' MUHAMMAD TASNIM, J.---Through this order, I shall dispose of application (C.M.A.No,2352/2007) under Order XXXIX Rule 1 & 2, C.P.C., whereby plaintiff has prayed for restraining the defendants and/or any one acting on their behalf from making any construction as the same even prima facie is illegal and in violation of the rights of the plaintiff and for further restraining the defendants from acting in any form or manner whereby prejudicing to the interest of the plaintiff be caused on the two plots of land bearing D-205 and D-206 K.D.A. Scheme No, 1-A, Karachi till the final disposal of the suit. The aforesaid application was taken up by the court on 27-3-2007 and parties were directed to maintain status quo till the next date of hearing.
2. Facts leading to the present case as set out in the plaint are as under:
3. The plaintiff is owner of property bearing No,D-199, KDA Scheme No,1-A, Karachi having purchased the same in the year 1987. The defendants Nos.1 and 2 are the owners of plot No,D-205 and 206, KDA Scheme No,1-A, Karachi. The aforesaid two plots are situated on the back side of the plaintiff's house and said two plots cover the entire back side of the plaintiff's property. It is further case of the plaintiff that at the time of purchase of property by defendants Nos.1 & 2 the plots bearing Nos.D-205 and 206 were having double storeyed structure. There was compulsory open space in between the two construction providing space for air to plaintiff property, which was being enjoyed by the plaintiff and was only source of air for plaintiff on the west side. The height and opening of the said independent bungalows were also not in such a manner that the privacy of the plaintiff was on any exposure. It is further case of the plaintiff that defendants Nos.1 & 2 demolished earlier structure standing on plot No,D-205 and 206 and started raising construction in a way that blocked the flow of air to the plaintiff's property. It is further case of the plaintiff that he approached City District Government, Karachi for appropriate legal action, but having failed in his objectives present suit was filed for Declaration and Permanent Injunction against the defendants.
4. From the perusal of the original plaint, it appears that same was presented in court on 26-3- 2007 and City District Government Karachi, was not party to the proceedings, but Cantonment Board Faisal was cited as defendant No,3. It further appears that City District Government, Karachi was joined in the proceedings in pursuance of order dated 19-1-2010.
5. After service, the defendants Nos.1 and 2 contested the proceedings by filing their written statement and also filed counter-affidavit to the present application.
6. It is stated by defendants Nos.1 & 2 in the counter-affidavit that plots bearing Nos.D-205 and 206 measuring 600 Sq. Yards each were purchased by defendants Nos.1 and 2. It is further case of the defendants Nos.1 and 2 that after acquiring both the plots construction of residential bungalows was being raised by the defendants Nos.1 and 2 considering the number of family members and need of the family. Defendants Nos.1 and 2 decided to raise construction on both the plots in amalgamated position. The amalgamation of the plots was obtained which has not caused any prejudice to any right to any person. It is further case of the defendants Nos.1 and 2 that amalgamation was applied and after completion of all the legal formalities the competent authority amalgamated both the plots and were allowed one number D-205 measuring 1200 square yards and revised plan was also issued for D-205 measuring 1200 square yards. After getting the sanction for raising the construction, the construction started. It is further case of the defendant that City District Government, Karachi all of sudden withdrew order of amalgamation dated 14-3-2010 but the same was restored subsequently. From the record it further appears that the area, where the plot of defendants Nos.1 and 2 is located does not fall within the jurisdiction of City District Government Karachi, but the same was transferred to Cantonment Board Faisal.
7. The Cantonment Board Faisal after service also filed their submission in writing in compliance of order dated 9-4-2009 along with number of documents stating therein as under:--- "1. That the Cantonment Board Faisal on concurrence of the competent authority, conveyed through his letter No, 12/ 56/Part - 54/DKR/ Faisal/18 dated 30-4-2008 informed to the Defendant for regularization of illegal construction with directions to deposit the regularization fee through letter No,14/J/D-205/KDA SCH-1-A/3665 dated 3-5-2008. (Photostat copies of letters dated 30-4- 2008 and 3-5-2008 are enclosed herewith and marked as A and B).
2. That on deposit of composition fee, the Cantonment Board Faisal informed the Defendant as such, the regularization plan has been duly approved. (Photostat copy of letter No,14/J/D- 205/SCH-1- A/4923 dated 17-7-2008 is enclosed herewith and marked as C).
' That the Cantonment Board Faisal also allowed amalgamation of both the plots and remaining payment of Rs.50,000 was also paid vide its letter No, 20/J/D-205/KDA/Sch1-A Faisal Cantt. Karachi dated 24-11-2008 (Photostat copy of letter dated 24-11-2008 is enclosed herewith and marked as D).
4. That the Cantonment Board Faisal has also regularized the construction so raised and the same regularization was conveyed to the Defendant vide letter dated 14/J/D-205/SCH-1-A/4923 dated 17-7-2008 (Photocopy enclosed).
' It is therefore, prayed that this Hon'ble Court may be pleased to vacate the restraining order, enabling the Defendant No,2 to complete the remaining construction of a single storey house as all the illegality has already been compounded by the Cantonment Board and amalgamation of both the plots was also allowed, the house now has been constructed in compliance of all building bye- laws of Cantonment Board."
8. Mr. Mehmood Ahmed Khan, learned counsel for plaintiff has argued that Plots Nos.D-205 and 206 have been amalgamated illegally without approval of the competent authority. The construction by defendant Nos.1 and 2 has been raised on both the plots in a manner that complete open space in between two plots have been covered which has caused serious prejudice to the plaintiff and the passage for air to the plaintiff's plot has been blocked. He has further submitted that regularization granted by City District Government, Karachi and Cantonment Board Faisal has been recalled. Learned counsel for plaintiff further submitted that construction has been raised without seeking amalgamation from the relevant authority. In the end, learned counsel for plaintiff submitted that right of air and light has been infringed by the impugned construction raised by the defendants Nos.1 and 2 on their plots in dispute. However learned counsel for the plaintiff did not cite any case law in support of his contentions.
' On the other hand Mr. Khalid Ali Z. Qazi, learned counsel for the defendants Nos.1 and 2, has submitted that defendants Nos.1 and 2 being the owners of the suit plots have constitutional right to hold, possess and enjoy the property. He has further submitted that defendants No,1 and 2 are free to raise construction on their own plots in accordance with law. Learned counsel for defendants has submitted that both the plots were purchased by defendants Nos.1 and 2 and keeping in view of the family need both the defendants decided that construction of big bungalow be raised on both the plots, so that entire family of defendants Nos.1 and 2 be accommodated.
Learned counsel for the defendants Nos.1 and 2 has further submitted that compulsory open space on the all four sides of the plot has been left. Learned counsel for defendants Nos.1 and 2 has further argued that right of air and light to the plaintiff has not been obstructed by defendant Nos.1 and 2. Learned counsel has further submitted that amalgamation of the both plots have been granted to the defendants Nos.1 and 2 by the competent authority in accordance with law. The construction being raised by the defendants Nos.1 and 2 is strictly in accordance with the building plan. The deviation in the construction has already been regularized by the Cantonment Board Faisal. Learned counsel for defendants Nos.1 and 2 has placed his reliance on the documents filed by Cantonment Board Faisal along with their written submissions dated 8-5-2009 which have been quoted hereinabove. He has further invited my attention to the letter dated 30-4-2008, whereby Cantonment Board Faisal accepted the composition fee of Rs.20,17,384 and issued order for regularization plan of plot No,D-205 KDA Scheme No,1, Karachi. He has further invited my attention to a letter, dated 3-5-2008, whereby betterment charges of Rs.1,58,760 were paid by defendants Nos.1 and 2 to Cantonment Board Faisal. After accepting the above regularization fee plan was approved by the Cantonment Board Faisal. He has also invited my attention to the letter dated 24-11-2008, whereby fee of Rs.50,000 was received from defendants Nos.1 and 2 for amalgamation of both the plots mentioned above. Learned counsel for defendants Nos.1 and 2 has sulmitted that present suit has been filed with mala fide intention just to extract money from the defendants Nos.1 and 2. Learned counsel for defendants Nos.1 and 2 has submitted that plaintiff has no locus standi to file the present suit. Learned counsel for defendants Nos.1 and 2 has further invited my attention to the facts that back of plaintiff's plot and plots of defendants Nos.1 and 2 have common boundary wall. The air available to the plaintiff is from the front side and not from the rear side, whereas defendant Nos.1 and 2 are having air from their front side, so in any way no right of light and air of the plaintiff is being infringed or obstructed by construction raised by defendants Nos.1 and 2. Learned counsel for defendants Nos.1 and 2 has prayed that plaintiff has no prima facie case and no prejudice shall be caused to plaintiff if injunction granted earlier be recalled. He submitted that this application be dismissed having no merits and interim order passed earlier be recalled. In support of his contentions, learned counsel for the defendants Nos.1 and 2 has relied upon the following case law:---
(1) Syed Tahir Hussain Mahmoodi v. Tayyab and others (2009 CLC 1254).
(2) Messrs Al-Munaf Corporation v. Sindh Industrial Trading Estate Ltd. And others (2009 CLC 950).
(3) Syed Ali Asghar and others v. Creators (Builders) and others (2001 SCMR 279).
(4) Justice (Retd.) Dorab Patel and others v. Karachi Building Control Authority and others (2001 SCMR 731).
(5) Muhammad Tariq v. Bank of Punjab and another (2004 CLD 162).
(6) Mrs. Alba d'sa and others v. Mrs. Naheed Pabani and others (2008 YLR 738).
(7) Moulvi Iqbal Haider and another v. Chief Controller, Karachi Building Control Authority and others (2008 YLR 2031).
(8) Ardeshir R. Cowasjee and others vs. CDGK and others (2008 CLC 1166).
(9) Nawab Muhammad Jahangir Khanji v. Messrs Abeeda Enterprises (2008 MLD 1366).
(10) Mst. Seema and others v. Messrs Millennium Developers and others (2003 CLC 632).
(11) Nazaz Ali (Nazar Ali's case) (2002 CLC 1464).
(12) Muhammad Asif v. Controller of Buildings, KBCA Karachi (PLD 2002 Karachi 405).
(13) Mst. Jamila v. Messrs Yadgar Service Station/Caltex Petrol Pump and others (2009 YLR 2018).
(14) Jawad Mir Muhammadi and others v. Haroon Mirza and others (PLD 2007 Supreme Court 472).
(15) Haji Fazal-I-Raziq v. Syed Zaman Shah and others (PLD 1980 Supreme Court 193).
10. Mr. Ashraf Ali Butt, learned counsel for defendant No,3, has supported the case of the defendants Nos.1 and 2 and has stated that Cantonment Board Faisal has acted strictly in accordance with the bye-laws titled as Cantonment Board Faisal, Karachi, Building Bye-Laws, 2008. Learned counsel for defendant No,3 has further submitted that amalgamation was done under the provisions of Article 141 of the Bye-Laws and regularization was effected under Article 16 of the Bye-Laws. Learned counsel for defendants Nos.3 has supported the case of defendants Nos.1 and 2 and submitted that independent construction is being raised in accordance with law and the minor deviations have already been regularized. He has further submitted that since plaintiff's plot is located on the back of defendants No,1 and 2 hence question of obstruction to air or light does not arises.
11. Learned counsel for C.D.G.K. Has stated that area where subject property is located is falling under the Cantonment Board Faisal; hence they have no say in the matter.
12. I have heard the arguments of learned counsel for the parties and have perused the record and the case law.
13. From the perusal of record, it appears that defendants Nos.1 and 2 have purchased the property and have obtained amalgamation of both the plots from competent authority. Approved building plan was obtained from the competent authority and thereafter raised construction.
' After raising construction some minor deviations were found, which stood regularized by the Cantonment Board Faisal after charging heavy fee from defendants Nos.1 and 2. No illegality in the exercise of power by Cantonment Board Faisal could be pointed out by the learned counsel for the plaintiff. Since defendants No,1 and 2 have already left compulsory open space on all four sides of the amalgamated plot, question of blocking air to the plot falling on the rear side of plot of defendant Nos.1 and 2 does not arise. Since compulsory open space by defendants Nos.1 and 2 has been left on their rear side, which is also rear side of the plaintiff's plot, the well for air is created for the enjoyment of air by the plaintiff. The contention of learned counsel for plaintiff that light and air to plaintiff property shall be obstructed such contention of the learned counsel can be proved by leading evidence. At present no such material is available.
14. In the case of Jawad Mir Muhammad supra the Hon'ble Supreme Court of Pakistan while dealing with the provisions of KDA Order 1957 so also provisions of Easements Act and constitutional provisions with regard to enjoyment of property by a citizen of Pakistan has held as under:--- "24. As regards the right of privacy it is pertinent to note that this Court in the case of Haji Fazal-i- Raziq v. Syed Zaman Shah and others PLD 1980 SC 193 held that likelihood of any person having opportunity of overlooking the property of the other from the window of the upper storey of his property would not be a sufficient ground to hold that there was interference in the enjoyment of the property or it would amount to interference in his privacy or easementary rights.
25. As regards the deprivation of the rights to light, fresh air and clean environment, it is noted that infringement of such rights can be established only by producing satisfactory evidence and not merely on the statements in the pleadings of the affected party. There is no material on record to prove the allegation of the appellants relating to deprivation or violation of the above easementary rights by construction of the alleged illegal floors. It is their unfounded apprehension based on subjective and abstract consideration. The hardships, inconvenience, or discomfort likely to result by the building in question must be more than "mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material". The appellants have failed to prove infringement of their rights of privacy, light, fresh air and pollution free environment as thereis no material to substantiate their infringement. "
13. Similarly, the Hon'ble Supreme Court of Pakistan in the case of Syed Ali Asghar supra has dealt with the constitutional provisions with regard to holding and enjoying the property so also the Buildings Control Regulations has observed as under:- ".......We cannot decide in this petition whether the act of grant of permission in respect of change in use of plots by Federal Government prejudiced the determination of matter/petiticn before the learned Division Bench of High Court as it would require investigation, enquiry and evidence so as to arrive at the conclusion whether there has been contravention of Article 204(2)(c) of the Constitution by the respondents but the learned members of the Division Bench of the High Court were justified in considering the factum of grant of permission for change in use of plots considering that under the law the court could take notice of the changed circumstances and subsequent events relevant for the determination of controversy between the parties. However, in case the petitioners consider that the respondents have contravened the provisions of the Constitution, they would be at liberty to approach the proper forum for taking action against the respondents in accordance with law. It be noted that even under K.D.A. Order, 1957 and Buildings Control Regulations, the competent authority is invested with power to grant permission for change in use of the plots for the benefits of the people therefore, it could not be said that there is absolute bar to the grant of such permission. In the instant case, such permission has been granted by the Government of Pakistan, Ministry of Housing and Works and it has not been shown that such permission was not in the benefit of the people. The counsel for the petitioners has not brought evidence to show that the required approval and NOCs were not duly obtained by the respondents.
Mere fact that it has been alleged by the petitioners that approval and NOC were unlawfully obtained would not make the same to be unlawful or without jurisdiction in absence of legal and valid material on record considering that under Article 129 of the Qanun-e-Shahadat the legal presumption would be that the judicial and official acts have been regularly performed. The respondents have filed a number of documents in the supplementary paper book which would show that the respondents have got the plots commercialized from the concerned authorities on payment of required fees and K.B.C.A, also granted approval for raising building after getting the required public notices published in daily newspapers and the respondents also obtained NOCs from the civic agencies for the supply of amenities in respect of the building to be raised in accordance with the approved plan. "
16. Similarly, a learned Division Bench of this Court in the case of Moulvi Iqbal Haider supra after examining the law on the subject and also examining the provisions of Karachi Building and Town Planning Regulations has come to the following conclusion:- "Upshot of the above discussion is that no material establishing illegality has been placed by the petitioners before us in getting the NOC for amalgamation of plots and in seeking approval of the building plan. Respondent No,5 did all in legal manner. The K.B.C.A, has also not supported the allegations of the petitioner contained in the petition and has taken stand that construction was in accordance with the completion plan. Summing up all these facts, petition has no merits and was dismissed in limine along with the listed application. "
17. In the case of Mrs. Alba D'SA a learned Single Judge of this Court also examining the provisions of sections 42 and 54 of Specific Relief Act so also provisions of Karachi Buildings Control and Town Planning Regulations, 2002 has observed as under:- "I did not find any illegality or irregularity in raising multistoreyed buildings on plots in question as the permission to construct multistoreyed buildings and approval of building plan was done by the authorities enjoying powers to do so under Sindh Buildings Control Ordinance, 1979 read with Karachi Buildings Town Planning Regulations 2002. Furthermore the defendants being owners of the plots in question have acquired fundamental rights to hold and enjoy the property rights as guranteed under Articles 4 and 23 of the/ Constitution and in protecting or safeguarding the rights of easement, privacy and peaceful enjoyment of the plaintiffs, the fundamental rights of thedefendants in respect of ownerships of their plots could not be violated or infringed. "
18. It is settled law that while deciding the application under Order XXXIX, Rules 1 and 2 C.P.C., plaintiff has to make out prima facie case and show to the Court that serious injury or the irreparable loss shall be caused to him if injunction as prayed for is not granted. In the present case from the perusal of record, it appears that amalgamation of both the plots have been obtained by defendants Nos.l and 2 in accordance with law. It further appears that after seeking approval of building plan from the relevant authority construction has been raised by defendants Nos.l and 2 in accordance with approved plan. Minor deviation in construction has been regularized by the relevant authority hence it appears to me that no case for grant of injunction is made out.
19. Consequently, this application merits no consideration and it is accordingly dismissed. Interim order passed on 27-3-2007 is hereby recalled.
20. In view of above order C.M.A. No, 5587 of 2007 (under Order XXXIX, Rule 4 C.P.C.) is allowed.
C.M.A. No,7605 of 2008 (under Order XXXIX, Rule 2(3), C.P.C, read with section 3 of Contempt of Court Act) has become infructuous and is disposed of accordingly.