1. ' The appellant has assailed order, dated 21-2-2007, passed by a learned single Judge in suit No,1392 of 2006, whereby he allowed application under Order XXXIX Rules, 1 and 2 C.P.C. Filed by respondent A No,1 bearing C.M.A. No,7875 of 2006, whereas dismissed the application (C.M.A.
2. No,8161 of 2006) filed by the appellants under Order XXXIX, Rule 4, C.P.C.
3. ' Succinctly, the facts leading to the case are that the appellants had allotted acquired Plot No, F/642 S.I.T.E. Karachi, applied for the change of its location to the respondent No,2 on account of encroachment, however, location was changed on 4-8-2006, the respondent No,2 issued challan, adjacent to the exchanged Plot No, F/642, there exists sewerage drain Nalla (on the other side, Plot No,B/21 was leased out in favour of the respondent No,1, has resorted to file suit seeking declaration that its vested right to use the sewerage drain (Nalla) (on the southern side) of Plot No,B/21 and respondent No,2 has no lawful authority to transfer and create third party interest over the sewerage drain sought permanent injunction restraining the appellants and respondent No,2 from raising construction on South western side of its plot. The respondent No,1 sought declaration that the transfer of piece of land situated on the south western side to its plot be declared void and its transfer and allotment in favour of the appellants be cancelled.
4. ' It is an admitted fact that industrial Plot No,B/21 S.I.T.E., Karachi was leased out to the respondent No,1 as per indenture of lease, dated 4-2-1979, plot is bounded by sewerage drain located on its west south side, the respondent No,1 had constructed factory over the said plot and the sewerage drain (Nalla) is used as storm water drain as well as for drainage and sewerage and waste water from its factory.
5. ' Mr. Mushtaq A. Memon, learned counsel for the appellants has contended that 25 feet wide sewerage drain was not allotted to any person, the land existing between the sewerage drain and Plot No,B/21 owned by respondent No,1 was allotted to the appellant, the ground was levelled respondent No,1 tried to interfere into construction work raised by the appellants over the plot through impugned order injunction was confirmed. It is specifically contended that the appellant was not raising construction over the Nalla, which shall not deprive the respondent No,1 and other lessees of the plot in the vicinity from the outlet of sewerage and rain water, which according to the Master Plan is 25 feet and about 80 feet open land, at one side 65 feet wide upon land, at the other side open land is available with the boundary wall of the respondent No,1 and sewerage drain. The appellant had been earmarked Plot No,F-642 by relocating the original plot, which was under encroachment near Baldia Colony could not be utilized.
6. ' It is urged that the open land lying between Nalla and respondent No,1 factory could not change the position of Nalla as evident from the general layout plan of the respondent No,2, as approved 25 feet Nalla which has not been reduced nor is likely to be narrowed as appears from the report of the Nazir available on record.
7. ' Mr. K.A. Wahab, learned counsel for the respondent No,1 has contended that according to existing position, the sewerage drain is a common amenity for public use, by virtue of the accommodation of the appellant by respondent No,2 the entire system would be disturbed and the respondent No,1 shall be deprived from easementary rights on account of construction of proposed building to be raised by the appellant.
8. ' It is next urged, that the respondent No,1 could not lawfully have access to the sewerage drain for discharge of waste in the sewerage drain.
9. ' In support of the above contentions reliance has been placed on the following case law:--
(i) Muhammad Sharif v. Additional District Judge Lahore and others (1991 SCMR 1996).
(ii) Shahzada Muhammad Umar Beg v. Sultan Mehmood Khan and another (PLD 1970 SC 139).
(iii) Pakistan International Air Lines Corporation v. Messrs. Hazir (Pvt.) Limited and another PLD 1993 Karachi 190.
10. ' We have considered the arguments advanced at bar and perused the record of the case.
11. ' From the Nazir's reports and figures placed on record it is borne out that the culvert has been constructed by the appellants, Nalla has been channelized by the appellants, the holders of industrial plot in vicinity did not raise any objection upon the proposed construction over the industrial plot allotted to the appellants in exchange, the respondent No,1 is claiming easmentary right in terms of sub-clause (3) of clause 5 of the lease in accordance with section 38 of Easement Act. It is borne out from the letter endorsed by respondent No,1 addressed to the respondent No,2, dated 30-4-1968 that the respondent No,1 was interesting in acquiring the portion of the land lying near Nalla adjacent to the plot No,B/21, for which copies of the drawing showing the layout was annexed with the application which manifestly suggests prima facie that land allotted to the appellant was available in the year, 1968, as respondent No,1 has shown willingness to acquire the same. The respondent No,2 being the lessor had authority to posses, own carve out, modified plans to grant lease for development of industrial plot. The respondent No,1 cannot claim the right over constructed drains or layout pipeline for discharge of waste through lane which does not belong to him but can have lawful access to the Nalla towards east west and or east west north side.
12. ' As pointed out by the learned counsel for the appellant, they have voluntarily constructed four pipelines through their plot for discharge of waste by the respondent No,1, the new pipelines laid as service reconnected to the subject sewerage drain and run through the appellant's plot though respondent No,1 cannot claim any easementary right thereto.
13. ' There is no cavil to the proposition that equitable remedy by way of injunction whether, mandatory or interlocutory is discretionary in nature, can never grant as a matter of right. The Court has to consider prima facie case, balance of convenience whether lies in granting the injunction or not whether justice would be served by an order of injunction. The respondent No,1 has failed to make out a prima facie strong case as admittedly in the year, 1968, the respondent No,1 has applied for the allotment of the land allotted in exchange to the appellant's plot had been levelled, the denial of right to the appellant to raise construction would tantamount to hampering their rights which cannot be compensated by the respondent No,
1. In terms of the damages which shall be sustained by the appellant, therefore, scale of balance is in favour of the appellant rather than the respondent No,
1. In any view of the matter, the impugned order is not sustainable in law as the learned single Judge did not exercise his discretion judicially in granting temporary injunction against the appellant. Resultantly, impugned order is set aside and the appeal stands disposed off vide short order, dated 13-2-2008 in the following terms:---
(i) The appellants shall raise construction over the subject plot at their own risk and cost subject to determination of all issues without disturbing the sewerage system of the respondents.
(ii) The appellants shall not create any third party interest pending adjudication of the main issue before the Single Judge.
(iii) The appellants shall not touch 25 feet Nalla existing adjacent to plot bearing No,B-21 of respondent No,l.
14. ' The appeal stands disposed of in the above terms with no order as to costs, these are the reasons for the short order, whereby appeal was disposed of.