The brief facts out of which the present revision petition arises are that respondent No. l got premises to establish school under the name and style Lahore Lycium School in Multan at 46- Qasim Road, Multan, but the Military Estate Officer prevented the petitioner to open the school in the said premises. Therefore, the respondent No. l obtained the present premises in dispute on rent vide lease agreement, dated 10-9-1997 from respondent No.2 for the purpose to establish and open school. The petitioners came to know about the said school on 11-9-1997 and filed a suit for permanent injunction in representative capacity on 13-9-1997 alongwith an application under Order 39, Rules 1 and 2, C.P.C. For interim injunction. The learned trial Court granted the status quo, but after hearing the arguments of the respondents dismissed the application vide order, dated 25-9-1997. The petitioners being aggrieved filed an appeal before the District Judge, which was entrusted to the Additional District Judge, who dismissed the same vide order, dated 15-10-1997, hence the present revision petition.
2. The learned counsel for the petitioners contended that both the Courts below decided the application in violation of the law, laid down by the superior Courts in the following judgments:---
(1) PLD 1996 Lahore 442, (2) 1992 CLC 2540, (3) PLD 1993 Kar. 631,
(4) 1996 SCMR 416, (5) PLD 1966 Lahore 566.
The contention of the-learned counsel needs consideration. Admit. Notice.
The learned counsel for the respondents accepted the notice and agreed to argue the main case hence the same is disposed of as admitted case. The learned counsel for 'the petitioners further contended that by allowing the respondents to open school in the said premises created nuisance for the petitioners at the time of construction of their houses and he relied upon PLD 1994 SC 693.
The learned counsel for the petitioners further argued that on the basis of the strength of the master plan that the area is only reserved for residential purposes, but both the Courts below did not advert to this aspect of the case. The petitioners have an arguable case before the Courts below and relied upon PLD 1967 Lahore 218. He further contended that once the master plan is sanctioned, then even the functionaries could not change the same by virtue of section 79 of the Punjab Local Government Ordinance, 1979. He further contended that to allow the respondents to open the school created continuous nuisance for the petitioners and relied upon 1989 CLC 2178. He further contended that the respondents admitted before the first Appellate Court that the building is only sufficient for 200 students but even then it is permanent nuisance for the petitioners.
3. The learned counsel for the respondents contended that respondents have bona fidely submitted two applications before the Courts below with certain conditions for amicable settlement of the case, which were not accepted by the petitioners mala fidely. He further contended that the contention of the learned counsel for the petitioners is not based on reality, as there are three commercial institutions which are presently functioning in the said locality namely Daffodil Beauty Parlour, PTC Office and Ahsan Tuition Centre. He further contended that the suit was not maintainable in the present form. The petitioners had to file suit for declaration with consequential relief in the shape of permanent injunction. He further categorized the case into two categories, which are as follows:---
(1) Encroachment on roads.
(2) Nuisance on account of noise of the children.
He further stated that encroachment on roads amounts to a public nuisance, therefore, suit is not maintainable without fulfilling the requirements under section 91 of the C.P.C. And relied upon PLD 1969 Lahore 95. He further contended that the petitioners approached the Court with unclean hands and concealed the material facts from the Court, as the petitioners failed to point out a word about the abovementioned three commercial institutions, functioning in the said residential locality, therefore, petitioners are not entitled to any discretionary relief and relied upon 1986 CLC 2923, PLD 1954 Lahore 575 and PLD 1970 Lahore 412. He further contended that suit is not maintainable in violation of mandatory provision of Order 1, Rule 8, C.P.C. And relied upon 1982 CLC
93. He further contended that the application for interim relief under Order 39, Rules 1 and 2, C.P.C. Is not maintainable before the Court, as the petitioners failed to attach an affidavit alongwith the said application, which is mandatory requirement under the provision of C.P.C. And he relied upon PLD 1995 Lahore 98, and that the petitioners failed to bring on record any cogent evidence to show that the locality is only reserved for residential purposes. He distinguished the case cited by the learned counsel for the petitioners reported as PLD 1995 Quetta 50 on the ground that there was sufficient and cogent evidence produced before the Court on the basis of the lease agreement and the rules in which it was specifically mentioned that the residential area could not be changed into commercial, but in the present case, the petitioners failed to bring on record any such evidence, therefore, the judgment is not attracted in the given case. He further submitted that at present, the respondents have employed all the staff and admitted 20 students but the petitioners failed to implead them as respondents, therefore, suit is not maintainable and he relied upon 1983 CLC 1280. He further contended that the Honourable Supreme Court of Pakistan has laid down principle to grant or refuse the interim relief, in PLD 1970 SC 139, which are as follows:---
(1) Prima facie case.
(2) Irreparable loss.
(3) Irreparable injuries.
The learned counsel for the respondents further contended that the case of the petitioners is not covered under any of the abovementioned principles therefore, petitioners are not entitled to any discretionary relief. He further contended that both the Courts below concurrently exercised discretion in favour of the respondents on the basis of the cogent reasons and this Court has no jurisdiction to disturb the discretion, exercised by both the Courts below while exercising jurisdiction under section 115, C.P.C.
4. The learned counsel for the petitioners in rebuttal contended that notice was issued by the Trial Court to consider the case in representative capacity on 6-11-1997 and finally the trial Court leas passed the order in this respect on 6-1-1998 and the Court has to take into consideration subsequent events. He further contended that act of the Court could not prejudice any party. He further contended that written statement filed by respondent No.3 and supported the cause of respondent No.2 being the uncle of respondent No.2. He further contended that respondents in their written statement in para. 5 only denied the contents of para. 5 and did not take stand that the school is functioning in the disputed premises. He further contended that section 91 and Order 1, Rule 8, C.P.C. Are holding the special fields enabling each other and not destruction of each other.
He further contended that suit is maintainable by virtue of section 91(2) of C.P.C., as the petitioners are individually also affected, in case the respondents are allowed to open the school in the said premises.
5. I have given my anxious consideration to the contention of the learned counsel for the parties and gone through the record. I intend to decide the preliminary objections raised by the learned counsel for the respondents that the suit is not maintainable in violation of Order 1, Rule 8, C.P.C. The learned counsel for the petitioners states that trial Court has passed order on 6-1-1998 to entertain suit in representative capacity, the Court can take notice of the subsequent events, as held in judgment (1990 CLC 1069). Even otherwise, the learned Appellate Court also rejected the preliminary objection, therefore, the objection of the respondents' counsel has no force. Similarly, the learned counsel for the respondents raised preliminary objection that the suit is not maintainable without fulfilling the pre-condition as required under section 91, C. P. C.
It is pertinent to mention here that the learned 1st Appellate Court rejected the preliminary objection with cogent reason. Even otherwise the nuisance is of such a nature that would infringe the personal rights of the A petitioners, therefore, the objection of the learned counsel for the respondents has no force. I am fortified by the judgment of Naz Shaukat Khan's case 1992 CLC 2540 and the relevant observation is reproduced hereunder: "The objection, therefore, that nuisance in the instant case, such as it may be, is a public nuisance alone requiring written consent of the Advocate-General for the institution of this suit loses force because the plaintiffs have shown specific grievances carrying peculiar stress in the neighbourhood as distinguished from the general impact on the entire locality. The objection as to maintainability of the suit on account of the purported. Bar under section 91 of the Code of Civil Procedure, therefore, may not be valid."
The view taken in Naz Shaukat Khan's case was considered and approved in Lahore Grammar School PLD 1996 Lah. 442 and the relevant observation is as follows:--.-------- "11. The question as to what is private nuisance and public nuisance as also the effect thereof has been examined in detail in Naz Shaukat Khan's case and it has been found that the opening and establishing of a school in the residential area does fall in the definition of private nuisance and persons living in the immediate neighbourhood or even in the vicinity thereof are entitled to enforce their right of quiet enjoyment of their properties by seeking to restrain somebody or anybody living in the same area from disturbing the peace and tranquility thereof by opening and establishing a school in the residential quarters. "
Mr. Justice G.H. Malik also examined this point in Ardeshir Cowasjee's case PLD 1993 Kar. 631 and observed that: The grievance of the plaintiffs in this case is in effect, that they having their houses in close proximity to the proposed school it is their enjoyment of their own respective houses that will be affected directly and substantially. The case set up by the plaintiff is thus, one of private nuisance and the provisions of section 91, C.P.C. Are not attracted. The Honourable Supreme Court of Pakistan in Sahibzada Muhammad Umar Baig's case PLD 1971 SC 13 has laid down following guideline for grant or rejection of temporary injunction:---
(i) Prima facie good case;
(ii) Balance of convenience lying in favour of the grant of injunction; and (i.e) Plaintiff would suffer irreparable loss if the injunction is refused It is better and appropriate to find out the meaning of word prima facie:--- "According to Legal Terms and Phrases written by M. Ilyas KhanPrima facie means at first sight, on the face of a thing, apparently, presumably true unless rebutted by some convincing evidence.
A case in which some evidence is present in support of the charge or allegation made in it and which if unrebutted will be sufficient proof the charge".
The Honourable Karachi High Court has defined the word prima facie in PLD 1962 Kar. 59 as follows:-- "In deciding the question whether a temporary injunction should be issued or not the Court has only to determine whether there is a serious question to be tried in the suit and not how the questions ought to be decided at the trial?"
"Prima facie case does not mean a case proved to the hilt, but a case which can be said to be established if the evidence led in support of the same were believed."
Similarly in G. Hussain's case 1990 PCr.LJ 577 (Lah.) the Court has observed as follows:--- "Prima facie case which has not been defined anywhere means a case where charge against accused is not groundless and there is a ground to proceed against him."
"Prima facie case would not imply an indefeasible case; but would signify only an arguable case, involving serious or substantial questions of fact and law, which on proceeding to trial was capable of and had a possibility of success. "
"The term prima facie case is not specifically defined in the Code of Civil Procedure. The judge- made law or the consensus is that in order to satisfy about the existence of prima facie case, the pleadings must contain facts constituting the existence of right of the plaintiff and its infringement at the hands of the opposite-party. For, unless the plaintiff shows existence of some of his right and its infringement, it shall not be deemed that he has any prima facie case. "
Mr. Justice Amir Alam Khan has considered similar proposition in Mst. Hameed Begum's case PLD 1996 Lah. 442 and laid down following principle:--- "The importance of the three ingredients as also the manner in which they are to be applied while issuing an injunction has been lime-lighted and explained in the case reported as Syed Muhammad Khurshid Abbas Gardezi and 5 others v. Province of Punjab and 2 others 1988 CLC 362.
The question of the abovesaid judgment can be found at page 366 which is instructive on the subject, therefore, the same is being 8 reproduced hereunder:--- ---No finding of determinative nature is required to be made on controverted question of law and fact raised in the suit while considering application for grant of injunction. What could possibly be done at such an initial stage is to keep in the background the facts alleged and disputed in the case and to refer to broad principles of law likely to be applied in resolving them with a view to find out whether there exists prima facie case; whether balance of convenience was in favour of plaintiff and whether on refusal of interim order an irreparable injury would result to him."
Now I intend to consider the present case to find out whether the petitioners have a prima facie case or not? The petitioners/plaintiffs' case is that the area in question is purely residential. The case is sought to be supported by various documents filed with the plaint specially master plan.
The petitioners/plaintiffs further alleged in contents of the plaint that the plots were sold to them with the undertaking that it is purely reserved for residential purpose and cannot be converted into the commercial area. The respondents/defendants controverted the contents of the plaint and took a stand that the area was not reserved purely for residential purpose and there are three buildings which are used for commercial purpose as mentioned above. The respondents/defendants did not bring on record any document to controvert the master plan referred by the petitioners. The respondents/defendants advanced the argument that the area is no longer residential because the Daffodil Beauty Parlour, P.T.C. Office and Ihsan Tuition Centre are located in the area, therefore, the basic residential character of the area has been changed into non-residential. It is pertinent to mention here that the inhabitants of the house also resided in the same house and one room is reserved for the Daffodil Beauty Parlour and P.T.C. Office is used for the residential purpose and Tuition Centre not like school or college. Only few students are taught by the resident of the house. These three centres do not change the basic residential character of the area. The respondents/defendants did not point out any other house in the said area which is used for commercial purpose, therefore, prima facie, it seems that the area is of a residential character. It is admitted fact that the petitioners/plaintiffs did not bring on record the lease deeds, rules and regulations to show that residential house cannot be converted into commercial but one thing is on record in the nature of master plan which shows that the whole area is of a residential one. The respondents/defendants have failed to bring on record any document to show that the houses in the area are not used for residential purpose. Keeping in view all these facts in juxtaposition, it would reveal that the area is of a residential nature/category. In such situation, the case is fully covered under the principle laid down in the following cases:---- Naz Shaukat Khan's case 1992 CLC 2540; PLD 1993 Kar. 631 and Lahore Grammar's case PLD 1996 Lah. 442.
But both the Courts below did not consider this aspect of the case. Such commercial conversion in residential locality is considered to be a nuisance affecting peace of entire locality. In these circumstances, the ingredients of nuisance as could be contemplated at the relevant time or mentioned in the plaint and since the better particular can be asked for at the trial or even the plaint can be abandoned to further explain the ingredients of nuisance, thus, the arguments that the contents in the plaint neither disclose a nuisance nor constitute one, cannot gain magnitude so as to disentitle the petitioners/plaintiffs from the temporary relief as prayed for. The contents of the plaint reveal that the, petitioners/plaintiffs have a prima facie case. The word nuisance has been examined in all the abovementioned cases and especially in Naz Shaukat Khan's case as observed as follows:--- "It has been found that the opening and establishing of a school in the residential area does fall in the definition of private nuisance of the persons living in the immediate neighbourhood or even in the vicinity thereof, which entitle to enforce their right of quiet enjoyment of their properties by seeking to restrain somebody or anybody living in the same area from disturbing the peace and tranquillity thereof by opening and establishing school in the residential quarters. "
"Court may, in a fit case, grant interim injunction, even if the case does not fall within the four corners of the well-settled principles for grant of injunctions under Order XXXIX, Rules 1 and 2, if the facts. Of the case so demand to foster the cause of justice. "
It is pertinent to mention here that respondents/defendants have still not established and run the school in the disputed premises.
6. In view of what has been discussed above, this revision petition is accepted and the orders/judgments of both the Courts below are hereby set aside. Respondents are restrained from opening and running Lahore Lycium School within the premises of Al-Farhat Gulistan-e-Zahra Colony, Multan. The trial Court is directed to decide the case positively within four months after receiving the order of this Court. There is no order as to costs. Since the case was argued at length and various questions of fact and law were raised, therefore, the same had to be resolved but it is clarified for all the concerned that the order rendered in the case is not to be considered as expression of any opinion on the merits of the case which shall be decided in accordance with law without being influenced in any manner by the above observations of this order. Meaning thereby, the trial Court has to decide the case without influence by the said observations.