1. ' SYED MAHMOOD ALAM RIZVI, J.---The appellant, who is plaintiff in the suit has filed this appeal under section 15 of the Civil Procedure Code (Amendment) Ordinance, 1980 against the Order, dated 22-3-2006 passed by a learned Single Judge through which her application under Order XXXIX rule 1 C.P.C. (C.M.A. 8019 of 2004) was disposed of.
2. ' Brief facts leading to the instant appeal are that the appellant is owner of two (2) Shops bearing Nos.G-4 and G-5, situated on Plot Nos.PR-II/33 and VB-122 on Preedy Quarters, Garden Road, Karachi, total measuring 84 square yards, which she has purchased from Ismail Baig in the month of December, 1996. It is claimed by the appellant that the respondents Nos.1 to 14 are owners of adjacent property bearing Nos.G-1, G-2 and G-3 situated at Plot No,33, Sheet No,PR-2, amalgamated with the Plot No,PR-II/34, finally amalgamated with Plot No,34, Preedy Quarters, Karachi illegally multi storeyed building on disputed plots are being raised. It is case of the appellant that due to illegal amalgamation, the passage between the property of appellant and respondent's plots have been destroyed, caused serious damages to her property. With this background, the appellant filed a suit for declaration and injunction praying that the amalgamation plan as well as building sanction given by C.D.G.K. And KBCA, respectively be declared illegal and void ab initio, the respondents be restraiped from raising construction on the said plan. Appellant had also filed an application under Order XXXIX rules 1 and 2 C.P.C. (C.M.A. 8019 of 2004) which was disposed of through the impugned order. Hence this appeal.
3. ' We have heard Messrs Naimur Rehman and Khursheed Jawed Advocates for appellant Messrs Rasheed A. Razvi, Khawaja Shamsul Islam, Shahid Jamiluddin Khan and Mrs. Haleema Khan, Additional Advocate-General Sindh, for the respondents.
4. ' We have also gone through the entire record placed before us with the assistance of the learned counsel for the appellant and respondents. All the counsel for the respondents have supported the impugned order.
5. ' In support of his plea that the amalgamation of plots was illegal and unauthorized, Mr. Naimur Rehman has referred to several letters written by the appellant and her counsel to the different authorities raising objections regarding amalgamation of the plots. However, no action was taken on these letters that the official respondents Nos.18 to 21 proceeded to grant approval for amalgamation. It is pertinent to note that on 20-8-2004 the Additional District Officer (PC) of C.D.G.K. Issued NOC for amalgamation of Plots Nos.33 and 34 wherein one of the conditions was that " common passage/ access approach to Portion No,s.G-4 and G-5 as marked on the amalgamation letter shall be maintained as per undertaking dated 18-8-2004 " NOC was subject to further condition that all existing utility services of the Portion G-4 and G-5 shall be safeguarded and any violation of this condition shall automatically cancel the NOC for amalgamation. The undertaking referred to in the sanction letter pertains to the private respondents. Subsequently, on 26-8-2004, KBCA approved the building plan subject to the conditions of amalgamation letter, dated 20-8-2004. All these letters and orders placed, on record by the appellant regarding grant of NOC have not been disputed by any of the counsel representing the official respondents.
6. ' Learned counsel for the appellant was not able to satisfy that the amalgamation of the three (3) plots was illegal or in any manner violative of Karachi Building and Town Planning Regulations, 2002 (K.B. And T.P. Regulations, 2002) his main thrust of argument was in respect of Regulation 17 of the K.B. And T.P. Regulations, 2002. According to the learned counsel, no multistoreyed building could be raised on Abdullah Haroon Road, as the same has been declared "interim control area". He has also referred the history of Building Regulations and has quoted several provisions of Building Regulations, 1979 in order to show that the private respondents are raising illegal and unauthorized construction. Placed reliance on the following case-law:--- ' Muhammad Usman v. KBCA 1999 YLR 1170, Suleman Mala v. KBCA 1990 CLC 448, Abdul Waheed Butt v. Mrs. Asma and others 1989 CLC 1936, Muhammad Umer Beg v. Sultan Mahmood Khan PLD 1970 SC 373, Asma Jilani v. Government of Punjab PLD 1972 SC 139, State v. Nasimur Rahman PLD 2005 SC 270, Nazaz Ali (Nizar Ali) v. K.B.C.A. 2002 CLC 1464 and Abdul Razak v. K.B.C.A. PLD 1994 SC 512.
7. ' The case of Muhammad Usman (supra) is not relevant for the purpose of present controversy as it deals with the violation of Regulations 16(1)(c) of the Building Regulations, 1979. The case of Suleman Mala (supra) relates to the unauthorized construction, non-compliance of rules by a regulatory authority and on the principles of natural justice. Nowhere, the question of amalgamation or "Interim Control Area" or open passage were discussed by a Division Bench of this Court. In the case of Abdul Wahab Butt (supra) a Division Bench of this Court has granted prohibitory interim injunction in a constitutional petition restraining the private respondent from raising any further construction since it was found that prima facie, the private respondent was raising unauthorized construction. In the instant appeal, appellant has failed to establish that the private respondents are raising construction either without approved building plan or in contravention of the same. Indeed,. The rule laid down by a Full Bench of a Honourable Supreme Court in ' the case of Muhammad Umer Baig (supra) that for the grant or refusal of temporary injunction the plaintiff is required to show that he had a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of injunction and thirdly whether the plaintiff would suffer irreparable loss or injury if the injunction is refused is being followed by all the Courts of law. However, the appellant was not able to show the presence of all the three ingredients in her case for grant of temporary injunction. Rule laid down by Honourable Supreme Court in the cases Asma Jilani (supra) and Nasimur Rehman (supra) are not relevant for the disposal of instant appeal. In the case Of Nazaz Ali (supra) a learned Single Judge of this Court has defined those judgments which could be termed "per incurium". There is no cavil to the proposition that any order or judgment which has been rendered without considering the relevant provisions of law or the legal decisions on the point is said to be an order or judgment per incurium. We are not inclined to hold that the judgment rendered by this Court in an unreported case of Moulvi Iqbal Haider (supra) is per incurium. The famous case of Abdul Razzak (supra) deals with the different regulations pertaining to the Regulations, 1979 and still holds the field, lends support to the case of the appellant. The facts of referred cases are quite distinguishable are not applicable to the facts of present appeal. Reverting back to the provisions of Regulation 17 of KB and TP Regulations, 2002, we would like to observe that the "Interim Control Area" is to be declared after seeking approval of the Provincial Government and through a notification for any of the following purposes:--- ..17-3 A .1. To prevent haphazard and unplanned development in areas lacking adequate:---
(a) Water supply, sewerage, or drainage facilities;
(b) utilities; electricity, gas, telephone;
(c) health, educational and other municipal services or facilities;
(d) road net works and public transport:---- ' The learned counsel appearing for the private respondents have cited unreported decision of a learned Division Bench of this Court in C.P.No,D-1527/06 (Moulvi Iqbal Haider and another v. Chief Controller of Buildings and others) which is in regard to the same property as involved in the instant appeal . The question of interim control area regarding the subjects, property was raised by the petitioners in the C.P. Which was not approved by a Division Bench resultantly vide order, dated 27-3-2007 the said constitutional petition calling in question the amalgamation of subject plot and raising of multistoreyed building in the interim control area was dismissed. Following observations of a Division Bench of this Court in C.P. No,D-1527/06 are relevant for disposal of instant appeal.
8. ' ........................ Contention of learned counsel for the petitioner is that as Abdullah Haroon Road has been declared as an "Interim Control Area", therefore, construction of 17 multistoreyed buildings in the area would be a continuous cause of inconvenience but except pleading so learned counsel failed to call our attention to the inadequate basic facilities, in the area or the haphazard and unplanned development which respondent No,5 intends to raise on the plot to come in the way as defined in Regulation 17-3 of the Karachi Building and Town Planning Regulations, 2002.
9. ' Regulation 17-3 of Karachi Building and Town Planning Regulations, 2002 says that MP& ECD after approval of the Government may, by notification, declare a specified area to be an Interim Control Area for the purpose as mentioned in Article 17-3.1.1. Neither the notification as pointed out by the petitioner said to have been issued in this regard has been placed by him on record nor the purposes for which an area is declared as. Interim Control Area has been specifically indicated to make the Regulations 17-3applicable in the matter . .. ..."
10. ' In the present case also, the appellant was not able to bring her case within the ambit of Regulation 17. We do not find any reason to depart from the earlier view taken by earlier Division Bench of this Court. Reliance is placed on the case of Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 case of Ardeshir Cowasjee v. K.B.C.A. 1999 SCM R 2883 rel. At 2912.
11. ' It is an admitted fact that shops of appellant from where she is claiming access is situated on Garden Road (Sir Aga Khan Road) while the other end of the building is situated on Sir Abdullah Haroon Road, therefore, the said building has two access from main roads. Indeed, the Provincial Government is competent to declare any specified area as an Interim Control Area prohibiting raising of multistoreyed building but for that purpose there should be a notification which has not been placed before this Court regarding Aga Khan Road or Abdullah Haroon Road, hence, we are not convinced that the construction has been raised in any Interim Control Area.
12. ' Mr. Khawaja Shamsul Islam has taken us through several documents placed on record, defended the impugned order. According to him, the appellant is owner of two illegally constructed shops against which several litigations are still pending, both the shops are lying sealed by the order of K.B.C.A. He has referred to the registered sale-deed in favour of appellant and contended that she became owner of the two shops by the end of the year 1996 had no right to seek restraint for raising construction which is lawful on frivolous and baseless pleas. Regarding appellant's right, he has placed reliance on the case of Abdur Rahman Mughal v. Abdul Wahid 1984 SCM R 791. Mr. Khawaja Shamsul Islam has further argued that the Courts are only competent to interfere when there is clear violation of Sindh Building Control Ordinance, 1979 or Building Regulations, 2002 and has placed further reliance on the cases Noor Hassan v. Tufail Ahmed, reliance on the cases 1980 SCM R 144 and Mst. Zarina v. Province of Sindh 2004 CLC 767. Mr. Rasheed A. Razvi, has also supported the impugned order contended that it is an appeal arising out of an interim order and not a Constitutional petition, therefore, the appellant cannot travel beyond her pleadings. He has referred to the contents of the plaint wherein the entire grievance of the appellant is that "open passage" leading to her shops would be destroyed due to the construction. However, it was rightly contended by the counsel for the private respondents that the appellant had failed to assert any easementary right in respect of open space contained in section 15 of the Easements Act, 1882, which provides that in order to claim a right of passage, a person should be in continuous peaceful and open use for more than twenty years of that right of way without interruption which is not pleaded by the appellant.
13. ' Mr. Rasheed A. Razvi, learned counsel for respondents Nos. 1 to 14 has also drawn our attention to the order, dated 1-12-2006 passed by this Court in the above appeal, which read as follows:--- ' .. At the hearing today, Mr. Badar Alam, clarified that he was not aggrieved by the constructions being raised on the Plot bearing No,G/1-B. He relied upon the written statement of respondent No,20 to the effect that the said plot had not yet been allotted to anyone.
14. ' Indeed the appellant does not appear to have title in the said plot and constructions be raised only by the respondent. Nevertheless, appellant has raised the plea that the construction being effected by the respondents has blocked his passage to Plot No,34 and, therefore, the Commissioner appointed by the Court is due to examine whether the appellant's passage into Plot No,34, is being effected by the aforesaid construction. Report to be submitted within two weeks and an officer of the Board of Revenue may be associated"
15. ' No review or appeal was preferred against the above order. However, Mr. Naimur Rehman, has superseded Mr. Badar Alam Advocate, on 16-12-2007 sought amendment in the order, dated 1-12- 2006 to the extent of Plot No,33 instead of 34, did not raise any objection to the statement of his'predecessor counsel. Now the entire case has been argued contrary to what has been earlier observed by this Court on 1-12-2006. According to Mr. Razvi, the open passage mentioned in the amalgamation order and as per Commissioner's Report is still intact, no hardship or prejudice is likely to be caused to the appellant, which has been fully protected in the impugned order. It is pertinent to note that vide impugned order the rights of the appellant as to the open passage was fully protected through following observations:--- Mr. Khawaja Shamsul Islam, further states that he will not interfere in any manner with the properties of the plaintiff, who will be free to use and enjoy his properties and will raise construction strictly in accordance with the plan approved by KBCA. Since, the title of the plots owned by the private defendants are not in dispute and they possess approved plan, they may raise construction strictly in accordance with the approved plan at their own cost and risk. Further, the defendants Nos.1 to 17 will not in any manner interfere with the possession of plaintiff over his properties and during the course of construction will not cause any damage to the properties of the plaintiff and will not post security guards to deprive the plaintiff from enjoyment of his properties ..... ..."
16. ' After considering the case-law cited by both the parties, we are of considered view that the appellant has failed to 'point out any illegality or B irregularity' in the impugned order does not call for interference, therefore, on 1-4-2008 through a short order the appeal was dismissed with no order as to cost.
17. ' Above are the reasons for the said short order.