1. MUHAHMAD AKRAM, J.-This is an appeal by special leave from the judgment and decree dated 9th of December 1975 passed by a learned Judge of the Lahore High Court at Lahore inn Chambers, whereby he accepted the Regular Second Appeal filed by the respondent against the appellants herein.
2. The parties are residents of Kundian Town, Tehsil and District Mianwali. On the 28th of July 1965, Ghulam Muhammad respondent applied for .The construction of an open air cinema (called the Nishat Open Air Cinema) at the site in question situated in Kundian Town. Along with the application hp also submitted the necessary plan and appended therewith a note expressly stating that there was no school, mosque, hospital or any other Government building situated within a radius of 200 yards from the site of the proposed cinema. In pursuance thereof the District Magistrate Mianwali recommended the application of the respondent and forwarded the same to the Commissioner, Sargodha Division, Sargodha, who, on 25-12-1966 granted the "No-Objection Certificate" to the respondent for the construction of the cinema at proposed site in question.
3. Evidently the certificate was procured without any notice to the appellants. They however, complained to the District Magistrate against the grant of the certificate to the respondent. On this Malik Allah Ditta, A. S. I. Kundian Police Station was deputed to conduct an enquiry into the complaint. He after having made the measurements at the spot, submitted his reports to the effect that Masjid Muhammadia was situated at a distance of 140 yards from the proposed site of the cinema which was located in the heart of the abadi. The District Magistrate then deputed Ch. Abdur Rashid, Magistrate Section 30, Mianwali to hold a further enquiry into the allegations. He visited the spot and submitted his report on the 30th of October 1967 to the District Magistra-e- Mianwali. According to him also Masjid Muhammadia was situated at a distance of about 140 yards from the proposed cite of the cinema located in the heart of the abadi of the town. He, therefore, recommended that the running of the cinema at the site may be stopped and reference made to the Commissioner for withdrawing the "No-Objection Certificate". But it seems that afterwards the matter was discussed by the District Magistrate with Ch. Rashid Ahmad and be prevailed upon him to put up the note (Exh. P. 9) to the effect that the District Magistrate had desired that a vigilance be kept on the Management of the cinema to ensure that it did not violate the conditions for the grant of No-Objection Certificate and that licence and that in the event of any breach thereof, their licence might be revoked.
4. After recording the evidence produced by the parties, on the 20th of May 1970, the Administrative Civil Judge, Mianwali, decreed the suit of the plaintiffs-appellants against the defendant respondent and granted a mandatory injunction directing him to desist from operating the Nishat Open Air Cinema at the site. The decree was affirmed on appeal of the respondent which was dismissed by the District Judge on 27-10-1970. But it was reversed on his second appeal accepted by the High Court and thereby the suit of the plaintiff's-appellants against the defendant- respondent was dismissed on 9-12-1975. Hence this appeal by special leave before us by the aggrieved plaintiffs.
5. We have heard the learned counsel for the parties before us. The trial Court was satisfied from the evidence that the site plan submitted by the defendant along with his application for the grant of the "No-Objection Certificate" was incorrect inasmuch as be did not indicate therein that the mosque and the houses of the plaintiffs were situated within a radius of 20D yards from the site of the cinema and that the "No-Objection Certificate" was obtained by the defendant by misrepresentation and suppression of this fact. Moreover, the proper procedure laid down in the rules for the grant of the "No-Objection Certificate" was not followed. But in the opinion of the trial Court this solitary circumstance was not sufficient to invalidate the "No-Objection Certificate" thus granted to the defendant The Court, however, observed that the Masjid Muhammadia was situated at a distance of 140 yards from the cinema and according to the statement of Muhammad Siddiq plaintiff No. 1, their houses were situated at distance of 8/9 to 20 karams from the cinema building and that the working of the cinema resulted in disturbances to them and the other people in the locality as also to those saying their prayers in the nearby mosque. The obscene songs and open dialogues at the cinema created a lot of inconvenience to them. Haji Abdur Rehman, plaintiff No. 8 stated that the cinema was at a distance of 20 yards from his house and its working created lot of noises and resulted in inconvenience to them in their comfort and their, prayers in the mosque. In that connection Muhammad Musa (D. W. 4) admitted in his cross-examination that the house of the plaintiff was situated at a distance of 15/10 yards from the cinema building. Noor Muhammad D.
6. W. 6 also admitted that the houses of the plaintiffs were situated at a distance of 1C0/150 paces from the cinema building. The trial Court also observed that on the 9th of March 1966, the Union Council, Kundian had passed a resolution to the effect that the running of the cinema was adversely affecting the morals of the people and had requested the District Magistrate to stop its running. The Court repelled the plea advanced on behalf of the defendant to the effect that the mosque and the houses in question were constructed only after the open air cinema had been built by him at the site. In conclusion relying on the provisions contained in section 55 of the Specific Relief Act, the trial Court held that the running of the cinema constituted nuisance which made the lives of the residents less comfortable resulting in actionable annoyance to them and to those praying in the mosque. On this finding the trial Court decreed the suit of the plaintiffs against the defendant.
7. The judgment and decree was armed on appeal of the respondent which was dismissed by the District Judge. Mianwali on the 27th of October 1970. He concurred with the trial Court in holding that the houses of the plaintiffs were situated near to the cinema and that Masjid Muhammadia was also located within radius of 140 yards from it. In these circumstances in his opinion the running of the open air cinema was bound to disturb the family peace and tranquillity of the residents of the houses in the locality and had resulted in the disturbances to the Namazees offering their prayers in the nearby mosque. Tire plaintiffs were, therefore, legally entitled to seek the relief by permanent injunction from the civil Court. The Court further observed that the defendant had managed to obtain the "No-Objection Certificate" from the Commissioner, Sargodha Division, Sargodha by misrepresentation to the effect that there was no such mosque In existence at the site within a radius of 200 yards from the cinema in question. In spite of this in the opinion of the Court, it did not invalidate the "No-Objec--petition Certificate" which was issued by the Commissioner, Sargodha. Division, Sargodha with lawful authority. Nonetheless the District Judge concurred with the trial Court that the running of the cinema otherwise interfered with the performance of the religious duties of the plaintiffs in the mosque and also disturbed them in the enjoyment of their peaceful lives in their residential houses and as such constituted action4bie nuisance to the plaintiffs.
8. But a learned Judge of the Lahore High Court in Chambers reversed the decree in second appeal on the 9th of December 1975 and dismi3sed the suit of the plaintiffs. He observed that undoubtedly the respondent had in his application for the grant of the "No-Objection Certificate" incorrectly stated that there was no mosque situated within a radius of 200 yards from the site of the proposed cinema but in his opinion this circumstance by itself was not sufficient to invalidate the certificate ultimately issued by the competent authority namely the Commissioner Sargodha Division, Sergodha. In that connection he observed that rule 5 (1) or' the West Pakistan Cinemato-- graph Rules, 19'62 framed under section 8 of the Ccnem44tograph Act, 1918 did not debar the Commissioner from issuing the "No-Objection Certificate" even if a mosque was situated within a radius of 200 yards from the proposed site. He further observed that after the local enquiries had been made by Ch. Rashid Ahmad Magistrate and Malik Allah Ditta, A. S. I. The District Magistrate and the Commissioner became cognisant and aware of the existence of a mosque at the site at a distance of 140 yards from the cinema, they did not decide to annul the certificate or withdraw the licence issued to the respondent. On the contrary the licence was annually renewed in his favour by the District Magistrate. The High Court further observed that the learned District Judge as the first appellate Court had failed to discuss the evidence on the record which was wholly unsatisfactory in nature to warrant the conclusion that the running of the cinema interfered with the peaceful living of the plaintiffs in their houses and the saying of the prayers in the mosque in question and constituted actionable wrong. The resolutions passed by the Union Council and the Tehsil Council were of no avail in establishing the allegation of the nuisance made by the plaintiffs.
9. However, in accepting the appeal and dismissing the suit of the plaintiffs, the Court issued a direction against the respondent to the effect that ho shall give an undertaking that he would not install any loudspeaker outside the projection hall. This, in the opinion of the Court, should be sufficient to remove the inconvenience if any caused to the appellants by the running of the cinema.
10. We find that the respondent had applied on the 28th of July 1965 for the permission to construct the open air cinema in question in Kundian Town and that the "No-Objection Certificate" was granted to him by the Commissioner on the 25th of December 1966. At the relevant time there was no rule corresponding to rule 5 of the West Pakistan Cinematograph Rules, 1962 framed under section 8 of the Cinematograph Act, 1918 which came into force with effect from 20th of July 1962.
11. However, before it as observed in the District Magistrate, Lahore and another v. Faqir Sayyed Fayyazuddin and another (PLD 196580371) there were certain departmental instructions only regulating the construction of cinemas in the Province. In this view of the matter, It cannot be held that in granting the "No-Objection Certificate" to the respondent the Commissioner had acted in contravention of any statutory rules having the force of law. Moreover, in the absence of any such rules it could not be held that the appellants had any legal right vesting in them to object to the grant of a "No-Objection Certificate", provided that its running did not tantamount to any actionable nuisance to them. It is no doubt to be deplored that the respondent had procured the "No-Objection Certificate" in contravention of the departments` instructions prevailing at the time by fraudulent means by wilful suppression of the material fact that there was no masque situated within a radius of 200 yards from the site of the proposed cinema in dispute. But it was a matter between the respondent and the Commissioner who had the option to cancel the "No-Objection Certificate" procured from him by suppression of facts and fraud thus practised on him.
12. Nevertheless this circumstance alone did not clothe the appellants with any locus standi to file the suit against the respondent on this ground. The High Court has already held that the plaintiffs- appellants have failed to establish that the running of the cinema Tanta mounted to any actionable nuisance in the enjoyment of their own properties or resulted in any material interference with their prayers in the mosque in question, under the condition imposed upon him.
13. For the foregoing reasons we find no force in this appeal which is dismissed. There shall be no order as to costs in the circumstances of the case.