' RAJA FAYYAZ AHMAD,J.--- Through this civil petition leave to appeal has been sought for from the judgment dated 5-12-2006 passed by the learned Division Bench of the High Court of Sindh at Karachi in High Court Appeal No,251 of 2006, whereby the High Court Appeal filed by the petitioner under section 15 of the Ordinance No,X, of Code of Civil Procedure (Amendment) Ordinance, 1980 against the impugned order dated 9-6-2006 passed by the learned Single Judge of the said learned Court dismissing the application under Order XXXIX, rule 4 read with section 151, C.P.C. In Suit No,728 of 2004 has been dismissed.
2. The precise relevant facts of the case are that respondents Nos.1 to 6 instituted suit for declaration and permanent injunction against the petitioner and the other respondents, inter alia; stating therein that Plot No,151-A, Block-2, PECHS, Karachi measuring 1000 sq. Yards situated in a residential locality, on which the petitioner is raising illegal multistorey commercial building in violation of Lease Conditions executed by respondent No,9 on behalf of respondent No,10 containing restrictive clauses were not adhered to inasmuch as; the required express permission/NOC from respondent No,10 regarding the change of the status of plot from residential to that commercial was also not obtained before commencement of the construction. The suit was filed by respondents Nos.1 to 5 being the residents of PECHS for the last more than 25 years, in the public interest. It was also contended in the plaint that as per the relevant clause of Lease Conditions, conversion of the status of the suit plot to commercial one cannot be given effect to for want of express consent in writing from the Ministry of Housing and Works, Government of Pakistan.
The respondents/plaintiffs having statedly noticed the construction activity being carried out on the site, discovered that the petitioner/defendant No,5 in the suit (Datari International) has succeeded in obtaining approval of the plan of the proposed construction on 20-11-2000 from respondents Nos.7, 8 and 9 (defendants Nos.1, 2 & 3) in the suit for the construction of basement, ground floor, five floors Apartments Complex under the name and style of `Datari Arcade' which approval of the site-plan was unlawful and accorded in disregard of the provisions of the Regulations, 2002 relating to the category of proposed construction of the building. It was further alleged in the suit that in the year, 1997 the petitioner had attempted to raise illegal construction on the impugned plot after obtaining approval of the plan for basement, ground floor and 4 others floors in collaboration of K.B.C.A., who on intervention of respondent No,6 and on behalf of the residents of the area K.B.C.A. Was compelled to seal the premises on 30-3-1998 and eventually, the approved site-plan was cancelled. Further, the case of the respondents/plaintiffs has been that the construction of multi-storey building on the plot in question would seriously affect the amenities being enjoyed by the residents of the area, such as; light and residential character of the neighbourhood will be withered as also a violation of the civil statutory and constitutional rights of the respondents/plaintiffs as enshrined under relevant Articles of the Constitution, moreover; construction continued on the plot will be a source of perpetual nuisance, ventilation, privacy etc. In respect whereof letters were addressed to the concerned authorities but with no positive response. Also thereafter, respondent No,6 addressed letters to the Ministry of Housing & Works and to the Federal Ombudsman requesting for supply of the requisite information regarding the status of the plot but necessary information was not even provided by the K.B.C.A. Also complaints and applications were statedly made to all the concerned Authorities by respondent No,6. It has further been contended that the Federal Ombudsman observed on 26-5-2004 in view of the acknowledgment of the Ministry of Housing and Works/Lessor that the impugned plot has a residential status and was never commercialized allegedly confirmed by the Ministry of Housing and Works through a letter and certificate dated 7-6-2000. As per case of the plaintiffs/ respondents the construction of the building on the said site is being carried out in violation of the S.B.C.O., 1979 and Regulations, 2002.
3. Suit No,728 of 2004 was presented on 28-6-2004 which was listed before the learned Single Judge of the High Court of Sindh at Karachi on 30-6-2004. Notices were ordered to be issued to the parties and after hearing them status quo position was ordered to be maintained by the parties.
Also Nazir of the Court was appointed to act as Local Commissioner, who visited the site and determined the status of the building regarding alleged illegal construction with the assistance of the qualified Architect Engineer, who after inspection of the site as directed by the learned Court submitted his report in the said learned Court.
4. After receipt of the notice of the institution of the suit, the petitioner filed counter affidavit and copies of the relevant documents to defend the case and for the dismissal of the application under rule 76 of the Sindh Chief Court Rules (O.S.) read with section 151 C.P.C. (C.M.A. No,4625 of 2004) for restraining petitioner from raising further construction on the plot in question in the light of the averments as contained in the plaint and the law.
5. The case of the petitioner is that the plot in question belonged to Messrs Samad Housing Development Corporation which carried on illegal banking business on the strength of the investment of the money of the general public which matter culminated into the filing J.M. No,31 of 1991 in which proceedings the same was ordered to be wound-up and the properties/assets were taken up by the Assignee appointed by the learned High Court. After the due exercise, possession of the plot in question was obtained by the Official Assignee and the leasehold rights of the same was offered for sale to the general public through various public notices published in different daily newspapers, The petitioner during the course of auction proceedings statedly verified about the relevant documents and found that plot in question is a commercial one and was satisfied about its status, as also reflected from the public notices which appeared in different daily Newspapers, moreover; according to the case of the petitioner, the plot is situated on the corner of Khalid Bin Waleed Road and Allama Iqbal Road declared as commercial roads by the relevant authorities long before, besides the title documents as well, expressly provided the same as a commercial plot, its sale was allowed in favour of the petitioner being the highest bidder to the tune of Rs,4,25,00,000 by the learned Court seized of the matter and finally sale was also confirmed in his favour. Further, the case of the petitioner is that A. Rehman Dadabhoy of Messrs Samad Housing Development Corporation had laid the foundation of the proposed construction of a building on the plot in question on the basis of plan already approved by the competent Authority and the petitioner proceeded further with the construction works however; as frequent deviations/violations were found for going ahead with the construction works, the petitioner decided to demolish the existed construction and got revalidated/renewed approval of the building plan/NOC in 1997 and in view of the allegations that the construction made on the site was not done in accordance with the approved plan, the construction works were recommenced in accordance with the revalidated approved plan which too was opposed and agitated against by various quarters including respondents Nos.6, 7 and 8 and thus; being constrained in the circumstances, the petitioner again approached respondent No,8 after demolishing the previous construction, requested for the renewal of the plan for the construction of the proposed building on the said site which was approved by respondent No,8 vide letter dated 20-11-2003 pursuant to which the petitioner recommenced with the construction of the building on site in accordance with the approved plan.
' During the commencement of the status quo order, as per case of the petitioner, the process of conversion of land use was pending with respondent No,10 at the instance of respondent No,9 and finally the status of the land use as commercial plot was accepted subject to the payment of Rs,4,00,000 paid through challan by the petitioner whereafter, mutation of the plot in question as commercial plot was issued on 9-10-2004 and further conveyed to the petitioner by respondent No,9 vide letter dated 19-10-2004. As per case of the petitioner, Khalid Bin Waleed Road and Allama Iqbal Road were commercialized which have also been declared as such; by the competent Authority after observing all the legal formalities, yet the final dismissal of the application consumed about an year before the learned Judge (0.S.) and the learned Court vide order dated 23-5-2005 allowed the application and restrained the petitioner from raising further construction, challenged in High Court Appeal No,141 of 2005 in which it was found by the learned Bench of the Honourable High Court that the documents regarding title of the land and change of the land use etc. Were not considered by the learned Single Judge (O.S.) as such; with consent of the parties, the Honourable Bench remanded the case with the direction to the petitioner to file Review Application before the learned Single Judge (0.S.) with all the relevant documents. The review application accordingly was filed by the petitioner. The same was resisted by the respondents/plaintiffs and was dismissed by the learned Single Judge (0.S.) vide order dated 9-6- 2006, assailed in High Court Appeal No,291 of 2006 by the petitioner dismissed by the Honourable Bench of the High Court vide judgment impugned herein.
6. It has, inter alia, been contended by the learned Sr. Advocate Supreme Court for the petitioner that the learned Single Judge (0.S.) and the learned Division Bench of the High Court did not take notice of the fact that the City District Government Karachi/respondent No,7 vide resolution dated 6-1-2004 notified in the official gazette declared Allama Iqbal Road, Karachi and Khalid Bin Waleed Road, Karachi as Commercial for all intents and purposes, moreover; before commercialization of the status of the plot in question public notice was also published in Daily Dawn dated 3-6-1998 inviting objections and for mutation of the said plot in the name of the petitioner as commercial plot but no objection by the plaintiffs/respondents as regards the conversion of the plot by the competent Authority was ever filed, thus; eventually the plot in question on payment of the due charges to respondent No,10, mutation was effected in favour of the petitioner. The learned counsel traced out the status and the history of case, submitted that initially on 13-3-1998 first ever letter was sent by respondent No,6 expressing grievance about the alleged illegal construction being not made in accordance with the approved plan and thereafter, on 13-4-1998 second letter was sent that a commercial building is being raised in violation of the law while in the third letter dated 13-5- 1998, it was again alleged that construction on the plot in question is being made in violation of the approved building plan, whereas; for the first time vide letter dated 20-5-1998 it was alleged that commercialization of the plot in question has been made without public notice. According to the learned counsel the plot in question was purchased as 'commercial' by the petitioner on 3-6-1998 offered by the Official Assignee and notice was duly published in Newspapers not objected to by any person or the plaintiffs/ respondents. The petitioner after due satisfaction and taking into account the entire relevant documents was reasonably satisfied referred to by the Official Assignee about the 'Commercial nature' of the plot in question and he being the highest successful bidder obtained the plot and the sale was duly confirmed by the learned Judge of the High Court seized of the matter. He further contended that after due process and publication of the notices by all concerned, status of the plot for its use as `Commercial' has been made by the competent Authority, inasmuch as; in accordance with the approved site-plan construction of the basement and the 1st floor has already been made and no exception to the further construction could be taken in view of the undisputed documents hence; the impugned judgments passed by the learned Single Judge (0.S.) and judgment passed by the learned Division Bench on appeal preferred by the petitioner are not sustainable. The learned counsel on account of the pendency of the suit frankly conceded that the petitioner would be raising construction on the said site strictly in accordance with the approved site-plan which shall be subject to the final decision in the suit proceedings, thus; in the over all facts and circumstances of the case argued that the grant of prohibitory injunction is not in consonance with the well set principles for the grant and refusal of injunctions.
7. The learned Advocate Supreme Court for respondents Nos.1 to 6/plaintiffs on caveat, mainly reiterated the grounds of the arguments put forth before the learned High Court during hearing of appeal. He very vehemently argued that the status of the plot till date remains as residential and not commercial for the reason that its conversion from the residential was not made after the due process and the publication of the notice in the Newspapers inviting objections against the proposed conversion and; only the Federal Government to which the plot in question belongs could have applied for such conversion, inasmuch as; the plot in question could not have been commercialized in violation of the Lease Conditions executed between the parties for want of express permission/N.O.C. From respondent No,10 for the use of the plot as commercial, hence; according to the learned counsel the impugned judgment is unexceptionable, as also the learned Court after due consideration of all the relevant facts and the law maintained the prohibitory order passed by the learned Single Judge (O.S.) in the High Court.
8. The impugned judgment and the order dated 9-6-2006 impugned in appeal by the petitioner passed by the learned Single Judge have been gone through carefully including the pleadings of the parties and the documents available with this Court in the light of the arguments put forth on behalf of the parties by their learned counsel. It is an undisputed feature of the case that the Official Assignee after the publication of the notice offering sale of the plot to general public as commercial was put to public auction in which the highest bid offered by the petitioner was accepted and eventually its sale was confirmed in favour of the petitioner by the learned Judge in the High Court seized of the matter,, as well as; all the relevant documents relating to sale of the plot in question to general public in open auction inviting bids categorically mentioned about the nature/status of the offered plot, hence; the petitioner reasonably prima facie justifiably participated in the bid process and got the plot in question being the highest bidder after the sale was finally approved by the learned Judge in the High Court for which the entire liability was discharged by him. Further it has been pointed out that the plaintiffs/respondentts in response to the notice published in the newspapers for sale of the plot in question as commercial, no objection was made by either of them or any other person nor any objection in response to the notice published in Daily Dawn dated 3-6-1998 in respect of the mutation of the plot in question was made by the plaintiffs/ respondents to the PECHS or to Section Officer, (EVI) Government of Pakistan, Housing and Works Division, Islamabad as a commercial plot. Respondent No,6, as it appears from the documents available on record initially in March, 1998 and then on 13-4-1998 and 13-5-1998 objected about the alleged illegal construction being raised on the plot in question in violation of the approved building plan but did not agitate about the sale of the plot to the petitioner as commercial. Thereafter, vide letter dated 20-5-1998 for the first time it was alleged by respondent No,6 that commercialization of the plot in question has been made without public notice. The said plot was offered for sale to general public as commercial plot and the bidding process was completed in March, 1997 whereas, the present suit was filed on 28-6-2004 after a lapse of considerable time period from the above said date when for the first time on a technical ground as above said commercialization of the plot was questioned by respondent No,6. Apart from aforesaid aspects of the case, in paragraph No,1 of the plaint, it has been stated that the impugned plot is a corner plot and is located at the junction of Allama Iqbal Road and Khalid Bin Waleed Road which roads have already been declared and approved by the City District Government Karachi/respondent No,7 as commercialized vide proposal No,2 published in the Sindh Government Gazette (Extraordinary) dated 12-2-2004; contention to the contrary put forth by the learned counsel for respondents Nos.1 to 6 is devoid of substance for the reason that the Notification clearly speaks about the approval of the proposal No,2 in its opening sentence thus; for all intents and purposes it can hardly be said that the above said roads on their either sides and at their junction are not the commercial sites. The list of the buildings situated on both the sides available at page No,199, Part-III-A of the paper book shows existence of commercial buildings, which has not been disputed before us during arguments. In a case involving almost identical facts, the learned Division Bench of the High Court of Sindh, Karachi in High Court Appeal No,15 of 2007, copy placed before us by the learned counsel for the petitioner, has held in view of the Resolution No,383 that the suit property on which the parties were litigating is a commercial road being situated on Khalid Bin Waleed Road. In the parawise comments submitted on behalf of respondent No,10 in High Court Appeal No,251 of 2006 mentions that N.O.C. For commercialization of the plot from master plan and Environment Control Department, Karachi and Building Controls Authority was received with the approved commercial site-plan of the plot in question and after having received the charges amounting to Rs,4,00,000 from the petitioner, the plot in question as commercial one was mutated in the record of Office of the Ministry of Housing & Works, Government of Pakistan duly conveyed to PECSH. As regards the alleged breach of the instrument containing restrictive clauses executed between the parties and non-publication of the notice inviting objections by respondent No,10 etc. For conversion of the plot as commercial, in the over all facts and circumstances of the case besides other relevant questions and issues that may arise out of pleadings of the parties, can effectively be determined in the suit in which the parties would also be entitled to produce their evidence in support of pleas and grounds. Also it was urged during the arguments by the learned counsel for plaintiffs/ respondents that while concluding the impugned judgment it was specifically directed that the suit be decided expeditiously and preferable within six months. This order was passed on 5-12-2006 but till date even, the trial has not been concluded. In the light of the above said facts and reasons, the documents available on record and pleadings of the parties, we are of the considered opinion that the impugned judgment and the order dated 9-6-2006 passed by the learned Single Judge in the High Court are not sustainable, accordingly by converting this petition into appeal the same are set aside as the appellant has been found entitled to recommence with the construction works in accordance with the approved building plan which shall be subject to the final adjudication of A the suit. The observations recorded herein as to the claim of the petitioner to be entitled to raise construction on the site in question are tentative in nature, shall have no effect on the adjudication of lis on *tits and the law. The result is that this appeal is allowed. No order as to costs.