1. ' The plaintiffs have applied for an interim injunction restraining the defendants 1 and 2 their agents, servants, contractors, employees or any person/ persons acting through or under them from raising and/or continuing to raise any construction on Plots Nos. 27, 28 and 29, Sharafabad, Shaheed-eMillat Road, Karachi, till the final disposal of the suit. This application was originally heard by me on 14-10-1980 and orders were reserved. On 18-10-1980 an application under section 151, C. P. C. (C. M. A. No, 4579/80) was presented by defendants 1 and 2, praying that documents annexed to the application be brought on record and considered while deciding application for grant of interim injunction. Notice of this application was given to plaintiffs who have filed counter affidavit opposing grant of this application. I heard this application as well as application for grant of interim injunction on 24-11-1980.
2. I will first deal with C. M. A. No, 4579/80 filed by defendants 1 and 2. By this application the defendants are seeking production of a photostat of letter from Karachi Development Authority dated 4-2-1980 addressed to Chief Officer Karachi Co-operative Housing Society Union Limited, approving amalgamation of Plots 27 and 28, Block 3, Bihar Muslim Housing Cooperative Society.
3. The other document is the site plan showing the amalgamated plot. This application under section 151, C. P. C. Is opposed by the plaintiffs on the grounds that by producing these documents the defendants are trying to improve upon their case. The documents sought to be placed on record by the defendants are the official documents and it is not contended by the learned counsel for the plaintiffs that they have not been issued by the K. D. A. Or are forged. The suit is still at a stage of preliminary hearing and defendants can otherwise produce these documents at the trial of the suit. I accordingly allow the application and permit the defendants 1 and 2 to produce these documents.
2. C. M. A. No, 3682 of 1980 is under Order XXXIX, rules 1 and 2 read with section 151, C. P: C, The plaintiffs have claimed in this application that the plots bearing. Nos. 27, 28 and 29 situated in Sharafabad, Shaheed-eMillat Road,. Karachi, situated. Opposite Plots Nos. 30 and 31 owned by the plaintiffs, were residential plots on which residential buildings were constructed at the time the plaintiffs purchased their houses. It is contended by the plaintiffs that the plots, namely the plots of the plaintiffs and the disputed plots along with a large number of other plots adjacent to it were reserved for residential purposes under a scheme duly approved by the Ministry of Works Government of Pakistan who are the owners of the land. It is specifically alleged that the plaintiffs while purchasing their plots had the assurance that the area where they are purchasing the plots is residential and that the construction on these plots could not be raised beyond 2 storeys (ground plus one). It is alleged that recently the defendants 1 and 2 demolished the residential bungalow constructed on Plots Nos. 27, 28 and 29 and are now raising a multi-storeyed commercial complex on these plots consisting of shops and commercial premises. It is also alleged that the defendants 1 and 2 claim to have obtained approval of K. D. A. And the Building Control Authority but it is contended that the alleged approval and sanction are illegal and without any lawful authority. The plaintiffs have also challenged the conversion of these plots into commercial plots on the ground that it has been done in contravention of provisions of main agreement executed between the Government of Pakistan and defendant 3. In the main agreement executed between the Government" of Pakistan, Ministry of Works and the Karachi Cooperative Housing Societies Union Limited (defendant 3), in clause 2 it is specifically provided that the plan submitted by the defendant 3 in respect of Block 3 has been approved by the Government before the execution of the main agreement and for the remaining area the defendant 3 was to submit a lay out plan within six months of the execution of the main agreement. This clause in the main agreement also provided that once the Government accorded approval to the scheme, the defendant 3 will not divert thereafter any plot to any use other than that for which it has been approved except with the prior written consent of landlord. It is not disputed by the learned counsel for defendants 1 and 2 that no permission from the Ministry of Works who are admittedly the landlord has been obtained so far by them for using the disputed plots as commercial plots. It is also not disputed that in the original lay out plan of the area of the disputed plots are shown as residential plots but it is contended that K. D. A. Has allowed their conversion into commercial plots on payment of charges which has been recovered from defendants 1 and 2. It is accordingly argued by the learned counsel for defendants 1 and 2 jointly that the K. D. A. Having permitted the conversion of the plot as well as its amalgamation and that, defendant 3 also having consented to it, the plaintiffs have no locus standi to challenge the conversion of these plots to commercial use. It is also contended by these defendants as well as defendants 5 and 6 that in view of the provisions of sections 2 and 6 of the Sind Building Control Ordinance, 1979, as soon as-the authority under the Ordinance grant permission/sanction for construction of a multi-storeyed building it will have effect notwithstanding anything contrary contained in any other law or instrument and accordingly it is argued by the learned counsel that the permission/sanction granted to defendants 1 and 2 by the said Authority to construct a multi- storeyed building on Plots' Nos. 27, 28 and 29, has the effect of superseding clause (2) of the main agreement executed between the Government and defendant 3. The defendants 1 and 2 have also asserted that they have invested huge amount in purchasing the plot and in raising construction upto ground plus one store and as such they may be permitted to complete the building at their own risk. The defendants 1 and 2 gave a joint undertaking in writing on 16-11-198 that in the event of these defendants being allowed to construct the building as per approved plan they will not part with .The possession of the 3rd and 4th floor of the building facing plaintiffs' plots without permission of the Court and in the event of a final order made by the Court against them, they will demolish excess floor or floors facing the plaintiffs' house without claiming any compensation therefor. The above contentions of the plaintiffs and the defendants raise substantial questions of great importance which will have far reaching effect on quite a large number of cases, some of which, I am informed are in the final stages of hearing before this Court. The decision of these contentions at this stage of the suit is also not free from difficulty in the absence of evidence which is yet to be recorded in the case. I therefore, feel that decision on these contentions must await until final admission of this suit when sufficient material will be available to effectively, deal with them. What should therefore, be the interim order until final decision of suit, has engaged my anxious consideration in this case. Leaving aside the question of prima facie case in these circumstances, in my view to present application can be dealt with on consideration of the two other relevant factors namely the balance of convenience and irreparable injury, Examined in this context the cases of plaintiffs and defendants 1 and 2 I of the view that with a slight modification of the undertaking offered b defendants 1 and 2 in was case, the rights of the plaintiffs can be properly protected in this case. The plaintiffs have challenged the construction on Plots Nos. 27, 28 and 29, by the defendants 1 and 2 on the ground that the plots cannot be converted into commercial plot and that total construction thereon cannot exceed ground plus one storey. The defendants 1 and 2 have alleged huge investment on these plots and it is contended that every day that passes adds to the cost of construction. It is further contended by these defendants that as these premises are being constructed by defendants 1 and 2 for other persons who will be transferred these shops and premises on completion, if the construction is stopped, now, the defendants and the third parties will not only suffer on account of increased cost of construction but it will also lead to other legal complications. Who will therefore suffer more in these circumstances if the interim relief is withheld or granted? It is not disputed that if the suit is decreed in favour of the plaintiffs they can only restrain defendants 1 and 2 from using the building constructed on the plots for commercial purpose as well from using in any manner the construction raised in excess of permissible 'limit. But in the event of dismissal of suit the defendants will not only suffer a serious set-back in the time Schedule, set for completion of the construction but will also have to bear increased cost of construction which it is not possible to foresee now if the defendants are restrained from raising further construction on the disputed plots. Keeping in view the above consideration and the undertaking offered by defendants 1 and 2 during the course of hearing of the application, the following order in my view will meet the ends of justice in this case :- (i)That the construction to be raised by defendants 1 and 2 on Plots 27, 28 and 29, Sharafabad, Bihar Muslim Cooperative. Housing Society Limited, Shaheed-e-Millat Road, Karachi, will be solely at the risk and cost of these defendants 1 and 2 and in case it is finally decided in the suit that the defendants were not entitled to construct a commercial building on these plots and beyond the permissible limit of ground plus one storey the defendants I and 2 shall demolish such building at his own cost without claiming any compensation thereof.
(ii) That pending final disposal of suit, the defendants 1 and 2 shall not part with possession or transfer by way of lease/license or on ownership basis any of the premises in the above building to anyone.
(iii) That within three months of framing of issues the suit will be set down for regular hearing.
4. The application under Order XXXIX, rules 1 and 2. Read with section 151, C. P. C. Filed by the plaintiffs is disposed of in the above terms.