1. ' AJMAL MIAN, J.-By this common order, we intend to dispose of C. M. As. Nos. 2254/80, 2352/80 and 2356/80, filed in the three High Court Appeals, namely High Court Appeals Nos. 43, 44 and 45/80 .The brief facts leading to the filing of the above applications are that the appellants were putting up a multistoreyed construction comprising of one plus for storeys on Plot No, J. M. 366 (Old Survey No, 23/1), hereinafter referred to as the plot, which was purchased by the appellants on 17th March, 1979 from the legal representatives of late Dr. L. R. Khan, who was the transferee of the above plot and the construction thereon under a Permanent Transfer Deed, dated 21st January, 1962 from the Settlement Department. The above plot is situated in respondent No, l's society, namely, R. J.
2. Sehwani Co-operative Housing Society Ltd., hereinafter referred to as the Society, which is the lessee of the land of the K. M. C., out of which the plot and other plots were carved out.
3. ' The Society, Mst. Hawabai and Mst. Farida, the owner of neighbouring plot bearing new Survey No, J. M. 367 (Old Survey No, 23/2) filed Suits Nos. 1062/79 and 644/79 respectively. It may be pertinent to observe that an earlier suit was also filed by Mst. Farida, wife of Haji Samad, namely, Suit No, 82/80. In the above three suits, the parties have prayed for declaration and permanent injunction.
4. The Society in its suits is seeking the enforcement of negative covenants contained in the lease executed between the K. M. C. And the society, and which were binding on the original evacuee sub-ease namely, G. S. Kotwani, and in the above two suits filed by the above ladies, declaration and permanent injunction were soughat not only on the ground of breach of the terms of the sub- lease, but so on the ground of infringement of their easement rights namely, privacy, air and light.
5. In all the above three suits, an application for an adinterim injunction was filed. Our learned brother Naimuddin, J, by a common order, dated 16th July. 1980 under appeal, granted an ad interim injunction for restraining the present appellants defendants from constructing more than two storeys (ground plus one) and also for restraining them from letting out or parting with the possession of the shops already constructed till the decision of the suits. A However, the respondents/plaintiffs' request for restraining the appellants/ defendants from constructing over an area exceeding 1/3rd was declined, but it was clarified that the appellants/defendants would make such construction at their own risk and subject to the, final decision in the suits. Being aggrieved by the above order, the appellants have filed the aforesaid three appeals arising out of the aforesaid three suits. In the above High Court Appeals, the appellants defendants have filed three aforesaid applications under Order XLI, rule 5 read with section 121, C. P. C. Praying for the stay of the operation of the impugned order.
2. (a) In support of the above applications, Mr. Khalid Anwar, learned counsel for the appellants, has urged the following points :-
(i) that the lease deed executed between the Society and the Karachi Municipal Corporation containing the covenants not to construct more than two storeys and not to use the plot for any purpose other than for residential purpose do not hold ground, in view of the Government directive to the K. M. C. To permit additional storeys on charging fee contained in the notification dated 1st June, 1976 and because of section 2 of the Sind People Local Government Ordinance, 1972 and for the reason that the appellants have paid requisite fee i,e, about Rs, 50,000, and therefore, the respondents plaintiffs have no prima facie case.
(ii) That even otherwise the above negative covenants of the lease are not binding on the appellants as they are not the liensferee within the ambit of section 5 of the Transfer of Property Act.
(iii) That the respondents/plaintiffs' alleged right of easement, namely, privacy, light and air are not affected because of proposed construction.
6. ' The appellants/defendants have filed an affidavit dated 23rd August, 1980 in the above appeals, containing an undertaking to the effect that the appellants shall not raise construction of more than three storeys with a total height equal to the height of the adjoining plot owned by the plaintiffs in the two suits, and that they would only open the same number of windows on the side facing the building belonging to said Mst. Hawabai and Mst. Farida as they are facing the appellants' building, and that they shall not dispose of or let out the flats to be put up on the third storey. It has also been stated that two storeys have already been constructed, and while constructing these two storeys, the appellants have left the requisite space between the building and the boundary wall as per plan. In particular a minimum distance of 10 to 17 fts. Has been left on the side of the building owned by the plaintiffs in the two suits. Through the supplementary affidavit dated 26th August 1980 the appellants undertook to demolish the third floor to be constructed if so ordered by this Court. The respondents have filed counter-affidavit to the above affidavit.
(b) Messrs All Ahmed Fazeel and K.A. Ghani, learned counsel for the respondents have contended as follows :- (i)That the appeals are incompetent inasmuch as the appellants defendants before filing of the above appeals had not served the mandatory notice upon the respondents under Order XL1, rule 2, C. P. C.
(ii) That the appellants defendants being the successor of the original evacuee sub-lessee are bound by the terms of the lease, which prohibit the use of the plot for purposes other than residential and which also prohibit raising of more than two storeys and that the Society is entitled to enforce the above negative covenants of the lease.
(iii) That the owners of the adjoining plots situated in the Society have the right to ensure that the plot is not put to any other use than for residential purpose, and that more than two storeys are not raised and that these rights could not have been taken away either by the Karachi Development Authority and or by the Karachi Municipal Corporation.
(iv) That since the points involved in the hearing of the applications are same which will be agitated at the time of the hearing of the appeals, the applications should be taken up along with the appeals.
(c) We would not like to advert to the above contentions advanced by the learned counsel for the parties at this stage, as the same arguments would be advanced at the time of hearing of the above appeals and even in the pending suits. Any observation on the merits of the respective contentions of the parties may prejudice them. However, the question which requires cosideration is, as to whether the order of the learned Single Judge is to be maintained till the hearing of the above appeals or it is to be modified in terms of the undertaking offered by the appellants defendants mentioned hereinabove and specified in the affidavit dated 23rd August, 1980 and the supplementary affidavit dated 26th August, 1980 referred to hereinabove, to which the respondents are not agreeable in this context, it may be pertinent to observe that in pursuance of the direction of the Supreme Court given in C. P. S. L. A. No, K-240 of 1979 and also in pursuance of the orders passed by this Court in some pending cases, the above three suits, along with the other connected suits had come up for evidence before a learned Single Judge on 24th August, 1980. However, the above suits were adjourned to 17th September, 1980 by consent of the parties. In the meanwhile, the parties were to carry out admission and denial of the documents.
(d) The learned Single Judge has passed a detailed order in which various contentions raised by the learned counsel for the parties have been dealt with and the rulings cited have been discussed.
7. Flom the file of the suits, it appears that the above undertaking, which has been offered in this Court, was not offered before the learned Single Judge. We are. Therefore, not inclined to modify the order of learned Single Judge at this stage. However, in the interest of both the parties, we would order early hearing of the above three appeals. In the meantime, it will also be known as to whether the pending suits are finalised. It may be observed that it is an admitted position that the construction work on proposed third floor has not yet been commenced. According to the terms of the aforesaid undertaking offered, the appellants do not intend to put to any use the proposed third floor, the only reason which Mr. Khalid Anwar has urged, is that the cost of construction may go up by the time the appeals are finalised or the pending suits are finalised, where as it was pointed out by the learned counsel for the respondents/ plaintiffs that the appellants/defendants have already filed a suit, namely, Suit No, 160/80, for the recovery of Rs, 25,00,000 (Rs, twenty five lacs) as damages against the respondents/plaintiffs. We are of the view that the appellants have failed to make out a case under Order XLI, rule 5, C. P. C. For the stay of the operation of the order, as pre-requisites of Order XLI, rule 5(3) are not present in the instant cases. Order XLI, rule 5(3) provides that no order of stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it inter alia has been satisfied that substantial loss may result to the party applying for stay of execution unless the order is made.
8. Furthermore, during the pendency of the - stay applications in the suits, the appellants' undertaking not to raise more than two-storeyed building remained in force, and, therefore, during the pendency of the C appeals the appellants cannot be placed in a better position than they were during the pendency of the injection applications in the suits, after having lost before the Single Judge.
9. ' We accordingly dismiss the above applications with no order as to costs, but we order that the above three appeals shall be fixed for regular hearing within 4 months.
10. ' However, we may clarify that it will be open to the appellants to repeat the offer of the above undertaking in case they wish to do so or to take up any other stand, which may be available to them at the time of the hearing of the above appeals, and nothing contained herein shall prejudice the rights of the parties.