Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Revision Application No. S – 109 of 2017

[Shafi Mohammad Khan v. Abdul Rehman & others]

Applicant : Shafi Mohammad Khan through

Mr. Tariq G. Mangi Advocate.

Respondent No.1 : Abdul Rehman in person.

Respondents 2 to 6: Nemo

Date of hearing : 24-08-2020

Date of order : 16-09-2020

O R D E R

Adnan Iqbal Chaudhry J. – The Applicant / Plaintiff filed F.C. Suit No. 28/2000 (new F.C. Suit No. 119/2005) against the Respondents/Defendants 1 to 3 (the Defendants 1 to 3). The subject matter of the suit was a pathway in the village of the said parties at a point where it dissected the properties of the said parties on opposite sides. Per the Plaintiff, the pathway was part of Survey No.1 of which he was owner; that the pathway was 22/25 feet wide and was in use by the villagers since time immemorial for their cattle, tractors and cars; that the Defendants 1 to 3 had encroached 11 feet of the pathway by constructing a gutter line alongside their property, and by raising a privacy wall outside their entrance which protruded onto the pathway; hence the suit praying inter alia for an injunction for removal of the encroachment on the pathway.

2. After recording evidence, which included an inspection report of the pathway, the learned Senior Civil Judge, Naushahro Feroze (trial court), found that the pathway was common passage used by the villagers and that eleven (11) feet of such pathway had been encroached by the Defendant No.1 by constructing a gutter-line and a privacy wall. Therefore, by judgment and decree dated 13-02-2012, the suit was decreed by directing the Defendant No.1 to demolish said encroachment.

3. However, Civil Appeal No. 05/2012 filed by the Defendants 1 to 3 was allowed and the suit was dismissed by the III^rd Additional District Judge, Naushahro Feroze (appellate court) by judgment and decree dated 06-10-2017 and 07-10-2017 respectively; hence this revision application. The learned appellate court held that the suit was against public nuisance, and since the consent of the Advocate General required by section 91 CPC had not been obtained, the suit was not maintainable.

4. Heard the learned counsel for the Applicant and the Respondent No. 1 who appeared in person.

5. While sub-section (1) of section 91 CPC provides that a suit against public nuisance may be instituted with the consent of the Advocate General, but sub-section (2) thereof stipulates that “Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.” Apparently, in dismissing the suit, the learned appellate court did not appreciate sub-section (2) of section 91 CPC.

6. In Naz Shaukat Khan v. Yasmin R. Minhas (1992 CLC 2540) and Clifton and Defense Traders Welfare Association v. President, Clifton Cantonment Board, Karachi (PLD 2003 Karachi 495), it was explained by this Court that an act of public nuisance may also be a private nuisance at the same time, in which case, a suit without the consent of the Advocate General required by section 91(1) CPC can be brought to the extent of the private injury suffered. That is so because a suit to redress private injury resulting from an act of public nuisance would be an independent cause of action envisaged under sub-section (2) of section 91 CPC. The distinction between a suit against public nuisance filed by an individual, and one filed with the consent of the Advocate General in terms of section 91(1) CPC, was explained by the Supreme Court in Islamuddin v. Ghulam Muhammad (PLD 2004 SC 633) by observing that an individual in whose favor a right exists independently can file a suit for declaration/injunction on the allegation of public nuisance; but where such suit is filed with the consent of the Advocate General, then institution of such suit would be deemed to be in a representative capacity on behalf of the people of the vicinity.

7. Therefore, the question that escaped the attention of the appellate court was whether the Plaintiff had a right of suit which existed independently of the provisions of section 91 CPC, viz., the right to injunct encroachment over a common village pathway.

8. In somewhat similar facts, it was held by a learned single Judge of the Lahore High Court in Abdullah v. Ahmad Khan (1988 CLC 1301) that where the case was of a village pathway and not of a public street within municipal limits, then section 91 CPC was no bar to a suit for injunction respecting the village pathway. After discussing case-law on the subject, it was further held that :

“The perusal of the cases noted above would show that the Courts in the Sub-Continent have consistently held that a person in the immediate neighborhood entitled to use a local public thoroughfare has a special cause of action irrespective of the fact that he has proved special damage or not. The principle is that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss. The inhabitants of the vicinity of the thoroughfare or residents of the village are entitled to seek removal of the obstruction without proving special damages.” (underlining supplied for emphasis)

Abdullah’s case was cited with approval by a learned Division Bench of the Lahore High Court in Lahore Cantonment Cooperative Housing Society Ltd. v. Builders and Developers (Pvt.) Ltd. (PLD 1999 Lahore 305), and was also relied upon by a learned single Judge of this Court in Muhammad Issa Abbasi v. Abdul Qadir (PLD 2013 Sindh 60). I too am inclined towards the same view. Thus, the suit for an injunction to remove encroachment from a village pathway used also by the Plaintiff himself apart from the other villagers, was an independent action not hit by section 91 CPC.

9. In view of the foregoing, the finding of the appellate court that the suit was hit by section 91 CPC, was erroneous and a failure to exercise jurisdiction vested in it by law; hence this revision application succeeds. The judgment and decree passed by the learned III^rd Additional District Judge, Naushahro Feroze in Civil Appeal No. 05/2012 is set-aside. Since the appellate court had not adverted to any of the other grounds urged before it, the appeal is remanded for decision afresh.

J U D G E