' MUHAMMAD TASNIM, J.---This is an application (C.M.A. No,7352 of 2009) under Order XXXIX rules 1 and 2 C.P.C. Read with section 151, C.P.C. Filed by plaintiff, praying therein that defendants Nos.2 and 3 be restrained, prohibited, enjoined the car parking and/or not to sale, to rent, to transfer or hand over the car parking area/basement of the building Tahir Avenue or to create third party right in any manner accepting to use of the car parking under approved plan of the building till disposal of the case.
2. Facts leading to the present application as set out in the plaint are that plaintiff is registered association of flat owners/occupants and office holders of Tahir Avenue of Plot Survey Sheet No,SR- 13, 1/2, situated at Serai quarter Muhammad Bin Qasim Road, Karachi. It is stated by the plaintiff that the said building was constructed after obtaining the approved building plan dated 26-3- 1986. Under approved building plan an area of about 3344 square feet was reserved for car parking in the basement for 13 cars. After completion of multi-storey building of the aforesaid plot defendant No,1 sold out all the flats and office of the building to the respective purchasers. It is further case of the plaintiff that defendant No,4 unauthorizedly converted car parking into commercial use by installing heavy machinery printing press under the name and style of Messrs Ilyas Press (Pvt.) Limited. It is further case of the plaintiff that the occupants of building approached defendant No,5 (K.B.C.A.) to take action against defendant No,4 for using the car parking for commercial purpose. It is further claimed that notice dated 22-5-2008 and 5-7-2008 were served by K.B.C.A. It is further stated in the plaint that one of the occupants filed Constitutional Petition No,D-1007 of 2007 before this Court. The learned Division Bench, who heard the aforesaid constitutional petition, passed several orders in the aforesaid petition. It is further case of the plaintiff that against such orders, a petition for leave to appeal was also filed before the honourable Supreme Court of Pakistan. It is further stated in the plaint that honourable Supreme Court of Pakistan vide order dated 2-12-2008 disposed of C.P.L.A. By consent of the parties. It is further case of the plaintiff that in consequences of the order, dated 2-12-2008 passed by honourable Supreme Court of Pakistan, present suit has been filed for Declaration, Cancellation of sale-deed in favour of defendants Nos.2 and 3 and seeking injunction against aforesaid defendants. Along with suit an application under disposal was also filed.
3. After service of notice of said application defendants No,2 filed his counter-affidavit to the said application, stating therein that parking area in the basement has been purchased by him vide registered sale-deed dated 21-12-2006 and such area was under occupation of Ilyas Press who was tenant of the builder prior to purchase by defendants Nos.2 and 3. After purchase of the basement by defendants Nos.2 and 3, defendant No,4 became their statutory tenant. It was further stated in the counter -affidavit that two notices dated 22-5-2001 and 5-7-2001 were served upon the defendant No,4, who challenged the same through Suit No,82 of 2002 before learned Vlth.
Senior Civil Judge, Karachi South, who vide judgment dated 23-11-2006 decreed the suit. It was further stated that no appeal was filed against judment and decree passed by learned VIth Senior Civil Judge, Karachi south in Suit No,82 of 2002. It is further stated that C.P.No,D-1007 of 2007 was filed by one of the occupants against llyas Press and K.B.C.A. And others, but defendants Nos.2 and 3 were not party in those proceedings. It is further stated that in consequences to the order passed on 24-9-2008 in C.P.No,D-1007 of 2007, the K.B.C.A. Sealed the property. It is further stated in the counter-affidavit that order, dated 20-8-2008 and 9-9-2008 passed in C.P.No,D-1007 of 2007 were challenged before the honourable Supreme Court of Pakistan through C.P.L.A. No,393-K of 2008.
Such petition was heard by the Honourable Supreme Court of Pakistan and by consent of the parties same was disposed of in the following terms:- "In the circumstances all the learned counsel agreed that this petition could be disposed of if the petitioner undertook to use the area in question as parking area strictly in accordance with the law and the approved plan. Learned counsel for the petitioner appears to be amenable to the said suggestion.
(2) Accordingly, we would convert this petition into an appeal and pass an order to the effect that only the property would be de-sealed and the petitioner who is stated to have purchased the parking area will use the same only for the purpose of car parking in accordance with the approved plan and respondent No,3 would hand over the possession to the person from whom it was obtained. In case of any violation of the aforesaid undertaking, the respondent No,3 would be at liberty to take action in accordance with the law. At the same time, respondent No,1 will be free to seek recourse against the builder for any violation of terms of the agreement of sale and seek appropriate remedies."
4. It is further stated in the counter- affidavit that another C.P.L.A. Being C.P.L.A. No,475-K of 2008 was also filed by the defendants Nos.2 and 3. Aforesaid petition was also disposed of vide order dated 2-12-2008 in the following terms:-- "4. The above final order has been called in question by the petitioner on various grounds through this petition which was directed to be heard along with C.P.No,393-K of 2008. The main controversy between the parties has been resolved through a consent order in the latter petition wherein the order sealing the property has been set aside and Mr. Khalid Javed, learned counsel for the petitioner and the respondent No,5 (petitioner in C.P.No,393-K of 2008) has undertaken that the area in question would be used for car parking in accordance with the approved plan and the respondent No,3 would hand over the possession to the person from whom it was obtained. It was further resolved that in the event of breach of undertaking the respondent No,3 would be at liberty to take action in accordance with the law and the respondent No,1 could seek recourse against the builder for any violation of the terms, of the sale agreement and seek appropriate remedies."
5. Mr. Shaukat Hayat, learned counsel for plaintiff has submitted that builder/defendant No,1 has illegally sold out the basement which is the parking area and meant for the use of parking of car by occupants of the building. He has argued that parking area cannot be used for commercial purpose. He further submitted that builder had let out the basement to Ilyas Press, defendant No,4, who was maintaining press in the parking area. He further invited my attention to the notices issued on 22-5-2010 and 5-7-2001 by K.B.C.A. He argued that no doubt honourable Supreme Court of Pakistan while disposing of the C.P.L.A. No,393-K of 2008 had ordered for de-sealing of the property and it was further ordered that defendants Nos.2 and 3 who are stated to have purchased the parking area will use the same only for the purpose of car parking in accordance with the approved plan and K.B.C.A. Would hand over the possession from whom it was taken. Learned counsel has emphasized that the word "use" by honourable Supreme Court of Pakistan in the above-mentioned order includes the use of basement/car parking by all the occupants of the building and not only by defendants Nos.2 and 3. Learned counsel has further submitted that all the occupants being the owner of the property have right to park their cars in the basement which is parking area meant for the occupants. He has further argued that basement, which is parking area is amenity and such basement/car parking space is to be used by all the occupants commonly. Learned counsel for plaintiff argued that basement cannot be restricted to the use of defendants Nos.2 and 3 only.
6. In support of his contention, learned counsel for plaintiff has relied upon the following case-law:- -
(1) Queens Road Lane v. City District Government and others 2006 CLC 272
(2) Muhammad Anas Kapadia and 19 others v. M. Farooq Haji Abdullah and 5 others 2007 CLC 943 and
(3) Dr. Hasan Mahfuz Jalisi v. Khawaja Moinuddin and others 2006 SBLR (Sindh) 843.
7. On the other hand Mr. Khalid Javed, learned counsel for defendants Nos.2 to 4 has submitted that notice dated 22-5-2001 and 5-7-2001 issued by K.B.C.A. To defendant No,4 were challenged before the VI-Senior Civil Judge, Karachi South through a Suit No,82 of 2002. He further submitted that after recording evidence of the parties, learned VI-Senior Civil Judge, Karachi South decreed the aforesaid suit. He further submitted that defendant No,4 Ilyas Press was sitting tenant of the builder (defendant No,1) but after the purchase of the basement by defendants Nos.2 and 3 said Ilyas Press became the tenant of defendants Nos.2 and 3. Learned counsel further submitted that defendants Nos.2 and 3 have purchased basement/parking area from the builder under registered sale-deed, dated 21-12-2006 hence they are entitled to use the same exclusively. He further argued that no other occupant of the building has right to use the basement/parking area as defendants Nos.2 and 3 hold the aforesaid property in their own right under registered instrument. Learned counsel for defendants Nos.2 and 3 has further invited my attention to order dated 20-8-2008 and 9-9-2009 passed by learned Division Bench of this Court in C.P.D.-1007 of 2007 and argued that defendants Nos. 2 and 3 had challenged the aforesaid two orders through C.P.L.A. No,393-K of 2008, which was allowed by consent of the parties on 2-12-2008 by the honourable Supreme Court of Pakistan in the terms quoted hereinabove. Learned counsel for defendants Nos.2 and 3 have submitted that claim of the plaintiff to use the parking area commonly by all the occupants is not a right available to the other occupants of the building. He further submitted that honourable Supreme Court of Pakistan while disposing of the C.P.L.A. No,393-K of 2008 has clearly stated that property has been purchased by defendants Nos.2 and 3 under the registered instruments and honourable Supreme Court of Pakistan issued direction to K.B.C.A. To de-seal the parking area and to deliver the possession of basement to defendant Nos. 2 and 3. He further pointed out that defendants Nos.2 and 3 had undertaken before the honourable Supreme Court of Pakistan that they will use the basement/parking area in question as parking area strictly in accordance with law and the approved plan. He further argued that since the defendants Nos.2 and 3 hold the property in their own right, plaintiff has no right to claim parking in the basement, which is property of defendants Nos.2 and 3.
8. I have heard the learned counsel for the parties and have gone through the record as also case- law cited by learned counsel for plaintiff.
9. From the perusal of the record, it appears that building was constructed after obtaining approved building plan. It further appears from the record that provision of car parking was made in the basement. It further appears from the record that the builder had originally rented out the basement to defendant No,4. It is also established on record that defendant No,1 had sold out the basement/parking area to defendants Nos.2 and 3 under the registered instruments. Number of proceedings were initiated against the use of the basement before different forums. Finally issue was set at rest by the honourable Supreme Court of Pakistan in view of undertaking given by the defendants Nos.2 and 3 in C.P.L.A. No,393-K of 2008 that area in question shall be used as parking area strictly in accordance with law and the approved plan. Honourable Supreme Court of Pakistan allowed the appeal by consent had ordered that property be de-sealed and the defendants Nos.2 and 3, who had purchased the parking area, will use the same only for the purpose of car parking in accordance with approved plan and K.B,C.A. Was directed to hand over the possession of basement to the defendants Nos.2 and 1 It was made clear by the honourable Supreme Court of Pakistan that in case of any violation of aforesaid undertaking the K.B.C.A. Would be at liberty to take action in accordance with law. At the same time the plaintiff was left free to seek recourse against the builder for violation of terms of agreement to sale and seek appropriate remedy. It appears that present suit has been filed in consequence to aforesaid order.
10. Since the possession of basement was handed over to the defendants Nos.2 and 3 by honourable Supreme Court of Pakistan in view of undertaking of defendants Nos.2 and 3 that they will use the same exclusively for parking purpose. The defendants Nos.2 and 3 have the right to use the same as owners. Once the honourable Supreme Court of Pakistan has granted permission to the defendants Nos.2 and 3 for using property for parking purpose, no relief can be granted to the plaintiff as there appears no legal right of the plaintiff in the parking area. Apart from the above, learned counsel for defendants Nos.2 and 3 invited my attention to the sublease of one of the occupants appearing at page 85 of the record particularly clause No,10, whereof is quoted hereunder:-- "Nor without the like permission, the sub-lessees(s) will have any right, title or interest on the basement, ground floor premises of the lessee, nor access or use to the roof of the seven storeyed building, provided always that the lessees shall continue to be in absolute control of the basement as well as the top roof of the building."
11. From the reading of the above quoted clause of the sub-lease issued to the occupant of the building, it is clear that sub-lessee shall not have any right, title or interest on the basement, ground floor premises of the lessee, nor access or use to the roof of the seven storeyed building, provided always that the lessees shall continue to be in absolute control of the basement as well as the top roof of the building. The close examination of above quoted clause of the sub-lease would show that it creates no right in any of the members of the plaintiff association in respect of basement and/or roof-top. It appears that for this reasons alone the plaintiff has not placed on record the copy of the sub-lease issued to them. Said document has been brought on record by defendants' side. The conduct of the plaintiff is not above the board. The plaintiff has not approached the Court with clean, hands. On this ground alone they will not be entitled for the discretionary relief.
12. Judgments cited by learned counsel for the plaintiff have been examined and none of the judgments is applicable to the present case as reported judgments are distinguishable on facts and do not apply to the present case. Consequently the plaintiff has failed to make out, prima facie, case for grant of injunction as prayed for.
13. I had dismissed the aforesaid application by short order today i,e, g 26-5-2010 and these are the reasons for the same.