1. ' GHULAM DASTAGIR A. SHAHANI, J.---Through C.M.A. No.3949 of 2006 moved by the plaintiff under order XXXIX, Rules 1 and 2 r/w section 151, C.P.C., the plaintiff has prayed to restrain the defendants Nos. 1 and 2 directly or indirectly from raising construction of a multi-storeyed high rise building at plot No.18/2, Sh. 6, Civil Lines, Karachi, so also from creating third party interest by selling, allotting, booking, and transferring of any portion or flat and apartment to anybody else, on the aforesaid plot, till final disposal of the suit.
2. ' Brief facts of the suit are that plaintiff is a recognized ruler of Junagadh State under the Rulers "Recognition of Successors" Order, 1960, by the President of Pakistan, as successor of late Nawab Dilawar Khan Mahabat Khan for the purposes of vesting of properties and assets under the Devolution and Distribution of Property Order, 1963, by the Government of Pakistan. Plaintiff's further case is that State Residency, commonly known as Junagadh House situated at 10, Fatima Jinnah Road Karachi being official place of abode of the plaintiff enjoys the status of the residence of the ruler of a State duly acknowledged, as such, by the Government of Pakistan. In addition to all easement rights, commonly available and attached to every ordinary place of abode of any citizen, the State Residency enjoys far superior and additional rights of its safety, security and privacy for the last over 50 years. Further case of plaintiff is that some construction work is being carried out by the defendants Nos. 1 and 2, in the nature of a residential or cum-commercial multi- storeyed high-rise building/plaza, in front of plaintiff's State Residency in order to hamper and obstacle not only the light and air coming from the western side of the State Residency, but at the same time it would damage the privacy (chadar and Chardiwari) and will severely effect the security and safety of the plaintiff, which is his legally vested right, as such, filed a suit for declaration, permanent and mandatory injunction, so also protection of Easement Rights under section 32-35 of the Easements Act, 1882 and further that by such a construction right of easement will be disturbed and adversely affected, and also prayed for consequential relief of injunction, so also for a mandatory injunction respectively, with .a request that defendants Nos. 3, 4 and 5 be directed to withdraw/revoke and cancel all their approvals, sanctions, permissions and NOCs granted to them in respect of said construction work, with further directions to demolish the existing structure on plot No. 18/2, Sh. 6, Civil Lines, Karachi. On service of process written statement, as well as counter affidavits were filed by the defendants Nos. 1 and 2, as well as by the defendants Nos. 3, 4 and 5 respectively. Defendants Nos. 1 and 2 state that building in question is being constructed as per approved building plan obtained from concerned department, prior to the construction and no violation of any building rules and regulations has been committed, and denied that construction of building in question will obstruct flow of light and air into the so-called State. Residency and further that a grant of injunction will cause serious damage and loss to them, as no easement right of privacy and security is being affected, and further that main entrance of the building in question is on Sea Field Road, therefore, not facing the plaintiffs property. They further states that Indian High Commission comprising of 5 storeyes is located directly adjacent to the building in question on a corner plot of Seafield and Fatima Jinnah Road and several apartments located at the rear of the plaintiff's property available. As such they are not entitled for grant of injunction. They have also raised legal pleas in respect of maintainability of the suit.
3. Whereas the case of defendants Nos. 3, 4 and 5 is that suit filed by the plaintiff is barred by law, having no locus standi to file the same and construction has been raised up to the basement, plus ground plus two upper floors structure, as per approved plan. However, if any violation is observed at late stage, KBCA shall take appropriate lawful action, as approval of the building plan was granted for construction of basement plus ground, plus 1st floor (parking) plus 2nd floor (Mechanical area) plus 3rd to 10 floors (residential flats) plus 11th floor (amenities), on the basis of TP NOC, dated 2-3-2005, under letter, dated 3-6-2005 in the name of Mst. Abida Begum and 4 others, in accordance to the provisions of KBTPR 2002.
4. ' Heard learned counsel for the plaintiff as well as learned counsel for the defendants Nos. 1 and 2 and with their assistance I have gone through the material available on record.
5. ' Learned counsel for the plaintiff repeated same facts and grounds, as disclosed in the memo. Of plaint by him. Whereas learned counsel for defendants Nos. 1 and 2 repeated the facts as alleged in the written statement, as well as in a counter affidavit, respectively.
6. ' So far grant and refusal of injunction application is concerned, there are three ingredients which are to be considered. However, para Nos. 5, 8, 9 and 10 of counter affidavit filed by Muhammad attorney of the defendants Nos. 1 and 2 are very material in which it has been specified that construction of the building in question will not obstruct flow of light and air into the so-called State Residency, as building in question is being constructed as per approved building plan and all necessary approvals have been obtained prior to the construction and no violation of any building rules and regulations is made that they have a lawful right to raise construction on the suit property, and plaintiffs easement right of privacy and security will not be affected and further that main entrance of the building in question is on Seafield road, therefore, not facing the plaintiff's property, and there are several apartments,- buildings, located at the' rear of plaintiff's property, Indian High Commission, comprising of 5 storeyes is located 'directly adjacent to the building in question on a corner plot of Seafield and Fatima Jinnah Road. Not only this but paras. 2 and 3 of the written statement filed by the defendants Nos. 3, 4 and 5 are very material who have also supported to the version of the defendants Nos. 1 and 2, stating therein that, owner has raised construction within the approved limits of the building plan, neither any COS has been violated nor any floor violation has been made up to this stage and further that at present construction A has been raised up to basement plus ground plus two upper floors structure, as per approved plan, however if any violation is observed at later stage the KBCA shall take appropriate lawful action. As such there is no denial in respect of construction of the work to some extent. Even sub-clause-D of prayer clause of the memo. Is so relevant in which prayer has been made to demolish the existing structure raised on plot No.18/2. Sh. 6, Civil Lines Karachi. It is also observed that in para. No.9 of the affidavit submitted by the plaintiff, he himself has admitted that building plan have been approved, and permission has been accorded to obtain booking of their building/plaza from the ordinary buyers. From contents of the notice issued by the learned counsel namely Mr. Abdus Salam Baloch, dated 7-4-2008, it appears that some construction work is being carried out by one Messrs Abida Enterprises, through their builders at the site. Respondents Nos. 3, 4 and 5 have also supported to the version of the defendants Nos. 1 and 2, to the extent that construction has been raised after approval of building plan and no violation has been made and such construction has been raised up to the basement plus ground plus two upper floors structure respectively, and further that no easement right of privacy and security will be affected and main entrance of the building in question is on Seafield Road, therefore, not facing the plaintiffs' property and further that several other buildings located at the rear of the plaintiffs property, including Indian High Commission comprising of 5 storeyes directly adjacent to the building in question, on a corner plot of Seafield and Fatima Jinnah Road. Therefore, after admissions no further evidence prima facie is required and matter will naturally take sufficient time to be decided and to establish the right of easement, and violation if any, is yet to be proved by the parties through evidence. As such from available material on record, act has already been done and injunction cannot be granted under the aforesaid circumstances all such facts favours the respondents Nos. 1 and 2, and at this stage plaintiff has no case nor will be inconvenient for him nor will suffer any loss on the contrary defendants Nos. 1 and 2 will be deprived from their legal right after usual sanction from the competent forum/authority. Looking to the aforesaid circumstances plaintiff is not entitled for a relief of injunction.
7. ' With above observations C.M.A. No.3949 of 2006 is dismissed.