' GHULAM DASTAGIR A. SHAHANI, J.--- Through C.M.A. No,1839 of 2008 moved by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. The plaintiff has prayed to restrain the defendants as well as to their representatives and agents, not to demolish the existing structure raised on Plot No,C-51, Block B, Gulshan-e-Jamal, P.R.E.C.H.S., Faisal Cantt, Karachi, nor act/implement the directions issued by the Cantonment Executive Officer, Cantonment Board Faisal, Shahrah-e-Faisal, Karachi, under his letter No,CBF-9/Notice/C-51/BLB/J dated March 4, 2008, for removal of structure, in any way, till decision of the suit.
2. Brief facts of the suit are that, the plaintiff is an authorized dealer of Pak Suzuki Motor Company Limited, so also the owner of Plot No .C-51, Block "B", Gulshan-e-Jamal , P.R.E.C.H.S., Faisal Cantt, Karachi. The plaintiff, in order to provide 3S facilities to the customers/buyers of the Suzuki Cars, proposed to establish a new showroom/shop on a particular place situated behind the existing show-room of the plaintiff. Further case of the plaintiff is that a building plan for the proposed workshop was also submitted by him and completed the construction work as per building plan and inauguration ceremony of said workshop was also taken place, and plaintiff had been using the same with effect from March, 2004, but all of a sudden received a letter from Cantonment Board Faisal, Karachi, bearing No,CBF-9/Notice/ C-51/BL-B/J dated March 4, 2008 for providing a copy of approved building plan within a period of three days, in a clear terms that in case of failure structure available at the site will be demolished through their officials. As such, plaintiff filed present suit against defendants for declaration to the extent that such directions issued by the Cantonment Board, Faisal, are illegal and unlawful and building plan can be regularized on payment of usual regularization fees plus fine, if any. However, on 5-3-2008 notices were ordered by this Court to be issued to the defendants. On receipt of notices, written statement as well as counter affidavit was submitted by the defendants in respect of injunction application C.M.A.
No,1839 of 2008 stating therein that, no building plan has been submitted by the plaintiff with the office of Cantonment Board Faisal, though admitted that appeal under section 274 read with Schedule V of the Cantonment Act, 1924 is pending for want of decision.
3. With consent of learned counsel for the respective parties, application for inspection viz. C.M.A.
No,1838 of 2008 was allowed on 3-4-2008 and Syed Sabit Ali Shah, Private Secretary (Protocol) was appointed as a Local Commissioner to inspect the suit property and report. Arguments were heard in respect of C.M.A. No,1839 of 2008 on 3-4-2008 and 4-4-2008 respectively and matter was fixed for announcement of the order on 8-4-2008. As inspection report was awaited, matter was adjourned for same purpose. However, site inspection report was received by the office on 11-4- 2008 and nobody objected/challenged the same, therefore, presumption can be taken that, both the parties accepted the same.
4. I have heard learned counsel for the plaintiff, as well as learned counsel for the defendants Nos.2 to 4 and with their assistance have gone through the material available on record. Learned counsel for the plaintiff repeated same facts and grounds as disclosed by him in the memo. Of Plaint and learned counsel for the defendants Nos. 2 to 4 repeated the version as alleged in the written statement and counter affidavit respectively.
5. Learned counsel for defendants Nos.2 to 4 further urged that the structure raised by the plaintiff is without approval of the Cantonment Board Faisal, as such illegal act cannot be protected under any law, therefore, structure raised by the plaintiff is liable to be demolished and removed. He requested for dismissal of injunction application C.M.A. No,1839 of 2008, on the ground that plaintiff has no case, nor balance of convenience lies in his favour, nor plaintiff will suffer any loss.
6. It is well settled principle of law that every case is to be decided on its own merit, and plaintiff has to prove his own case and he cannot be benefited on the weakness of other side, if any. So far grant and refusal of injunction application is concerned, there are three essential ingredients, which are to be considered. So far injunction application is concerned, it is not necessary that plaintiff must have a strong good prima facie case but arguable case is sufficient. Admittedly, structure by spending huge amount is constructed by the plaintiff, though same may be without approval of building plan, for which reply of relevant paragraphs particularly paragraphs Nos.12 to 16 of the Plaint are so relevant, in which the Cantonment Board Faisal has not denied the existing structure and construction raised by the plaintiff, which is said to have been made in the year 2004.
Not only this but plaintiff is also ready and willing to pay usual fees in respect of regularization plus fine, if any. Admittedly, appeal is filed by the plaintiff and pending decision. Copy of miscellaneous application is submitted for grant of approved building plan subject to a decision under particular rules and regulations, though application for approval of building plan is denied/disputed, and genuineness of the documents require sufficient time to be decided, but no action and non-reply of the Cantonment Board Faisal, since such a long period, presumption can be taken that at least, plaintiff has applied for approval of building plan and matter is pending decision, in any way that is a right of the Board to approve or not, and to take necessary action if desires, if construction plan is refused on merits. Furthermore, mala fide is alleged against the defendants that construction of other surrounding buildings was subsequently regularized by the defendants, and all such facts also require framing of issues and evidence, and matter will take sufficient time, and by virtue of time, entire situation may be changed and create a fresh cause of action and the purpose of filing of present suit may become infructuous, as clear directions have been issued for demolition of the structure within a particular period. Local Commissioner has reported that the property in question is situated in Block 2, Gulshan-e-Jamal, P.R. E. C. H. S., Faisal Cantt., Karachi, on 10 x 15 feet wide street, and in front of the said property there exists another building known as Macca Arcade on Plots Nos. FL-8,9,10 and 11, whereas on right side is a road measuring 10 x 15, there exists a residential bungalow on Plot No,C-50 and the property in question is surrounded by a boundary wall viz. 10 x 12 feet high, and half of the property is covered with concrete RCC constructed roof, and remaining is covered with asbestos sheets supported by RCC Pillars from ground to top, whereas room has been constructed under the roof having a separate door and some tools and machinery were lying therein, and such building was fully electrified. All the equipments for denting, painting and other ancillary work were available and 13 to 15 motor vehicles were available in the aforesaid workshop.
According to his opinion structure available on the site was old one, hence adverse action is to be taken after demolition of existing structure, before deciding genuineness of application, available on record.
7. In view of above facts and circumstances, prima facie, plaintiff is entitled to the relief, as he has a good prima facie case and it will be inconvenient for him, and he will suffer at large in case of refusal of injunction, against the defendants, as merits and de-merits of the case are to be considered subsequently, therefore, for time being, during pendency of the suit, in order to maintain same position, it will be justified, to grant C.M.A. No,1839 of 2008, which is granted accordingly.
' With above observations, CMA No,1839/2008 is disposed of.