MUHAMMAD ASHRAF and 3 others vs MUHAMMAD LATIF

ORDER

' The brief facts out of which present revision petition arises are that the respondent-plaintiff filed a suit for permanent injunction against the petitioners-defendants in the Court of Civil Judge, Gujranwala. The contents of plaint reveal that the respondent-plaintiff purchased the land measuring 6-1/2 Marlas vide registered sale-deed, dated 18-7-1992, thereafter, he constructed his residential house over the disputed land, as the same area is for residential and he is living there with his family. The contents of plaint further reveal that the petitioners-defendants are influential persons, they intended to install the heavy machinery, which place is adjacent to the place of petitioners-defendants, therefore, they had started inducting the machinery and for that purpose, they are constructing the shed. The petitioners-defendants illegally wanted to install the heavy machinery and intend to start factory under the name and style "National Steel Industry" and by this way, the respondent-plaintiff shall suffer nuisance.

2. The learned counsel of the petitioners-defendants filed written statement controverting the allegations levelled in the plaint. The contents of written statement reveal that the plaintiff- respondent had constructed the factory and installed machinery about 30 years ago. The respondent-plaintiff had filed suit for permanent injunction against the petitioners-defendants before Civil Judge, Gujranwala, wherein the petitioners-defendants filed an application under Order VII Rule 11, C.P.C., read with Order XXIII, rule 1 and Order II, rule 2, C.P.C. Read with sections 54 and 55 of the Specific Relief Act before the learned trial Court. The learned trial Court accepted the application under Order VII, rule 11, C.P.C. And rejected the plaint vide order, dated 8-5-2004. The respondent-plaintiff being aggrieved filed an appeal before the First Appellate Court on 11-5-2004, which was accepted by the First Appellate Court vide impugned judgment and decree, dated 29- 6-2004, hence the present revision petition.

3. The learned counsel of the petitioners-defendants submits that the respondent-plaintiff filed a suit for permanent injunction on the ground that the respondent-plaintiff filed a suit for mandatory and permanent injunction earlier on the same cause of action, wherein the contents of suit reveal that the factory has already been installed the heavy machinery without obtaining any licence and secured NOC from the competent authority; whereas respondent-plaintiff has filed present suit for permanent injunction meaning thereby negating the first plea of mandatory injunction, therefore, the learned trial Court was justified to reject the plaint under Order VII, rule 11, C.P.C; whereas first Appellate Court erred in law to accept the appeal vide impugned judgment and decree, dated 29- 6-2004. He further submits that in case both the suits are put in juxta position, then pleas taken by the respondent-plaintiff in both the suits, are contradictory with each other. He further submits that the respondent-plaintiff had withdrawn his earlier suit with the permission to file fresh one as is evident from order, dated 3-1-2004 and this fact was not mentioned by the respondent-plaintiff in the second suit, therefore, the respondent-plaintiff has concealed the material facts in the contents of second suit, therefore, the respondent-plaintiff is not entitled any discretioriary relief on account of suppression of earlier suit filed by the respondent-plaintiff in the contents of second suit. He further submits that second suit filed by the respondent-plaintiff on the same cause of action, is not maintainable. He further submits that second suit filed by the respondent-plaintiff by deleting the material portion of earlier suit, tantamounts to amendment of the earlier suit without permission of the Court, which is not permissible in view of Order VI, rule 17, C.P.C. He further submits that the suit is not maintainable in view of Order VI, rule 17, Order II, rule 2 read with section 23 rule 1, C.P.C. He further submits that the respondent-plaintiff has filed second suit with unclean hands and this fact was not considered in its true. Perspective by the First Appellate, Court and second suit of the respondent-plaintiff is not maintainable on the well known principle of approbate and reprobate. He further submits that the impugned judgment and decree is not inconsonance with law laid down by the Superior Court. In support of his contention, he relied upon the following judgments:- "Muhammad Riaz v. Karachi Metropolitan Corporation" (2000 CLC 572), "Feroz Begum and 8 others v. Muhammad Khan" (2001) YLR 42), "Shahid Hussain Qureshi v. Manager, Small Business" (2001 YLR 454), "Fida Hussain versus Province of Punjab etc." (2001 CLC 239), "Four Square Enterprise, v.

Karachi Building Control Authority" (2001 MLD 1209), "Mst. Kundan Mai v. Muhammad Aslam, etc."

2002 YLR 2531, "Muhammad Roshan v. Sindh Private Limited (2004 YLR 59), Modern Terminal.

Operator v. City District Government" (2004 YLR 1161) and "Pervaiz Ahmad Khan v. Mst Ashraf Begum etc." (2004 CLC 572).

' He further submits that the respondent-plaintiff has concealed the material facts in the contents of second suit, therefore, the learned trial Court was justified to see the documents attached by the petitioners-defendants along with written statement and application under Order VII Rule 11, C.P.C.

In support of his contention, he relied upon the following judgments:-- "Muhammad Akhtar etc. v. Abdul Hadi etc." (1981 SCMR 878 and "Abdur Rehman v. Sherzaman and others" 2004 CLC 1340.

4. The learned counsel of the respondent-plaintiff submits that the respondent-plaintiff had withdrawn his earlier suit with permission to file fresh one as is evident from the order, dated 3-1- 2004, which is at page No,49 of this file. He further submits that the prayer clauses of both the suits are exactly similar; therefore, there is no in-consistency in both the suits and First Appellate Court was justified under the law to accept the appeal of the respondent-plaintiff, through impugned judgment and decree. He further submits that cause of action in the present case is recurring; therefore, judgments relied by the learned counsel of the petitioners-defendants are distinguished on facts and law. In support of his contention, he relied upon judgment in "M.D. Bazlur Rahman v.

Syed Ali Pramanik and others" (PLD 1967 Dacca 809). He further submits that ingredients of Order II, rule 2, C.P.C, are also not attracted in the present case. In support of his contention, he relied upon the following judgments:-- "Mst. Nazima Begum v. Mst. Hussina Begum etc." (1991 SCMR 177), "Jeewan v. Federation of Pakistan through Secretary" (1994 SCMR 826). "Mehdi v. Muhammad Ramzan and others" '(1994 MLD 686) and "Fazal-urRehman, v. Younis Ali Gillani and others" (1999 MLD 1565).

' He further submits that the respondent-plaintiff had withdrawn his earlier suit with permission to file fresh one, therefore, Order XXIII, rule 1, C.P.C., is not attracted. In support of his contention, he relied upon the following judgments:-- "Abdullah and others v. Bashiran Bibi and others" (PLD 1981 Lahore 336), "Ghulam Nabi etc. v.

Muhammad Yaqub and others" (PLD 1983 SC 344) and "Messrs Hindustan Sanitary and Drainages Workers v. Shabbir" (PLD 1992 Karachi 21).

' He further submits that on account of installation of factory and heavy machinery, the respondent-plaintiff has created nuisance for the petitioners-defendants and other persons of the locality; therefore, ingredients of section 91, C.P.C. Are attracted. In support of his contention, he relied upon "Mrs. Naz Shaukat Khan v. Mst. Yasmeen Minhas and others" (1992 CLC 2540).

5. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.

6. It is admitted fact that the respondent-plaintiff had filed earlier suit, which had been withdrawn by him, as is evident from order, dated 3-1-2004, which is at page No,49 of this file. Order, dated 3- 1-2004 reveals that the respondent-plaintiff had withdrawn his, suit with permission to file fresh one, therefore, First Appellate Court was justified to accept contention of the learned counsel of the plaintiff-respondent. It is pertinent to mention here that in case, prayers of both the suits are put in juxta position, then the learned trial Court was not justified to accept the application under Order VII, rule 11, C.P.C. Filed by the petitioners-defendants; whereas the First Appellate Court rejected the application with cogent reasons, which is in consonance with provisions of law. Coupled with facts that cause of action accrued to the respondent-plaintiff prima facie is recurring cause of action therefore, none of orders of C.P.C. Relied by the learned counsel of the petitioners-defendants i.e, Order' II, rule 2, Order VI, rule 17, Order XXIII, rule 1 are attracted in the present case. It is settled principle of law that generally Court has to examine the contents of plaint at the time of deciding the application under Order VII, rule, 11, C.P.C. Filed by the petitioners-defendants. In arriving to this conclusion, I am fortified by "Rafi-ud-Din. v. Karachi Metropolitan Corporation and others," 1994 MLD

874. It is also settled principle of law that at the time of rejection of plaint and averments made in the written statement and documents appended, are not warranted and installation of factory to this extent is involved and issues having not )een framed and the respondent-plaintiff was not given any opportunity to substantiate his case. It tantamounts that the respondent-plaintiff condemned unlawful manner. In arriving to this contention, I am fortified by "Alam Ali v. District Judge, Multan" (PLD 1983 Lahore 278) and "Mushtaq Ahmad, v. University of Punjab through Vice- Chancellor." (2001 CLC 1631). It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and fact of the case. The judgments relied by the learned counsel of the parties in the present case, are distinguished on facts and law, as per principle laid down by the Honourable Supreme Court in "Trustees of Port of Karachi v. Muhammad Saleem"

(1994 SCMR 2213). In view of the aforesaid circumstances, I do not find any infirmity or illegality in the impugned judgment of First Appellate Court, therefore, the same is upheld.

' In view of what has been discussed above, this revision petition has no merit and the same is dismissed with no order as to costs.