AB AHAD RESHI Vs. SANNA ULLAH HURRAH

JUDGEMENT

(1.) THIS revision arises out of a suit for permanent injunction on the file of the Munsiff, Sumbal, Sonawari. The plaintiffs case is that defendant has planned to set up a band saw and the rice husking mill in survey No: 786 Min and even started constructing a shed for this purpose. The plaintiffs grievance is that the running of the mill would materially interfere with the enjoyment of his nearby residential house so much that the inmates would be deprived of their physical comfort and even the children may not be able to pursue their studies at home smoothly. He has added that the running of the mill would even pose a danger to the house itself. The plaintiff applied for a temporary injunction. The trial court passed an adinterim status quo order, and ultimately declared it to be absolute. Aggrieved by the order, the defendant has come in revision to this court.

(2.) THE impugned order is based solely upon the inspection of the spot by the learned Munsiff himself. The material portion of the order reads thus: - At the request of the parties and their counsel I have visited the place where the applicant is going to install the Band Saw machine. The distance between the residence of the applicant and the place where the applicant has constructed a shed is hardly fifty yards and in case non -applicant is allowed to install Band Saw machine, it would be permanent nuisance to the applicant and would cause great interference in his peaceful living Considering all the facts and attending Circumstances of the case, it is hereby ordered that the applicant shall pay all the expenses to be assessed by Assistant Engineer P. W. D. which have been spent by the non -applicant on the construction of the shed etc. within fifteen days from the date of the order and then the order of status quo shall become absolute otherwise same shall stand."

(3.) THE argument of the learned counsel for the petitioner is that learned Munsiff has almost decided the entire suit on a visual inspection of the spot. She urged that spot inspection cannot be a substitute for evidence. It can only be a means to assist the court in appreciating the evidence. The court has put the cart before the horse. Ordinarily it should have allowed the parties to produce whatever evidence they wanted to rely upon for prima -facie satisfaction, one way or the other and thereafter inspected the spot in order to appreciate the stand respectively taken by them. The court could not act as an expert and decide in a huff whether the nuisance was actionable or not. The way the court has approached the case is unprecedented and unheard of. In reply, learned counsel for the respondent contended that the teamed Munsiff had proceeded to the spot at the joint request of the parties and fairly and frankly stated whatever impressions he had gained as a result of such inspection note contained in the order.