1. ' RAHMAT HUSSAIN JAFFERI, J.--- The present appeal is directed against the order, dated 13-12-2006 passed by the learned Single Judge of this Court in Suit No,1059 of 2006, by which the learned Judge has dismissed the application under Order XXXIX, rules 1 and 2, C.P.C. Filed by the appellants.
2. ' Brief facts giving rise to the present appeal are that the respondents Nos.1(a) and (b) (hereinafter referred to as the respondent No,1) were raising commercial building on Plot No,151/N, Block-2, P.E.C.H.S., Karachi, which was situated on Khalid-bin-Walid Road. The appellants challenged the said construction by filing the suit, taking plea that the plot was residential, which has been illegally converted into -commercial; that the proper procedure for making the residential plot into commercial has not been adopted, as the objections raised by the appellants were not considered and no public hearing was given to them. The appellants filed the suit with various prayers.
3. ' Along with plaint, the appellants filed an application under Order XXXIX, rules 1 and 2, C.P.C., which was contested by the respondents. After hearing the parties' counsel the learned Single Judge dismissed the application under the impugned order.
4. ' We have heard the parties' Advocates and perused the record of this case very carefully.
5. ' The learned Advocate for the appellants has reiterated the same points as taken by him in challenging the conversion of plot' from residential to commercial as mentioned above and further asserted that no public hearing was given as provided under the procedure under "Change of Land Use and Master Planning, Bye-Laws, 2003".
6. ' Mr. Abid Zuberi, learned Advocate for the respondent No,1 has argued that the plot was commercialized in accordance with law; that the road on which the plot is situated viz. Khalid-bin- Walid Road has been declared as commercial road vide Resolution No,383, dated 6-1-2004. He has further argued that the suit was filed after delay of seven months; that the respondent No,1(b) is unaware of objections allegedly filed; that the property is surrounded, by commercial plots on commercial road, therefore, is a commercial plot; that even otherwise, proper procedure was adopted in changing the plot by moving application for the said purpose and the competent authority allowed the application. He has relied upon (1) 2005 CLC 759, (2) 2005 CLC 694, (3) PLD 2006 Kar. 63, (4) C.P. No,729 of 2005 and (5) 1989 SCMR 2089.
7. ' The learned Advocate for the respondent No,3 has adopted the arguments of Mr. Abid Zuberi and further added that the objections filed by the appellants were under Karachi Building Control Authority; that the said authority had concurrent jurisdiction to declare the plot as commercial from residential; that the objections raised by the appellants cannot be considered as objections in the legal sense.
8. ' The learned Advocate for the respondents Nos.7 to 10 has also adopted the arguments of Mr. Abid Zuberi and further added that the respondents Nos.7 to 10 are bona fide purchasers, who have purchased the flats after due diligence and examining the required documents viz. Sanction order, approved plan etc. ' The learned Advocate for the respondent No,4 has argued that Khalid-bin-Walid Road was declared as commercial vide Resolution No,383, dated 6-1-2004; that the plot is situated on commercial road; and that the proper procedure was adopted for conversion of the plot from residential to commercial. He has supported the impugned order.
9. ' In reply, the learned Advocate for the appellants with reference to PLD 2006 Kar. 63 and an unreported judgment of the Honourable Supreme Court of Pakistan in the case of Ardeshir Cowasjee in Civil Petition No,729-K of 2005 stated that the Honourable Supreme Court simply reproduced the observations of the Division Bench of this Court.
10. ' We have given due consideration to the arguments, gone through the material available on the record, relevant law, case-law cited at the Bar and found that the suit property is situated on Khalid-bin-Walid Road which is a commercial road as per Resolution No,383, dated 6-1-2004, therefore, it has become commercial area. In such situation, we are of the considered view that once an area is declared as commercial then commercial activities are required to be carried out in accordance with law without any hindrance and the properties in such area seems to be governed by laws applicable to such area. The conversion of area or plot from residential to commercial, which is converted in accordance with law, is not an illegal act. Thus, Khalid-bin-Walid Road is a commercial road, therefore the act of conversion of suit property from residential to commercial is apparently not illegal. Reference is invited to Irfan v.K.B.C.A. 2005 CLC 694, Excell Builders v. Ardeshir Cowasjee 1999 SCM R 2089 and Civil Petition No,729-K of 2005, Areshir Cwasjee v. K.B.C.A.
11. ' From the perusal of record, it appears that the proper procedure apparently was adopted for conversion of plot. The application for commercialization was forwarded to the Secretary P.E.C.H.S; on 12-5-2005. After payment of usual fees, request was made to E.D.O. (M.P.G.O.) C.D.G.K. To issue N.O.C. Required publication was made by Union Council No,7. Required N.O.C. Was granted by C.D.G.K.- M.P.G.O. Lessor also granted permission for commercialization of plot. P.E.C.H. Society also allowed such permission. Then the plot was commercialized. The building plan was approved and then revised. The construction is being carried out as per plan which has been confirmed by the Nazir during inspection.
12. ' The main objection of the appellants is that their objections were not considered by the Union Council and no public hearing was given.
13. Mr. Abid Zuberi contended that the master plan did not receive the order of the Union Council within time as provided under By-Law No,3(2) ( ) of Change of Land Use and Master Planning Bye- Laws, 2003, therefore, the permission from the Union Council was deemed to have been granted and Master Plan Department can take further action. At present, a presumption as required under illustration (e) of Article 129, Qanun-e-Shahadat Order, 1984, can be raised that official acts have been regularly performed. However, both these contentions require deeper appreciation of evidence, which can be properly thrashed out at the time of trial.
14. ' From the tentative assessm ent of the material available on the record, we are of the considered view that the appellants have no prima facie case at this stage.
15. ' The balance of convenience is also not in favour of the appellants as great inconvenience will be caused to the owners of the property in exercising their legal rights to deal with the property as per law. Furthermore, we have been informed by the learned Advocates for the respondents that the entire building is complete; third party interest has already been created as is clear from the arguments of the learned Advocate for the respondents Nos.7 to 10. No irreparable loss will be caused to the appellants, if the injunction is refused because the loss, if any, can be compensated in the shape of damages as claimed by the appellants in the prayer clause of the plaint.
16. ' In the light of what has been discussed above, the impugned order does not require any interference. The appeal is dismissed.