Mst, KARIM BIBI and others vs ZUBAIR and others

' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment of the High Court dated 25-10-1989.

2. The facts of the case are that the appellants filed a suit for permanent injunction on the averments that they were owners of the house. The respondent No,2 adjacent to the house of the appellants had installed a factory comprising furnace and rolling machines. Due to the running of the furnace and rolling machines, there was a vibration and dust which has interfered with the peaceful living of the plaintiffs. The respondents gave an assurance that they would remove the machines to industrial area but then went back of the assurance and they planned for construction of furnace and installation of heavy rolling machines. The suit was contested by the respondents. The learned trial Court framed various issues. Alongwith the suit, the appellants filed an application for grant of temporary injunction restraining the respondents from installing the new machinery. The trial Court granted the injunction. The respondents preferred an appeal against the order of the trial Court granting the temporary injunction. The appeal was accepted by the Additional District Judge and the stay granted by the trial Court was vacated. The trial Court appointed a local commissioner to carry out the investigation and report. The local commissioner submitted his report. The High Court initially granted a stay in favour of the appellants but subsequently the stay was vacated. The appellants produced evidence. The trial Court also recorded the evidence of three witnesses of the respondents. The appellants on 24-6-1987 moved an application under Order 6, Rule 17 for the amendment of the plaint on the ground that when the suit was instituted the defendants had not installed the rolling machines. Since the injunction was not granted, the defendants had succeeded in installation of the machines, therefore, the only effective prayer would be that the defendants be restrained from running the said machinery and furnace installed in that premises. The learned trial Judge on 25-7-1987 dismissed the application moved by the appellants and also rejected the plaint under Order 7, rule 11, C.P.C. It was observed that "the amendment was based on mala fides and if the same was allowed it would result in the change of the nature of the suit". The appellants challenged this order before the District Court. An Additional District Judge accepted the appeal on 2-4-1989 and the case was remanded to the trial Court for proceeding from the stage the suit was dismissed and to decide the same on merits within four months.

3. The respondents challenged the aforesaid order of the Additional District Judge before the High Court in a revision petition which was accepted by the impugned judgment. The reasons which weighed with the learned High Court in accepting the petition were that "the grievance against the installation of the machinery was consciously abandoned by the respondents especially in their application under Order VI, rule 17, C.P.C. The machinery had been working since 1974 whereas the suit was filed in 1978. Thus if the installation of the machinery became the matter of fait accompli on account of the petitioners' acceptance or acquiescence therefore, they could not possibly be allowed to object to its operation... Abandoning of an objection against the installation indeed amounted to abandoning of objection to the operation of the machinery".

4. It may be pointed out here that the appellants had withdrawn their application filed under Order 6, rule 17, C.P.C. On 11-5-1989.

5. We have heard the learned counsel for the parties. The learned counsel for the appellants submitted that the appellants had abandoned only one relief. The other relief was still available to the appellants and the suit could not be dismissed on the technical ground. He has also referred to the two reports of the local commissioners. The plaint could only be rejected under Order 7, rule 11, C.P.C. In the following cases:--

(a) Where it does not disclose a cause of action;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, (ails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being require I by the court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law."

6. None of the grounds exists in the present case so as to non-suit the plaintiffs. The plaintiffs' evidence 'has already been recorded. The defendants have also produced three witnesses. The parties were seriously at issue and the Court could decide the dispute after referring to the evidence. In the application moved under Order 6, rule 17, C.P.C. The appellants had abandoned only one relief. They could agitate other reliefs claimed by them in the suit. In fact, this application was not necessitated in the circumstances of the case and the appellants had subsequently withdrawn this application. Even after going through the application moved by the appellants under Order 6, rule 17, C.P.C. It does not show that no cause of action subsisted in favour of the appellants.

7. The appeal is allowed, the judgments of the learned Civil Judge dated 25-7-1987 and the High Court dated 25-10-1989 are set aside. The trial Court should proceed with the case in accordance with the direction made by the Additional District Judge in his order dated 2-4-1989. There will be no order as to costs.