1. ' SYED PIR ALI SHAH, J.--- The appellants preferred this appeal assailing the impugned order, dated 27-6-2007 passed by the learned single Judge of this Court in Suit No,573 of 2007 praying therein for setting aside the same, restoration of the order, dated 18-5-2007 with directions and restraining the respondents Nos.1(a), (b) and (c)/owner and co-owners from installing or completing the installation work in any manner including the fittings of the gas pipeline and/or electricity and/or water at the Plot No,140-A, Allama Iqbal Road, Block-2, P,E.C.H.S., Karachi till the final hearing of the pending C.M.A. Bearing No,4768 of 2007 in Suit No,573 of 2007.
2. ' The facts of the appeal in nutshell are that on 15-5-2007 appellants filed a Suit No,573 of 2007 against the respondents seeking declaration that the said property is a residential property and cannot be converted for any commercial property including C.N.G. Station and no commercial construction can be carried out to the detriment of the respondents and owners of other plots. The appellant further prayed therein to restrain respondents Nos.1 to 7 and all persons acting/claiming under or through them from or for them from raising any construction on the said plot other than a building of one plus one height as well as for demolition of the construction already raised and restoration of the said property to its original position.
3. ' On 15-5-2007 learned Single Judge granted status quo orders till 1st June, 2007 and the case came up foe hearing on various dates when the counsel for the appellants were reported to be on general adjournment. Thereafter on 11-6-2007, respondents Nos.1(a), (b), (c) filed an application under section 151, C.P.C. Seeking modification in the status quo order which was adjourned to 16-7- 2007 on the ground that the counsel for the appellants were on general adjournment.
4. Subsequently, the respondent No,1 again filed an application under section 151, C.P.C. Along with an urgent application for change in status quo order on the grounds that the learned Single Judge has passed order dated 19-6-2007 in another Suit. Bearing No,382 of 2007 allegedly permitting the respondents to complete installation of the C.N.G. Station without making the C.N.G. Station operational till decision of the injunction application.
5. ' No reply to this appeal has been filed by any of the respondents.
6. ' Learned counsel for the appellants stated that the learned single Judge has acted in the exercise of jurisdiction illegally and with material irregularity by taking up the case during vacations when the appellant's counsel were on general adjournment and on that ground the learned Judge himself adjourned the matter on earlier date i,e, 16-7-2007. It is contended that the impugned order is neither justifiable nor proper rather it is a non-speaking order and cannot be sustained. He has further contended that the learned Single Judge has acted contrary to the judgments passed in the cases of Mst. Sardar Begum Faruqui v. Rashida Khatoon 1990 CLC 83 and Suleman Mala v.
7. K,B.C.A. And 3 others 1990 CLC 448 wherein the Division Bench of this Court allowed construction to continue at the sole risk and cost of the builder which would create complications and is prohibited. He submitted that the impugned order was passed without consideration of the material on record and is in misapplication of law. He further submitted that the reference to an order in another suit is not a reasonable ground and that the same has been passed without giving cogent reasons and is based on surmises, conjectures and extraneous consideration, without offering proper opportunity. He has also contended that the proposed C.N.G. Station is in a residential area surrounded by buildings and bungalows and allowing the respondents to establish the same is contrary to law.
8. ' We have heard the learned counsel for the respective parties. We have also gone through the case papers including order, dated 27-6-2007 impugned in this H.C.A.
9. ' As a matter of fact plaintiff filed Civil Suit No,573 of 2007 for declaration, injunction and cancellation of lease and documents with the following prayers:-- ' To declare
(A) That the plaintiffs' objections ought to have been heard while giving reasons for over-ruling the objections of the plaintiffs to the said conversion.
(B) That the impugned property is a residential property and cannot be converted for any commercial property including C.N.G. Station and the lessors bring on record the status of the property in the record of defendant No,2.
(C) That without prejudice to above the area where the proposed purported construction is being carried out is a residential area where no commercial construction can be carried out to the detriment of the plaintiffs and owners of other plots.
(D) That without prejudice to above the purported/proposed construction on the said plot in P.E.C.H.S., Karachi is violative of the terms and conditions of the lease and the fundamental rights of the plaintiffs and owners of the other plots in the area and will be causing inconvenience and would be a security risk.
(E) That the mandatory Environmental Impact Assessment as required Pakistan Environmental Protection Act, 1997 read with Review of I.E.E. And E.I.A. Regulations, 2002, Item H-1 of schedule-II has not been complied.
(F) That the alleged approvals/sanctions are illegal, void and ultra vires and of no effect, and alternatively if the defendants Nos.1 to 4 have obtained any approvals/sanctions they are without jurisdiction, illegal, void and ultra vires.
(G) That the defendants have violated the plaintiffs Nos.1 to 5 fundamental rights as guaranteed under Articles 9, 14, 24 and 25 of the Constitution, whereby the actions of the defendants would adversely affect the plaintiffs Nos.1 to 6 right to life, their security, deprivation of their rights in their property, discrimination against them by the defendants arbitrary, capricious and mala fide action respectively.
10. And to restrain
(A) The defendant No,6 be restrained from arbitrarily commercializing the residential stretch of Allama Iqbal Road.
(B) The defendants Nos.1 to 7 and all persons acting/claiming under, through, from or for them be restrained from raising any constructions on the said plot other than a residential building of only one plus one height.
(C) The defendants Nos.1 to 4 from using/approving the 20 feet wide service lane as access to the C.N.G. Station. This service area is meant to be kept open as under it pass the water, sewerage, gas and telephone lines which also supply to the houses behind this plot.
(D) The defendants Nos.1 to 4 from interfering with the utilities of the private residential houses.
(E) The Karachi Electric Supply Corporation from putting a P.M.T. Instead of a substation, as a P.M.T.
11. Is put shows less electric load requirement and then the area suffers outages and the builder uses the substation area for his pecuniary benefit.
(F) The Karachi Water and Sewerage Board from giving a water connection without adding more water to the area load and lay new sewerage pipes as existing ones cannot take more load.
12. And mandatory injunction
(A) To demolish the construction already raised and restore it to its original position.
(B) Sui Gas ensure safety and pressure of supply to the private houses.
13. And to direct
(A) Defendant No,2 to cancel the lease relating to the said plot and defendant No,4 to withdraw their approval to this C.N.G. Station.
14. And to grant
(A) Cost of the suit.
(B) Exemplary cost under section 35-A of the C.P.C.
(C) Any other/further relief that may be deemed fit and proper by this Honourable Court.
15. ' We have heard the learned counsel for respective parties at great length and have also gone through the case papers thoroughly; ' Essentially, the impugned order dated 27-6-2007 passed in Civil Suit No,573 of 2007 is reproduced below:-- "Mr. Khursheed Javed requests for adjournment on the ground that entire Naeemur Rehman and Co. Except him is on general adjournment upto various dates in July, 2007. On other hand Mr. Farogh has vehemently opposed the adjournment and has contended that two suits are by different persons are filed in respect of instant C.N.G. Station and in other suit viz. Bearing No,382 of 2007 this Court vide order, dated 19-6-2007, has allowed the defendants to complete the installation at hig own risk without the permission to operate upon an undertaking that in case the plaintiff succeeds, the entire installation shall be dismantle. It is submitted that the plaintiff cannot take the benefit of said order unless the status quo order dated 18-5-2007. In the instant suit is also modified in the same terms. Mr. Farogh Nasim states that various No Objection Certificates for installation of C.N.G. Station are time bound and are about to expire, therefore, in all fairness ex parte status quo order passed in this suit be modified accordingly.
16. ' Since order, dated 18-5-2007, was passed without hearing the defendants, and would cause undue hardship unless modified, on the other hand such modification in the end of the day would not prejudice the rights of the plaintiff, if any, therefore, in all fairness order passed in respect of the instant C.N.G. Station in Suit No,382 of 2007 allowing completion without the right of operation be applied to this suit as well. As to the request of adjournment, in my view such modification can be directed ex parte.
17. ' The plaintiff therefore, may complete the installation in terms of order dated 19-6-2007, passed in Suit No,382 of 2007 without the right of operation. Hearing of all pending applications as suggested are adjourned to 16-7-2007 when other Suit No,382 of 2007 is fixed."
18. ' Obviously, the impugned order is not a final order disposing of the main injunction application. Of course, initially status quo order was passed on 4-4-2007 upto 24-4-2007 which was never got extended afterwards. The impugned order was, therefore, passed to the extent that the defendant was allowed to complete installation at their own risk. It was further made clear that the C.N.G.
19. Station would not be operated unless the listed applications are decided one way or the other. The matter was, therefore, adjourned to 16-7-2007 for the requisite purpose. In this H.C.A. Learned counsel for appellants has assailed the impugned order on as much as 18 grounds. It has been agitated that the impugned order is not speaking order and that the learned counsel for the plaintiff was on general adjournment due to his personal problems and the material available on record was not taken into consideration for modifying the orders of status quo passed earlier. As mentioned above, the injunction application bearing C.M.A. No,4768 of 2007 is pending decision before the Court. At the very outset it is to be mentioned here that the impugned order is a balanced order for the reason that as mentioned in impugned order, dated 27-6-2007 passed in Civil Suit No,573 of 2007 that the defendant No,8 undertook that he will not operate upon the C.N.G.
20. Station till final decision by the Court. Simultaneously, defendant No,8 also undertook that in case decision of the Court is otherwise, he would dismantle and demolish the construction etc. Made by him for the purpose of C.N.G. Station. The rights and interest of the plaintiffs are totally secured and his apprehensions are over. Thus, there appears no any fault or illegality so far the impugned order, dated 27-6-2007 is concerned. It has, been held by the Honourable Supreme Court of Pakistan in a case reported in 1995 SCMR page 753 that the undertaking given by the respondent was considered a sufficient protection of the interest of the petitioner. It has also been held in a unreported case in Civil Petition No,392 of 1995 dated 5-12-1995 by the Honourable Supreme Court of Pakistan that any construction raised by the petitioner on the plot and or any third party interest created in suit property will be entirely at the risk of the petitioner .And subject to the result of appeal. These are the enlightening authorities very much applicable to the present case.
21. ' In view of the above cited authorities of the Honourable Supreme Court, the arguments put forth by the learned counsel for appellants, are without any force. At the most, they can agitate these arguments as and when injunction application is finally heard and disposed of on merits.
22. Apparently there appears no fault or any illegality in the impugned order which was passed in order to accommodate and safeguard the interest of both the parties. Conclusively, it is determined that this H.C.A. Is without any merits and as such, the same is dismissed.
23. ' These are the reasons for the short order whereby this H.C.A. Was dismissed on 1-2-2008.