1988, we intend to dispose of the same by this judgment.
2. ' The brief facts leading to the filing of the above two appeals are that respondents Nos. 1 and 2 in H.CA. No, 55 of 1991 filed the aforesaid suit in which the plaintiffs had prayed for the following reliefs:- "(a) that the defendant No, 1 are not entitled to commercialize the plot in the Clifton Area as it would create a public nuisance; especially in the absence of supporting basic infra-structure, over population and shattering of the calm and peaceful atmosphere of the area known as Kehkashan, KDA Scheme No, 5 as stated in para 16 above;
(b) permanent injunction restraining defendant No, 1 from erecting- multistoreyed building which would create over population a public nuisance and shattering of calm and peaceful atmosphere as stated in para 16 above;
(c) any other relief this Hon'ble Court deems fit."
3. ' The abovementioned suit for public nuisance was filed by the plaintiffs under section 91 of the C.P.C. With the permission of the Advocate-General Sindh Karachi. (Messrs A. Razak Adamjee and Abdul Hamid Adamjee are hereinafter referred to "the plaintiffs" and M/S Datari Construction Company (Pvt) Ltd. Is hereinafter referred as "defendant No, 1" and Karachi Building Control Authority is hereinafter referred as "defendant No, 2"). It is averred in para 1 of the plaint that "the plaintiffs alongwith other persons some of whom are mentioned in Annexure 1 hereto own and occupy residential premises in the area known as Kehkashan, KDA Scheme No, 5, Clifton Karachi". It is the case of the plaintiffs that sometime in 1982 defendant No, 2 without consulting the residents of the Clifton area as a general policy decided to permit commercialization of the areas of Karachi.
4. Pursuant to this policy a number of commercial buildings were created between Clifton Bridge and the crossing of main Clifton Road with Khayaban-e-Jami and some areas towards Mid East Hospital up to the canal along the main Clifton Road. In 1984 Messrs Shaista Estate (Pvt) Limited applied and obtained permission from defendant No, 2 to commercilize plot No, G-7, Block 9, KDA Scheme No,
5. However, upon the representation of the residents of the Clifton area, the permission was suspended against which M/s. Shaista Estate (Pvt) Ltd. Filed a Constitutional Petition No, D- 2480/85 which was allowed in regard to which two appeals were filed in the Supreme Court namely Civil Appeal No, 8-K of 1987 and Civil Appeal No, 9-K of 1987. The said Constitution petition related to cancellation of permission and did not affect the rights of the plaintiffs and others residing in the Clifton area filed a suit for public nuisance against M/s. Shaista Estate (Pvt) Ltd. And defendant No, 2 with the permission of the Advocate-General which is pending in this Court being Suit No, 54 of 1987. .
5. ' It is the further case of the plaintiffs that at the end of May 1988 the plaintiffs and some of the persons mentioned in Annexure 1 came to know that defendant No, 2 had granted another permission to defendant No, 1 to commercialize an amenity plot measuring 3546.66 square yards with shops on the ground floor and flats on the other floors. This plot No, G-19 measuring 3546.66 square yards in Block 5, KDA Scheme No, 5, Clifton, Karachi is immediately opposite plot No, G-7, Block 9, KDA Scheme No,
5. The plaintiffs alongwith some others mentioned in Annexure 1 sent a notice to defendant No, 2 under section 20-A of the Sindh Building Control Ordinance, 1979 (hereinafter called the 'Ordinance') through their Advocate requiring them to reject the plan submitted by defendant No, 1 restraining them from constructing a 9-storeyed building on the plot as it would not only deprive them of services as mentioned therein but would create a public nuisance and was contrary to Building Regulations of the defendant No, 2 itself. These conditions would be caused as there is no basic infra-structure to service highrise buildings in the Clifton area. This notice was delivered by hand and defendant No, 2 vide notice also dated 18-6-1988 withdrew permission of the plan of defendant No, 2 and required them to resubmit an amended plan under the Town and Planning Building Regulations. This was done before construction had even started by defendant No,
1. In response to the said notice, the defendant No, 1 sent a notice under section 20-A of the Ordinance to defendant No, 2 requiring them to restore the permission and without waiting for mandatory 60 days immediately filed a suit for declaration and injunction in the Court of Vlth Senior Civil Judge (East) Karachi being Suit No, 888 of 1988 against defendant No, 2 restraining them from cancelling the plan granted earlier on 26-5-1988. Alongwith this suit the defendant No, 1 also filed an application under Order XXXIX, Rules 1 and 2 read with section 151 C.P.C.
6. Praying that defendant No, 2 be restrained from cancelling the original approved plan and to permit the construction on the plot; upon which the said Vlth Senior Civil Judge (East) Karachi granted ex parte ad interim injunction as prayed. The plaintiffs averred that they and some other persons came to know about the suit for declaration and injunction. They applied to be made parties under Order I, Rule 10, C.P.C. This application was rejected saying that as the joinder of plaintiffs and others would change cause of action and that the plaintiffs and others were at liberty to file a separate suit against defendant No,
1. The plaintiffs had filed Constir tion Petition No, D-772 of 1988 against the VIth Senior Civil Judge (East) Karachi and the defendants. This Constitution petition was dismissed. The plaintiffs averred in para 16 of the plaint that "the plaintiffs and other persons mentioned in Annexure I are apprehensive of the host of problems that would arise by the construction of multi-storeyed building which tantamount to public nuisance. These inter alia include loss of privacy, over-population, traffic hazards, bad roads, congestion, smoky and polluted environment, creation of insanitary condition, break-down of essential services like electricity, gas, telephone and considerable reduction of water, to say nothing of secrity problems that are present in all overpopulated areas. In addition the calm and peaceful atmosphere to which the residents are entitled to preserve would also be shattered. Consequently the plaintiffs decided to file representative suit was filed earlier by them (Suit No, 54/87) to restrain the defendant No, 1 from creating these conditions. Plaintiffs averred in para 21 of the plaint that as the plaintiffs and the persons mentioned in Annexure I had no justiciable right regarding the grant and cancellation of the plan of defendant No, 1 by defendant No, 2 but who having a strong personal interest in the same have filed Constitution Petition No, D-773/88 against the Vlth Senior Civil Judge (East)
7. Karachi and the defendants. However, in order to restrain the defendant No, 1 from creating a public nuisance the plaintiffs have filed this representative suit on behalf of themselves as well as persons mentioned in Annexure I to restrain them from creating a public nuisance and to prevent defendant No, 1 from depriving them of the services and creation of hazards as stated in para 16 above". In the facts and circumstances stated above, the plaintiffs filed above suit for declaration and injunction after obtaining necessary permission from the Advocate-General Sindh.
8. ' The appellant/respondent No, 1 contested the suit by filing written statement. Defendant No, 1 contended that the suit is misconceived and not maintainable; (2) the suit and reliefs claimed are barred under the Specific Relief Act (3) the suit is bad for non-joinder of Karachi Development Authority, the lessors of the property in question and (4) the suit is barred under the principles of estoppel, waiver and acquiescence. Defendant No, 1 denied that the Clifton area was planned entirely as a residential area. With regard to contents of para 16 of the plaint, the said defendant denied the contents of para 16 as being incorrect and also irrelevant and immaterial to the controversy in the present suit. The said allegations relate to KDA and the Government of Sindh. No cause of action in respect of the said allegations has arisen against defendant No,
1. Defendant No, 1 also contended that in so far as the allegations relating to alleged over-population, traffic hazards, bad roads, congestion, smoky and polluted environment, creation of insanitary condition, break down of essential services like electricity, gas, telephone, considerable reduction of water and security problems and alleged deprivation of calm and peaceful atmosphere is concerned, these are matters concerning the Karachi Development Authority; Karachi Municipal Corporation and the Government of Sindh whose duty it is to provide the basic infrastructure to citizens/residents of Karachi and the alleged grievance of the plaintiffs in this regard in the present suit against defendant No, 1 is obviously misdirected, misconceived and not maintainable. In paragraph 21 of the written-statement, it is submitted that present suit is misconceived and not maintainable. The defendant 1 stated in paragraph 21 of the written-statement that "it is denied that defendant No, 1 is creating a public nuisance as alleged". It is further contended that the suit is not representative in nature as legal requirements have not been completed. The allegation relating to public nuisance and alleged deprivation of services and alleged hazards are misconceived, incorrect, unwarranted and unjustified. It is further pleaded that "it is, however, correct that the plaintiffs have no justifiable right in relation to grant and/or the withdrawal of the approval/NOC accorded to the defendant No, 1".
9. ' Defendant No, 1 pleaded that the suit and the reliefs claimed in the suit are barred under the Specific Relief Act. The suit be dismissed with special costs.
10. ' On the pleadings of the parties, the following consent issues were framed:- "(1) Whether the suit is misconceived and not maintainable?
(2) Whether the reliefs claimed are barred under the Specific Relief Act?
(3) Whether the suit is bad for non-joinder of K.DA. As defendant?
(4) Whether the suit is barred under the principles of estoppel; and waiver and acquiescence?
(5) Whether the proposed construction of defendant No, 1 on their property G-19, Block 5, K.DA.
11. Scheme No, 5, Clifton Karachi will constitute a public nuisance for the reasons stated in the plaint?
(6) Whether the defendant is liable to be restrained from raising construction of their property in accordance with the approval dated 15-3-1988 and 26-5-1988?
(7) What is the effect of Annexures X and X/1 to the written-statement of defendant No, 2?
(8) Whether the construction of the proposed multi-storeyed building will violate the privacy of the plaintiffs and other neighbours?
(9) To what relief(s), if any, is the plaintiff entitled? (10). What should the decree be?
12. ' The plaintiffs, in support of their case, have examined P.W. 1 Khalid Mukhtar, P.W. 2 Navaid Hussain, P.W. 3 Aijaz Ahmad, P.W. 4 Navaid Zafar, P.W. 5 Abdul Razaq Adamjee, P.W. 6 Iqbal Haider, P.W. 7 Zahid Adamjee, P.W. 8 Muhammad Hussain and P.W. 9 Younus Hashim Bengali. Defendant No, 1 has examined, in support of its case, D.W. 1 Sardar. Ikramullah, D.W. 2 Abdul Shafiq, D.W. 3 Muhammad Hafizullah, D.W. 4 Nandoo Ganesh, D.W. S Abdul Majeed Khatri, D.W. 6 Saleem Ahmad, D.W. 7 Syed Mahmood Qadri, D.W. 8 Manzoor Raza Zaidi, D.W. 9 Sharafat Ali, D.W. 10 Syed Shahnawaz Shah, D.W.
13. 11 Muhammad Siddique Essa, D.W. 12 Muhammad Mohsin Jaffery, D.W. 13 Qazi Arshad Jamal and D.W. 14 Abdul Ghaffar.
14. ' Learned Single Judge of this Court who tried the suit found issue No,4 in the negative. Upon Issues Nos. 1 and 2, he held that suit is maintainable. He held that relief under prayer (a) is not available to the plaintiffs but this finding is made subject to the undertaking given by Mr. Liaquat Merchant. He further held that "whereas no anticipatory injunction can he granted as a general rule, but it can certainly be granted in anticipation where the plaintiffs are able to show that from the apprehended act, nuisance is practically certain to result". Upon Issue No, 5, he held that the plaintiffs have not proved or established the case of absolute nuisance. He further held that "the Court has to see that the construction of a building does not exceed reasonable limits. If it exceeds reasonable limits, it is likely to cause the various problems mentioned above resulting in public as well as private nuisance". In this view, he held that defendant No, 1 having acted upon the approval of building plans acquired a legally vested right and such vested right cannot be taken away in any arbitrary manner. Upon Issue No, 7, he held that "the other letter dated 11-8-1988 from the Government of Sindh to the Director-General, K.DA. Advising the latter to withhold all N.O.Cs/sanctions in respect of the construction of defendant No, 1 on the said plot were granted much earlier. Past and closed transactions which have been acted upon, cannot be suspended, withheld or withdrawn in law". In this view, he held that "in any event the matter of privacy in the fast developing city of Karachi and the social environment in Clifton area is nonexistent". Upon issues Nos. 9 and 10, he held that "defendant No, l's structure of hollow plinth ground floor plus five storeyes is in order and does not call for any interference, the additional two floors i,e, bth and 7th floors specially approved by Director General, K.D.A. On 26-5-1988 are liable to be declared unlawful and violative of the public and private easements". The suit was, accordingly, decreed in favour of the plaintiffs to the extent that defendant No,1 shall not construct beyond the hollow plinth plus five storeys, and granted such declaration and injunction.
15. ' Mr. M. Naimur Rehman, learned counsel appearing for the appellants in H.C.A. No, 58 of 1991 raised the following contentions:-
(1) The case was not dealt with as a public interest litigation.
(2) No plan can be approved contrary to the provisions of section 6 of the Sindh Building Control Ordinance, 1979 and the Rules and Regulations framed by the Master Plan Environmental Control Department, K.DA.
(3) Merely the fact that a number of highrise buildings have come up in this area, it is no justification that on that basis other illegal highrise buildings will be allowed to be constructed.
(4) Defendant No, 1 did not personally lead the evidence themselves and therefore cannot lead any evidence in support of their case.
(5) The learned Single Judge has not appreciated the evidence on the record.
(6) The privacy of the residents of the area has not been taken into consideration.
(7) If the approved plans are contrary to regulations, it cannot be said that to have taken care of easement and nuisance to the residents of the area.
16. ' On the other hand, Mr. Liaquat Merchant, learned counsel appearing for defendant No, 1 submitted that the suit as framed is not maintainable.
17. ' Defendant No, 1 has raised the construction in accordance with the approved plan. The Ordinance, Regulations and Resolutions of Karachi Development Authority do not create any obligation in favour of the plaintiffs against defendant No, 1 in the matter of compliance with the Ordinance, Regulations and the Resolutions.
18. ' Mr. Ibrahim Dasti adopted arguments of Mr. Liaquat Merchant.
19. ' The learned counsel appearing for the parties rightly adopted the position that section 6 of the Ordinance is applicable to this case. The section runs thus: "6. Approval of plan.--(1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may be prescribed: Provided that in the case of a building the construction whereof has commenced before coming into force of this Ordinance, the Authority's approval of the plan and no objection certificate shall be obtained not later than six months after the enforcement of the Ordinance.
20. (Explanation.--The word 'consent' with all its variations used in this section and thereafter shall include 'reconstruct' with all its variations and, additions or alterations.)
(2) No building mentioned in subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupied, before the Authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed.
(3) No building mentioned in subsection (1) shall, except with the permission of the Authority, be used for the purpose other than that for which its plans were approved.
(4) Where the Authority is satisfied that the purpose for which the building is desired to be used, is consistent with the approved plans of the building, it may grant the permission under subsection
(3) on such conditions and on payment of such fees as it may fix."
21. ' In exercise of the powers conferred under Article 15 of the KDA Order 1957, the Karachi Development Authority framed the Zoing Regulatiosn in the year 1972. Regulation 4 provides special conditions for Scheme No, 5, as per Schedule E. Para. 5 of Schedule E provides that all 'G' type plots having areas of 2800 to 3400 square metres:
(a) Not more than 1/3rd of the plot area shall be allowed to be covered by the main building and not more than other 1/8th by ancillary structures.
(b) Height of the building shall not exceed 12.8 m or three storeys whichever is less. A maximum height of 15.25 m shall be allowed for Barsati and staircase tower, provided their area shall not exceed 1/30th of the plot area.
(c) Minimum width of open space that shall be left in the plot are as follows:- In the front side 6.00 m. In the rear 9.00 m.
22. ' Schedule 'A' states the general conditions for all KDA schemes, housing societies, displaced persons colonies and schemes, sponsored by the Ministry of Works. Clause (m) empowers the K.D.A. For relaxation in compulsory open space on technical grounds. The Governing Body of the K.D.A. Delegated its powers and functions to the officers of the Building Control Authority under Master Plan and Environmental Control Department and a committee was constituted. This was done by Resolution No, 676 dated 25-10-1981.
23. ' The Director, Master Plan and Environmental Control Department was delegated power of accepting approval of all building plans of special value such as commercial complexes, hotels, restaurants, cinemas. Para 12 states that approval of commercialization and change of land use shall be done by Director General/Governing Body, KDA except in those cases where approval as a policy has been granted shall be done by Controller of Buildings/Director, MP & EC. Para. 7 provides that sanction of additional floors shall be done in accordance with Town Planning Regulations, 1979. In case of any difficulty, the case may be put to Director General. It further provides that charges shall be realized as fixed by the Government from time to time.
24. ' The question for consideration is whether the aforesaid provisions of the Ordinance, Regulations and Delegations of Powers to the Building Control Authority and the Master Plan and Environmental Control Department and the Director General, K.D.A. Have been designed for protection of right and interest of adjoining owners or not.
25. ' The following two paragraphs from Halsbury's Laws of England (Fourth Edition) Volume 45 throw light on the question in Issue and may profitably be extracted as under:- "1282. Matters to be considered.--Whether or not an individual can bring a common law action in respect of a breach of a duty imposed by a statute depends upon whether the intention of the statute, considered as a whole and in the circumstances in which it was made and to which it relates, was to impose a duty enforceably by an aggrieved individual. No universal rule can be formulated which will answer the question whether in any given case an individual can sue. In answering the question it is, however, relevant to consider whether the statute was intended to protect a limited class of persons or the public as a whole, whether the damage suffered by the person seeking to sue was of the kind which the statute was intended to prevent, whether a special statutory remedy by way of penalty or otherwise is prescribed for breach of the statute, the nature of the obligation imposed, and the general purview and intendment of the statute.
26. 1283. Class of persons protected.--An individual may sue for a breach of statutory duty only if the statute imposes duty enforceable by a party aggrieved. The answer to the question whether statute imposes a duty so enforceable does not necessarily depend upon whether the statute was intended to protect a limited class of persons or the public as a whole. Nevertheless it is of importance to determine what was the intention of the statute in this respect, because, if the statute on its true construction is intended to protect a particular class, it is some indication that members of that class are intended to have right of action (for example in the case of statutes for the protection of factory workers, mine workers, building workers, merchant seamen, dock labourers and shipyard workers, or intended for the protection of the public when exposed to certain dangers). On the other hand, if the statute is intended to protect the public as a whole, it will not usually be construed as giving a right of action to individual members of a particular class. In any case in which a class of individuals has a common law right of action in respect of the breach of a duty imposed by a statute, a plaintiff to succeed must show that he is within the class of persons which is intended to be protected and to which the duty is therefore owed."
27. ' From the aforesaid paragraphs, broadly two important principles emerge, (1) though a statute may impose a public duty, it may at the same time impose a duty enforceable by an aggrieved individual in addition to the public duty; (2) the plaintiff to succeed must show that he is within the calss of persons which is intended to be protected by the statute.
28. ' There can be no controversy that the Ordinance and the Regulations impose a public duty. The question for consideration is whether they also impose in addition a duty enforceable by adjoining owners who are aggrieved by the construction of a neighbour in violation of the regulations and the plan.
29. ' We would now proceed to examine the various authorities cited at the Bar under Municipal Act and KDA Order, 1957. In Hirendra Nath Datta v. Corporation of Calcutta and others (AIR 1941 Calcutta 386), Edgley, J. Made the following observations: "....It must be assumed that in framing the statutory rules relating to the space to be left between buildings and their height, the Legislature had in view the general convenience of all residents in the municipal area in order to ensure proper ventilation and sanitation for the rate payers, and possibly adequate means of preventing the spread of fires from one building to another. In this view of the matter, it is impossible to say that the petitioner would not be affected by any breach of the existing rules, and,,in my view, he has a clear right to insist that these rules should be strictly observed by the Corporation in reference to any plans for the extension of the Tagre building."
30. ' The case was under the provisions of Calcutta Municipal Act (III of 1923) and the rules framed thereunder. Doubtless, the case was decided under section 45 of the Specific Relief Act, in the exercise of the ordinary civil jurisdiction of the Calcutta High Court. The proposition enunciated was, however, in relation to the object of the substantive law on the point.
31. ' Similar view was taken by Ameer Ali, J. In re Sm. Lakshmimoni Dassi (AIR 1941 Calcutta 391). It was observed that: "....The question is whether, where the provision is primarily in favour of the general public but in the nature of things the breach of it must injure the specific individual to quite a different degree, such a right can be assumed in the specific individual. In my opinion, though again depending on the facts of each case, yes. In this case, the position of the adjacent owner is stronger, for, in my opinion, No, 21 has been injured by the breach of conditions specially designed to prevent injury to adjacent owners. Rule 32 is especially directed to the relative, positions, vis-a-vis each other, of No, 21 and No,
13. It is the duty of the Corporation to see that Nos. 21 and 13 do not steal a march of each other. It is their duty, to the extent of the bye-laws, to see that one does not interfere with the health or amenities of the other.
32. ' The most obvious matter is that of attachment, but, as already indicated, attachment is only part of the general bye-law that space must be left. The Corporation, in certain cases, issue notices, to adjacent owners; whether in all cases, I do not know. In this case a notice was received by the owner of No, 21 on a printed form, and the proposed attachment is mentioned. I have no hesitation in holding that, as regards R. 32 the case rests not merely upon the fact that general duties have caused a special injury, but that provisions and restrictions especially designed for the benefit of the adjacent owner, have been disregarded so as to cause the adjacent owner that damage which it was intended to prevent."
33. ' In Nandalal Ladia and another v. Provudayal Tikriwalla and another (AIR 1952 Calcutta 74), a Division Bench consisting of Harries, C.J. And Das, J. Did not take any different view. Para. 6 of the judgment is as follows:- "6. Under sections 54 and 55, Specific Relief Act, the plaintiffs may pray for a perpetual or mandatory injunction to prevent the breach of an obligation existing in favour of the plaintiffs. In the present case, there was no obligation, contractual or otherwise, on the part of the plaintiffs, toward the defendant, which required that the defendant should construct on his own land in accordance with the Municipal rules and regulations. The plaintiffs, therefore, have no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that the proposed construction on the defendant land may be in breach of Municipal rules and bye-laws."
34. ' In Sm. Parul Bala Roy v. Srinibash Chowmal and others (AIR 1952 Calcutta 364), another Bench consisting of R.C. Mitter and Roxburgh, JJ., in unequivocal terms said that if the plaintiffs can bring their case within the ambit of para 3 of section 54 of the Specific Relief Act, then they would be entitled to ask for an injunction.
35. ' In Krishna Kali v. Babulal Shah and others (AIR 1965 Calcutta 148), An Ray, J. Also took similar view.
36. ' In Cawashah Bomanji Parakh v. Prafulla Nath Rudra (AIR 1941 Nagpur 364), their Lordships observed:- "As the appellants asked for an injunction restraining the building of the house, it was incumbent on them under section 56(k), Specific Relief Act, to show that they had some personal interest in the matter. The mere fact that Civil Station Sub-Committee acted beyond its power in granting the sanction to the building would not by itself be sufficient to entitle the plaintiffs to sue. In (1858) 121 RR 80), it was pointed out that the mere fact that there was a violation of an Act of Parliament could not give a right to an injunction unless it was proved that the violation of law had occasioned damage or was likely to produce damage or was likely to produce damage which could not otherwise be redressed. In 1 Born. 132, Green, J. In his observations at p. 142 made it clear that it is only when an act of any corporation or public company which is in excess of their powers, is calculated to be injurious to the rights of the property of an individual that he would have the right to protection of the Court by injunction. In 22 Born 646, an individual ratepayer was held entitled to an injunction against the company in respect of the application of its funds for the reason that the individual ratepayer had an interest in the funds. That the cause of action arises from an injury resulting to the plaintiff and not merely the capricious or perverse exercise of discretion by a corporation was pointed out also in 6 NLR 53 at p.
64. It is obvious therefore that the appellants case could succeed only on proof of some special damage or Injury occasioned to them by reason of the permission granted by the Civil Station Sub-Committee, assuming that it was contrary to the bye-laws and therefore ultra vires."
37. ' In Narayandas S. Kanuga v. Sarasvatibai D. Joshi and another (AIR 1968 Bombay 280) it was observed at page 282 as follows:- "Assuming that some such right is shown, the second element to be considered is whether irreparable injury or inconvenience may result to the plaintiffs if the same is refused. The appellants want to prevent the owner from developing the property merely by relying upon the Rules of the Corporation. Their shops exist as they are and they could carry on the business without any hindrance until the Small Causes Court decides the eviction suit. By this injunction; the appellants are only holding the owners to ransom. The trial Court did not even pause to consider the loss to the owner."
38. ' In principle, therefore, the Bombay decision did not take a different view. Plaintiff's case in that case was not accepted because as licencees or tenants they were considered as not having any right to be affected by the defendant's construction.
39. ' In Muhammad Munir v. Ahmed Ally Memo and 2 others (PLD 1982 Karachi 425), Mr. Saleem Akhtar, J. (now Judge Supreme Court) observed as follows:- "It may be pointed out that such building rules provide restrictions some of which are for the benefit of the neighbours and some are for the benefit of the owner himself. The neighbour can complain only in respect of breach of such rules which are for his benefit. The provision for construction on 1/4th area of the plot if applicable is only for the benefit of the occupants owners of the building that may be built on it and not for the benefits of the neighbours. The plaintiff therefore cannot make a grievance unless he establishes that the construction of flats will be a nuisance to him and will interfere with his rights of light, air and privacy."
40. ' In Moosa Bhunji (through Legal Heirs) v. Hashwani Sales and Services Limited and another (PLD 1982 Karachi 940), Mr. Saleem Akhtar, J. (now Judge Supreme Court) observed as follows:- "23. It has already been observed that only such interference, infringement of easements and grievance which amount to nuisance will entitle a plaintiff to claim a relief of injunction. In the present case, the plaintiffs have not fulfilled these tests."
41. ' In R.G. Sehwani Cooperative Housing Society Ltd. v. Haji Ahmad and 3 others (PLD 1983 Karachi 11), it was held at page 22 as under:- "It is, therefore, clear that with the passage of time the localities which were exclusively for residential purposes under the pressure of human need are being converted into commercial use with the consent and approval of K.M.C. And the relevant authorities. The entire complex of this area has completely undergone a phenominal change. Previously there were bungalows but they have been replaced by multi-storeyed buildings or such buildings in which the ground floor has been converted for commercial use. Taking into consideration these facts and to keep pace with the time and to meet the needs and requirements of the locality K.M.C. Has been granting permission to construct multi-storeyed buildings and commercialise the area."
42. ' On the same page it is further held as follows:- "Again K.D.A. Granted the permission to commercialise Plot No, 366 putting up certain conditions which were intended to protect the right of easement and right of privacy of the adjoining neighbours, and commercialization charges were also imposed and realised. In view of these facts it cannot be contended that K.M.C. Granted the permission with closed eyes to the conditions in the lease deed."
43. ' In Naseer Ahmed v. Hafiz Muhammad Ahmed and 17 others (1984 CLC 340) it was held at page 344 as follows:- "10. Besides the grounds accepted by the learned Judge, the learned counsel for the respondents/plaintiffs also urged two more grounds, one of infringement of rights of easements of light and air and another of violation of privacy by constructing an upper storey on the premises against the approved plan of the township. But the respondents/plaintiffs have to establish by evidence that they have acquired any rights of easements. Mere assertion of a supposed right is not sufficient for obtaining prohibitive order. As regards violation of privacy, the report by the Nazir indicates that only side walls have been raised by the appellant. It appears from the same report of the Nazir that there are upper-storeys in the 1st row and there is an upper storey of one of the respondents/plaintiffs even in the middle row where the appellant's plots are situated. The respondents/plaintiffs have to prove that their privacy is or will be violated."
44. Law is thus well-settled that mere violation of municipal rules or plan or a mere violation of Sindh Building Control Ordinance or Regulations or plan is not actionable per se unless an injury, real or apprehended, is established by the persons in whose interest and for whose protection the rules or regulations are framed. The Ordinance and the Regulations create an obligation in favour of the plaintiffs if they prove such injuries which would be determined according to the facts and circumstances of each case.
45. ' The first point raised by Mr. M. Naimur Rahman is that the case of the plaintiffs was not dealt with as public interest litigation.
46. ' Rule 8 of Order I of the Code of Civil Procedure provides that where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit on behalf of or for the benefit of all persons so interested. But the Court shall in such case give at the plaintiffs expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
47. The above rule deals with what are known as "representative suits". Under this rule, where there are numerous persons having the same interest in one suit, one or more of them, with the permission of the Court, sue or be sued or defend such suit, on behalf of all of them, the other persons, of course, to be notified, and can apply to be made a party to the suit. It constitutes an exception to the general principle that all persons interested in a suit shall be parties thereto. This rule is an enabling provision and does not compel any one to represent many if, by himself he has a right of suit.
48. ' For the applicability of the above rule, the essential conditions are: (i) the represented parties must be numerous; (ii) they must have the same interest in the suit; (iii) the permission of the Court must be obtained by an application to the Court; and (iv) on permission being given under Rule 8, notice must be given to the parties sought to be represented in the suit.
49. ' In Kumaravelu Chettiar and others v. T.P. Ramaswami Ayyar and others (AIR 1933 P.C. 183), their Lordships of the Privy Council laid down that the provisions of Order I, Rule 8 must be strictly complied with, otherwise the judgment in the action will bind only those persons whose names are actually on the record. It was observed: " the obtaining of the judicial permission and compliance with the succeeding orders as to notice, are, as it seems to their Lordships, quite clearly the conditions on which the further proceedings in the suit become binding on persons other than those actually parties thereto and their privies."
50. ' The above-cited decision was followed in the Tattersalls Club v. S.M. Suleman (PLD 1956 Sind 49), Karachi Municipal Corporation v. Ali Hussain (1982 CLC 93) and Muhammad Ashfaq and another v.
51. Sohail Hameed and 3 others (1986 CLC 2218).
52. A perusal of the plaint would show that the suit was not a representative suit for and on behalf of the numerous persons. The suit was c filed by the two plaintiffs after seeking permission from the Advocate-General. We are of the view that the above suit was only between the plaintiffs and defendants. In the facts and circumstances of the case, the case was rightly dealt with by the learned Single Judge.
53. ' The case of the plaintiffs, as set out in the plaint, is that the plaintiffs are very apprehensive of the host of problems that would arise by the construction of a multi-storeyed building which tantamount to public nuisance. The contents of para 16 of the plaint are already reproduced in earlier part of this judgment.
54. ' The relevant section of Ordinance, the Regulations and the delegation of the powers by the Governing Body have already been reproduced hereinabove. A perusal of these would show that the Master Plan and Environmental Control Department, Karachi Development Authority and the Director General, K.DA. Confer power for the purpose of carrying out the provisions of the K.DA.
55. Order and the Ordinance.
56. ' The intention of the Legislature, expressed in section 6 and Article 15 of the K.D.A. Order, 1957, was to confer upon the MI & CD and Director General a power to grant permission in all exceptional and proper cases for the erection of additional floors beyond the prescribed heights.
57. ' When the K.DA. Delegate its power to a responsible authority and officer to carry on the purposes of an Ordinance and K.DA. Order, it takes it for granted that they will endeavour to the best of their ability to do so and will not act adversely.
58. There is a distinction between a private and public nuisance. A private nuisance is a civil wrong but a public nuisance is a criminal offence, an act not warranted by law or an omission to discharge legal duty which act or omission, according to Stephen's Digest of Criminal Law "obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty's subjects".
59. ' There are two kinds of public nuisance, actual and constructive, or public nuisance in fact and public nuisances in law. What is meant by a constructive or public nuisance in law is that which is only wrong because it contravenes the provisions of an Act or Ordinance and the test in all those cases is whether if there were no Act or Ordinance the public nuisance complained of would exist at all.
60. Section 91 of the Code of Civil Procedure is restricted in terms to public nuisance in fact. Therefore, a constructive public nuisance can be no ground for a suit under that section, but the Advocate- General in Pakistan like the Attorney-General in England, has special power to take proceedings in respect of the latter class of nuisance. In all such cases his activity ought to be applied (a) either against the offending authority; (b) or where powers conferred upon the authority are inadequate for enforcing compliance with the provisions of the Act or Ordinance or Order, to supplement those provisions by his special remedies.
61. ' In Pakistan, as in England, no mandatory injunction would even be asked for, much less granted against a private individual for a mere nuisance in law, except where it has been created and persisted in defiance of authority, and such authority has no sufficient power to enforce compliance with the law.
62. ' Section 91 of the Code of Civil Procedure provides that in 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.
63. ' Now, if the action be continued to the terms of that section, those terms must, we think, be defined as they are defined in the Acts, and the only definition we obtained of public nuisance is through one General Clauses Act, that which is found in section 268 of the Pakistan Penal Code. That section says that person is guilty of a public nuisance who does any act or is guilty of a legal omission which causes injury, obstruction, damage or annoyance to persons who may have occasion to use any public right.
64. ' By invoking the definition of "injury" in section 44 of Pakistan Penal Code, the word "injury" denotes "any harm whatever illegally caused to any person, in body, mind; reputation or property", the plaintiffs seek to bring the erection of this highrise building in contravention of the terms of section 6 within the scope of a public nuisance. The argument briefly is that these provisions of Ordinance are intended to protect the safety and health of the public. Therefore, any infringement of them, however, seemingly innocuous, must necessarily cause a common injury. Else the Legislature would not have forbidden the act to be done.
65. ' It is contended by Mr. Liaquat Merchant that the remedy must be worked out under the provisions of Ordinance and no action lies in Civil Court.
66. On an examination of the Scheme of the Ordinance, we are satisfied that all questions about the liability for dismantling an unauthorised structure F shall be determined by the Authority or by the appellate authority as provided by section 16 of the Ordinance and the remedies normally associated with actions in civil Courts have been prescribed in the Ordinance in section 20A of the Ordinance.
67. ' It is not contended by Mr. M. Naimur Rehman that any provisions of the Ordinance have not been complied with or that the Authority did not act in conformity with fundamentals of judicial procedure in which case action in Civil Court would lie.
68. ' In the Ordinance, there is no provision for aggrieved person to move the Authority for redress of grievances. The Ordinance does not oust, either expressly or impliedly, jurisdiction of the Civil Court to take cognizance of suits in which relief sought is against the injury caused by such unauthorised construction. The Authority may by privy to the illegal construction or might not take steps to allow the construction of highrise building as the case is here. In either case, a third party suffering injury is not without remedy. A suit lies and Civil Court's jurisdiction is not ousted.
69. "Obligation" has been defined in section 3 of the Specific Relief Act, 1877 as including every duty enforceable by law. The obligation of the defendant No, 1 to individuals like the plaintiffs complaining of injury is not enforceable through the provisions of the Ordinance. A suit lies and Civil Court's jurisdiction is not ousted.
70. ' Even if the plaintiffs establish real or apprehended or anticipated public nuisance as pleaded in the plaint, the question for consideration is whether they are entitled to permanent injunction as prayed for in the suit.
71. ' Section 54 of the Specific Relief Act, 1877 prescribes as to when perpetual injunctions are to be granted. So far as relevant, the section runs thus:-- "54. Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.
72. ' When such obligation arises from contract the Court shall be guided by the rules and provisions contained in Chapter II of this Act.
73. ' Then the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases (namely):--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion;
(c) where the invasion is such that pecuniary compensation would not afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be got for the invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings."
74. ' Section 55 enacts that when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, which the Court is capable of enforcing, the Court may, in its discretion, grant an injunction to prevent the breach complained of and also to compel performance of the requisite acts.
75. ' Section 56 states that as to when an injunction is to be refused. An injunction cannot be granted: "56. An injunction cannot be granted --
(a) to stay a judicial proceedings pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent multiplicity of proceedings;
(b) to stay proceedings in a Court not subordinate to that from which the injunction is sought;
(c) to restrain persons from applying to any legislative body;
(d) to interfere with the public duties of any department of the Federal Government or any Provincial Government, or with the sovereign acts of a Foreign Government;
(e) to stay proceedings in any criminal matter;
(f) to prevent the breach of a contract the performance of which would not be specifically enforced;
(g) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(h) to prevent a continuing breach in which the applicant has acquiesced;
(i) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(j) when the conduct of the applicant or agents has been such as to disentitle him to the assistance of the Court;
(k) where the applicant has no personal interest in the matter."
76. It is well-settled law that these three sections must be read together. When so read, no injunction can be granted where there is no nuisance or interference with rights; or apprehension thereof.
77. ' In P.C.E. Paul and another v. W. Robson and others (AIR 1914 P.C. 45) which is the leading decision on the point, plaintiffs had brought an action for infringement of certain rights of light. It was conceded therein that they had acquired rights of light from the windows on the east side of their premises. The question for consideration was whether the plaintiffs were entitled to relief unless the obstruction complained of is a nuisance. Their Lordships noticed two conflicting views on the field.
78. One stream of authorities gave contenance to the view that by enjoyment of light for a period of 20 years, there could be acquired an indefeasible right to the enjoyment of a like amount of light in the future. The conflicting stream of authorities supported the other view that nothing constituted an infringement of rights of light which did not amount to an actionable nuisance, and that the amplitude of previous enjoyment was no measure of the rights acquired thereby. The opinion of Lord Sarvey on Cottescase, 1904 A.C. 179 (Colls v. Home and Colonial Stores) was accepted by the Judicial Committee as laying down the correct law. The opinion was to the effect:-- " The owner of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankin. The single question in these cases is still what it was in the days of Lord Hardwicke and Lord Eldon - Whether the obstruction complained of is a nuisance?"
79. ' Their Lordships also referred to the opinion of Lord Atkinson in Colls's case which said:- "It would appear to me that the case established the principle that there must be an invasion of the legal right of the owner of the dominant tenement sufficient to amount to a nuisance in order to give him a right of action and that as long as he receives through the windows of his dwelling- house, or in the case of a particular room in his dwelling-house, through the windows of that room, an amount of light which, to use the words of James, L.J., in Kelk v. Pearson ((1871) 6 Ch. 809 = 19 W.R. 665 - 24 L.T. 890) is 'sufficient according to the ordinary notions of mankind for the comfortable use and enjoyment of his dwelling-house, or of the room in it, as the case may be, no nuisance has as regards him been created, and no legal wrong has been inflicted upon him."
80. ' In Shaikh Ismail Sahib v. Nirchinda Venkatanarasimhul Iyah (AIR 1936 Madras 905), a passage was quoted from the case of Vanderpant v. Mayfair Hotel Co. Ltd. ((1930) 1 Ch. 138 = 99 L J Ch 84 = 142 LT 198 = 94 J P 23 = 27 L G R 752) where the law on the subject was stated thus: "Apart from any right which may have been acquired against him by contract, grant or prescription, every person is entitled as against his neighbour to the comfortable and healthful enjoyment of the premises occupied by him, and in deciding whether, in any particular case, his right has been interfered with and a nuisance thereby caused, it is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but accordingly to plain and sober and simple notions obtaining among english people."
81. ' In Cawashah Bomanji Parakh v. Praful a Nath Ruder (1941 Nagpur 364), it was held as follows:- "To determine whether an act which is complained of as being a nuisance is strictly so or not is to be Judge by the ordinary standards of persons residing in the neighbourhood and the criterion would be the ordinary physical comfort of human existence according to plain, sober and simple notions obtaining amongst people and not according to the elegant and dainty modes and habits of living as pointed out in (1930) 1 Ch 138 at p. 165; see also AIR 1936 Mad 905. It is not the standard of a petulant, cynical, hypersensitive or fastidicus person that would furnish a guide but that of a persons who expects to enjoy the ordinary comforts of a decent and healthy life in the local area where he resides. It is possible that some inconvenience or discomfort may be caused but it must be a substantial character to warrant legal interference."
82. It would thus be seen on a resume of the aforesaid authorities that even in a case where a person has acquired a right of easement to light and air, an action for damages or injunction is not maintainable unless the injury complained of is material.
83. ' The position would be no better in the case of the plaintiffs who have acquired no right of easement on account of the violation of the plan approved by the Authority and the Regulations.
84. Plaintiffs are, therefore, to establish not merely injury to their right to light, air, privacy or from erecting a multi- storeyed building which would create over-population a public nuisance and shattering of calm and peaceful atmosphere but material injury.
85. ' Mr. Liqauat Merchant vehemently argued that the suit is barred for misjoinder of K.D.A. As defendant. It is not disputed that the Karachi Development Authority is the lessor. Section 4 of the Ordinance provides that the Government may, by notification, appoint anybody corporate or council, or any department of such body corporate or council, or any Government department or functionary or an organization to act as authority for such area as may be specified in notification.
86. In exercise of the powers conferred by section 4 of the Ordinance, Karachi Development Authority was appointed to be the Authority for the purpose of the said Ordinance for Karachi Division.
87. ' In the instant case, the Karachi Development Authority has not been impleaded as a defendant.
88. Rule 9 of Order I of the Code of Civil Procedure provides that misjoinder or non-joinder by itself is not fatal. Though non-joinder is not fatal, yet where there is non-joinder of a necessary party i,e, a party who ought to have been joined and in whose absence an effective decree cannot be passed, the suit will ultimately fail unless such necessary parties are made parties to the suit. We are of the humble opinion that the suit is not barred for non-joinder of Karachi Development Authority.
89. ' The learned Single Judge rightly decided Issue No, 4 in the negative. It was submitted before the learned Single Judge and also before us that the K.D.A. Governing Body Resolution Nos. 220 and 676 were passed in 1980 and 1981 respectively which permitted construction of multi-storeyed buildings and commercialization in Clifton area. It was submitted that there were multi-storeyed buildings in various blocks of Clifton especially on Main Clifton Road commencing from Clifton Bridge onward up to the roundabout opposite to the plots of the plaintiffs and defendant No,
1. No objection was taken by the plaintiff or other residents of the area to stop the construction of such multi-storeyed buildings. Hence the plaintiffs suit was barred under the principles of estoppel, waiver and acquiescence.
90. ' The contention had not impressed the learned Single Judge and also us. The. Learned Single Judge has rightly observed that "no doubt some highrise buildings have been constructed as mentioned above, but these are not in so close proximity with the plaintiffs' plot as is the building of defendant No, 1".
91. ' The contention of Mr. Naimur Rchman is that defendant No, 1 did not personally lead the evidence themselves and therefore they cannot lead any evidence in support of their case. ' This contention is devoid of force for more than one reasons. Firstly, the burden is on the plaintiffs to prove that the construction of multi-storeyed building would create public nuisance. Secondly, the defendant No, 1 have examined witnesses in support of their case. The contention that the defendant No, 1 did not appear in witness-box and could not lead evidence in support of their case, is misconceived.
92. ' Mr. Naimur Rehman contended that the learned Single Judge has not appreciated the evidence on the record. This contention is devoid of force for more than one reason. The finding of the learned Single Judge, in our opinion, is correct and is supported by the oral evidence on record. The case of the plaintiffs, as set out in the plaint, is that they are very apprehensive of the host of problems that would arise by the construction of multi-storeyed building which tantamount to public nuisance. These host of problems inter alia include loss of privacy, over-population, traffic hazards, bad roads, congestion, smoky and polluted environment, creation of insanitary condition, break-down of essential services like electricity, gas, telephone and considerable reduction of water. The defendant No, 1 examined in support of its plea D.W. 1 Sardar Ikramullah from Southern Gas Company, D.W. 2 Abdul Shafiq, Assistant Executive Engineer in Clifton Division of K.D.A., D.W. 2 Muhammad Hafizullah, Deputy Controller of Planning, Planing Control Department of K.B.C.A.
93. (defendant No, 2), D.W. 4 Nandoo Ganesh, Sub-Engineer, KW & SB, D.W. 5 Abdul Majeed Khalti, Executive Engineer, K.E.S.C. In Landi Division. D.W. 6 Saleem Ahmad, Assistant Executive Engineer, K.E.S.C., D.W. 7 Syed Mehmood Qadri, Estate Agent, D.W. 8 Mansoor Raza Zaidi, an Engineer, President of Pollution Control Society of Sindh, Karachi, D.W. 9 Sharafat Ali, an employee of Karachi Water & Sewerage Board and D.W. 10 Syed Shahnawaz, Executive Engineer, Planning Department of West Zone, K.E.S.C. The evidence of these witnesses is fully corroborated that relevant facilities are available or will be made available to the multi-storeyed building of defendant No, 1 on the plot in question. We are, therefore, satisfied that there is sufficient and reliable evidence to support this conclusion. The learned Single Judge has rightly observed that the maintenance and widening of roads to meet the increase in population and consequent vehicular traffic is the responsibility of the Government and K.D.A. The learned Single Judge has rightly observed that pollution caused by smoke emitted from motor vehicles is nuisance problem all over the world and Karachi has no exception. However, Karachi being a sea-port and on account of the pressure of ozone, particularly near Clifton, the level of pollution of air is much less than in other places and strong winds in Karachi also help to clear the pollution.
94. ' Mr. Liaquat Merchant rightly urged that in considering the standard of comfort the character of the neighbourhood has to be taken into consideration. Lord. Halsbury made the following observations in Colls v. Home & Colonial Stores, Ltd. (1904) A.C. 179 at p. 185):-- "A dweller in terms cannot expect to have pure air, as free from smoke, smell and noise as if he lived in the country, and distant from other dwelling, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree and the question is in each case whether it amounts to a nuisance which will give a right of action."
95. In Sturges v. Bridgman ((1879) 11 Ch. D. 852) Thesiger, expressed his views at page 865 as under:- "....Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong."
96. ' These remarks have been so often quoted by Jurists and Judges that their importance cannot be minimized. It is aptly observed at page 346 of "Winfield Add Jolowiz on tort" (tenth Edition, 1975) that of cited dictum that "what would be a nuisance in Be grave Square would not necessarily be so in Bermondsey"' puts the matter concisely and needs only the addition that Belgrave Square may in course of time fall to the level of Bermondsey, "for that has happened with many other aristocratic quarters of London".
97. ' All this, however, only means that an arbitrary standard cannot be set up which is applicable to all localities. There is a local standard applicable in each particular district but though the local standard may be higher in some district than in others, the question in each case ultimately reduces itself to the fact of nuisance or no nuisance, having regard to all the surrounding circumstances.
98. In order that nuisance is an actionable tort, it is essential that there should exist (1) wrongful act; (2) damage or loss or inconvenience or annoyance caused to another. The latter alone can give no right to a legal action. Inconvenience or annoyance or discomfort to be considered must be more than mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material.
99. ' Applying these principles to the facts of the instant case, it will be seen that the defendant No, l's plot No, G-19 is several hundred feet away from the-- plaintiff's plot Nos. G-5 and G-10 and there exists a 240 feet wide road between the two plots in addition to service roads on both sides. The plaintiffs plots are situated in Block-9, while the defendant No, l's plot is in Block-5. It has come on record that there are other multi-storeyed buildings in Block-9 where the plaintiffs reside. The evidence tendered by the defendant No, 1 has been believed by the learned Single Judge; and so far as the question of credibility of the witnesses is concerned, this Court is not in a position to interfere. The learned Single Judge held that the plaintiffs have not proved or established the case of absolute nuisance. He thought that a case of substantial interference with the physical comfort of the plaintiffs was not made out.
100. ' Mr. M. Naimur Rehman contended that the privacy of the residents of the area has not been taken into consideration. This contention is void of force for more than one reason. Firstly, the suit was between the plaintiffs and the defendants. Secondly, the plaintiffs have not proved or established the case of absolute nuisance. Thirdly, the learned Single Judge thought that a case of substantial interference with the physical comfort of the residents of the house was not made out. It was also pointed out that a discomfort to be actionable must be substantial not only to persons with dainty or elegant modes or habits of living but to any person occupying the premises of the plaintiffs, irrespective of their position in life, age or state of health.
101. ' Mr. Liaquat Merchant raised preliminary objections that the appeal is barred by time and the same was not filed by the plaintiffs.
102. ' It is not in dispute that the judgment was delivered on 20-12-1990. The plaintiffs applied for certified copy of judgment on 22-12-1991, copy made ready on 9-3-1991 and appeal was presented on 27-3-1991. Decree was prepared on 21-2-1991. Application for certified copy of decree was made on 16-3-1991 and the copy was delivered on 16-3-1991. Article 151 of the Limitation Act provides that appeal against the judgment has to be filed within 20 days. It has come on record that application for certified copy of decree was filed after twenty-two days.
103. We are of the humble view that in case an application for obtaining a copy of the decree has already been made, and the decree is signed later on, the period which thus elapses, would be deemed to be the time requisite for the obtaining of the copy, because the signing of the decree is a matter which is not within the control of the applicant. By the mere act of applying for the copy, the applicant does whatever is within his power with the diligence and caution to obtain the benefit of section 12. But if he does not put in the application for a copy till after the decree has been signed, he cannot be said to have exercised due diligence and caution and in that case, period which elapses between the date of the judgment and the date of the signing of the decree cannot be considered to be the time requisite for obtaining the copies.
104. ' We, therefore, hold that the period between the date of judgment i,e, 20-12-1990 and date of signing the decree i,e, 21-2-1991 cannot be excluded as the application for obtaining a copy of decree was not made within limitation from the date of judgment.
105. ' The fact that the application for the copy of the decree was made on 16-3-1991 after the judgment, therefore, is of no avail to the appellants. In this view of the matter, the preliminary objections prevail and we hold that H.C.A. No, 58 of 1991 filed by Mst. Hameeda Khuhro and another, is beyond time.
106. ' Mr. Liaquat Merchant raised another objection about the maintainability of appeal on the ground that Mst. Hameeda Khuhro and Dr. Razia Akbari were not parties to the suit.
107. ' In a case reported in AIR 1953 Madras 485, it was pointed out by their Lordships of the High Court of Madras that under the practice consistently followed by the English Courts which is just and equitable practice and which is in no way inconsistent with the doctrine that a right of appeal can only be created by statute, a person who is not a party to a suit may prefer an appeal, if he is affected by the decree or order, to the appellate Court provided he obtains leave from the Court of appeal.
108. ' The statutory provisions that govern the presentation of appeals are sections 96, 100, Order XLI, Rule 1, C.P.C. And Order XLIII, Rule 1, C.P.C. And section 3(1) of the Law Reforms Ordinance, 1972.
109. ' In Tanveer Jamshed and another v. Raja Ghulam Haider (1986 CLC 456), one of us (Syed Haider All Pirzada, J.) has dealt this point. The relevant portion of the judgment reads at page 462 as under:- "It is manifest that none of these provisions expressly bars the filing of an appeal by an aggrieved person who was not actually a party to the proceedings. However, Mulla in his Commentary on the Civil Procedure Code (Volume 1, page 643-13th Pakistan Edition 1981) under the head 'who may appeal' remarks thus: `an appeal under this section may be preferred by any of the following persons:
(1) Any person to the suit adversely affected by the decree, or, if such party is dead, by his legal representative.
(2) Any transferee of the interest of such party, who so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit.
(3) Any auction-purchaser may appeal from an order in execution setting aside the sale on the ground of fraud. (No person unless he is a party to the suit, is entitled to appeal under this section.
110. But a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment and if it would be binding on him as res judicata, under Explanation 6 to section 11."
111. ' Again after reproducing a passage from the Annual Practice (1963 Edition) Col. 1, p. 168) and a passage contained in Halsbury's Laws of England (4th Edition Volume 37, page 520) para. 679, it was observed at page 463 as follows:- "The provisions as regards appeal in England are not mater: ally different from those contained in the Civil Procedure Code or letter patent or Sindh Rented Premises Ordinance. In neither of them is there any express mention of persons who could appeal. In my opinion the practice consistently followed by the English Courts is a just and equitable practice and is in no way inconsistent with the doctrine that a right of appeal can only be created by Statute. I agree with the learned Judges of the Bombay High Court that there is no reason why the practice should not be followed by Courts in Pakistan."
112. ' It is needless to say that the plaintiffs filed the suit under section 91 of the Civil Procedure Code after receiving permission from the Advocate-General Sindh. It is pertinent to note that the suit was not filed under Order I, Rule 8, C.P.C. It was held in a case reported in AIR 1933 P.C. 183 that he provisions of Order I, Rule 8 must be strictly complied with, otherwise the judgment in the action will bind only these persons whose names are actually on record. In the facts and circumstances-of the case, the above suit was only between the plaintiffs and the defendants. It is, in our opinion, clear the leave to a person to appeal from a decree or order in a proceeding to which he was not party should not be ordinarily granted unless he establishes that he has an interest which is affected by the decree from which he proposes to appeal. In our opinion, the question as to whether leave should or should not be granted, should depend upon the facts of each case and it is for the appellate Court to decide whether the appeal before it is a fit one for the grant of such leave. In the instant case, Mst. Hamida Khuhro and another filed the above appeal without seeking leave from this Court. Even oral request was not made to us. We are of the opinion that the appeal is not competent.
113. ' The Government of Sindh constituted a committee for preparation of draft regulations. The committee prepared the draft regulations. Chapter 1(3) provides that these shall come into force with effect from the date of publication in the Sindh Government Gazette. These Regulations have not been published in the Sindh Government Gazette. But these Regulations have been given legal effect vide section 21(3) of the Sindh Building Control (Amendment) Ordinance, 1982.
114. ' Even though these Regulations have not been notified but these Regulations were printed, circulated and are available and these have also been referred to in PLD 1982 Karachi 425, PLD 1982 Karachi 940, PLD 1983 Karachi 11, 1987 CLC 558, 1989 CLC 739 and 1990 CLC 448.
115. ' Section 16 of the Karachi Development Authority Order, 1957 provides that all rules and regulations made under this Order shall be published in the official Gazette and shall come into force upon such publication. Chapter 1, Regulation 1(3) of the said Regulations provides that these Building Regulations shall come into force with effect from the date of publication in the Sindh Government Gazette. Section 21 of the Ordinance empowers the Authority to make rules. Section 21-A empowers the Authority to frame Regulations not inconsistent with the provisions of the Ordinance and the rules made thereunder for carrying out the purposes of the Ordinance.
116. ' We shall now first consider the ground as to publication and the three questions fall to be decided in that behalf. Firstly is the publication as provided in section 16 of the K.D.A. Order mandatory or directory, for it is contended on behalf of the plaintiffs that publication under section 16 is merely directory; secondly, was the publication in this case strictly in accordance with the manner provided in section 21(3); and thirdly, if the publication was not strictly in accordance with the manner provided in section 16, the defect has been cured under section 21(3) of the Sindh Building Control Ordinance, 1979.
117. The question whether a particular provision of a statute which on the face of it appears mandatory as it uses the word "shall" as in the present case or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the Legislature in making the provisions, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other consideration which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.
118. ' It is advantageous at this stage to reproduce the observations of the Judicial Committee of the Privy Council in Montreal Street Railway Company v. Normandin (AIR 1917 P.C. 142) in that connection:- "The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statutes must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Ed. p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
119. ' The provisions with which we are concerned, namely section 21, it lays down that the Authority may frame Regulations not inconsistent with the provisions of the Ordinance and the rules made thereunder for carrying out the purposes of the Ordinance.
120. ' The draft regulations were prepared into two parts viz: Part-I Building Regulation and Part-II, Town Planning Regulations before the promulgation of the Sindh Building Control Ordinance, 1979, as such the draft Regulations are to be made in conformity with the Sindh Building Control Ordinance.
121. Rule 3 of the Regulations provides that every person who intends to carry out building works within the boundaries of the Karachi Division, shall comply with the requirements of these regulations.
122. ' The Governor of Sindh promulgated the Ordinance to provide to regulate the planning, construction, control and demolition of buildings and disposal of buildings and plots in the Province of Sindh. The preamble states that whereas it is expedient to regulate the planning, quality of construction and buildings control prices charged and publicity made for disposal of buildings and plots by builders and societies and demolition of dangerous and dilapidated buildings in the Province of Sindh. It is with that object the Sindh Building Control Ordinance was promulgated in 1979 and it is with the interpretation of some of the provisions of the Ordinance that we are concerned in these appeals.
123. ' It is not disputed that the Building Regulations and Town Planning Regulations were never published in the Gazette. It is not disputed that the Draft Regulations were printed and available from the office of the Authority. The question for consideration is whether in the absence of publication, the Karachi Building and Town Planning Regulations is a sufficient compliance with the requirement of section 16 of the KDA Order regulating publication in the Gazette of Sindh.
124. ' There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, whether law is viewed from a standpoint of the conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'unconscientious bad man', that is to say, it must be so made that it can be known. It is, therefore, necessary that subordinate legislation in order to take effect from the date of such publication or promulgation where the parent statute prescribes the mode of publication or promulgation that mode must be followed, where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication such a mode of publication may be sufficient, if reasonable.
125. ' In the present case, not only Section 16 of the K.D.A. Order has prescribed the mode of publication of the Karachi Building and Karachi Town Planning Regulations but Regulations themselves prescribe that these shall come into force with effect from the date of publication in the Sindh Government Gazette. The prescribed manner is what is prescribed by Regulation 3, that is, the official Gazette.
126. In the absence of any special law or custom, we are of the opinion that it would be against the principle of natural justice to permit the subjects of a State to be punished or penalised by laws of which they have no knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. The thought that a decision reached in the secret recesses of a Chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution or framing of a Regulation without anything more is abhorrent to civilized man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way.
127. ' Mr. Ibrahim Dasti invited our attention to the words "be deemed to be the regulations, so framed" in subsection (3) of section. 21 of the Ordinance. The words" be deemed to be the regulations, so framed" undoubtedly create a fiction whether they are construed in the deeming sense, treating the Regulations duly published in the Gazette or in a sense not having that effect but only indicating a fiction of a lesser scope just enabling the Karachi Building and Town Planning Regulations duly framed under the Ordinance.
128. When a statutory provision creates a fiction, it is first necessary to find out the purpose for which it was created in order to understand the scope and implication of the fiction. In re-Coal Economising and Gas Co. (1875) 1 Ch.D. 182) the following principle was laid:-- "Where the Legislature provides that something is to be deemed other than it is we must be careful to see within that bonds and for what purpose it is to be so deemed."
129. ' In Mehreen Zaibun Nisa and others v. Land Commissioner, Multan and others (PLD 1975 SC 397), the Hon'ble Supreme Court observed at page 433 as follows:- "When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist."
130. ' In that case, the Supreme Court quoted with approval the classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwellings Co. Ltd. v.
131. Finsbury Borough Council (1952 AC 109) at page 133: "The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
132. ' It cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction.
133. ' It appears to us that the words "be deemed to be regulations, so framed" in subsection (3) of section 21 have no more effect than indicating that the Regulations be framed under the Ordinance. The words are confined to the manner of framing of Regulations and do not suggest that they have any implication relating to publication in the Official Gazette.
134. ' Section 16 of the, K.D.A. Order confers power on the Authority to frame Regulations and provides that the same be published in the Gazette. Even the draft Regulations so framed also provide that these. Regulations came into force on the date of publication in the Government Gazette. As these Regulations have not been published in the Gazette, as such they never came into effect. Non- publication of the Regulations in the Official Gazette is not a curable defect. It appears that no reliance can be placed on these Regulations.
135. ' Mr. Liaquat Merchant lastly contended that the learned Single Judge erred in restraining defendant No,1 from constructing the building beyond 5 storeys on the ground that construction of 6th and 7th storeys would violate the public and private easement. We have been taken through the entire evidence adduced by the parties. It appears that the plaintiffs have not proved or established the case or absolute nuisance. The finding is contrary to the evidence on the record.
136. The same is set aside.
137. ' For the aforesaid reasons, H.CA. No, 55 of 1991 is allowed and the impugned portion from the judgment and decree is set aside as contrary to the evidence on the record. We have already held that the H.C.A. No, 58 of 1991 is not maintainable as it was not competent. The appeal is dismissed in the facts also. The cross-objections are also dismissed. In the facts and circumstances of the case, the parties are directed to bear their own costs.