' MUSHIR ALA M, J.---Appellant has impugned the order dated 9-2-2009 whereby the application under Order XXXIX, rule 4, C.P.C. Seeking modification of order dated 9-12-2003 passed in the Suit No,958 of 2002 was dismissed.
2. Brief facts as narrated before the Court appear to be that the appellant proposed to carry out construction on Plot No,86-S, Block 2 PECHS situated on Allama Iqbal Road. It is the case of the appellant that the subject property was converted from residential to commercial by the Ministry of Works, Government of Pakistan on 2-7-1983. It seems that after completion of codal formalities including N.O.0 and approval of building plan permission was granted initially for ground plus 3 floor, on 24-4-1985 and 2-5-1985 respectively.
3. The respondent No,9 i.e, Ministry of Works also granted N.O.C. For commercialization on 29-3- 1995. It also seems that intermittent revision of the commercialization has been submitted and approved lastly on 4-9-1997 and when the construction was in offing the project was sealed on the ground of violation of approved building plan. However, it was de-sealed and restored by the order dated 27-12-1997 and the building was completed up to basement +ground+3 floors and completion certificate was issued on 30-1-2003.
4. However, when the construction was in the offing Suit No,958 of 2002 was filed and injunctive order was passed and confirmed on 21-10-2002. .It seems that appellant also applied and obtained approval for further construction of 4th and 5th floors vide approval dated 27-6-2003. It seems that the order was assailed in HCA No,246 of 2002, which was by consent disposed of on 22-2-2004. The matter was taken up to apex Court in Civil Petition No,680 of 2004 before the Hon'ble Supreme Court and the order passed in HCA No,246 of 2002 for sealing the structure of 4th and 5th floors was maintained by the apex Court.
5. It is, inter alia, contended by Mr. Rehman Aziz Malik, learned counsel for the appellant, that in the meantime there was a change in the legal position, in as much in exercise of powers conferred under section 192(2) read with 5th Schedule, Part-II, Clause 33 of Sindh Local Government Ordinance, 2001 CDGK approved the "Change of Land Use and Master Planning Bye Laws-2003" through Notification dated 12-2-2004. Under recommendation No,3 at serial No,7, property of the subject Notification, Allam Iqbal Road had been declared as commercial with effect from 1-2-2004.
It was urged that the matter came to the notice of the petitioner after the orders as referred to above were already passed.
6. In the forgoing backdrop and change in the circumstances and legal position, application under Order XXXIX, rule 4, C.P.C. Bearing No,4162 of 2008 was filed, seeking modification of the order on the basis of the new changed position in law. However, learned Judge in his Chambers in consideration of the fact that since the very order dated 9-12-2003 has been maintained up to the apex Court, therefore, the same cannot be altered. It was further noted by the learned Judge in chambers that the learned counsel has not drawn the attention of the Appellate Court or the apex Court as regard the change in law, which order has attained finality.
7. It was contended by Mr. Rehman Aziz Malik that the issue of commercialization was examined in number of cases after the decision in the instant case and once again the matter has been taken to the apex Court in Civil Petition No,129-K of 2007 available at Page 199 of the file in the case of "Haji Amin Proprietor Messrs Datari International v. Navaid Hussain and others", decided on 3/11/2007, Hon'ble Supreme Court in its judgment, examining the construction of five storyed building upheld the Notification published in the Sindh Government Gazette (Extra Ordinary) dated 12-2-2004 with particular reference to Allama Iqbal Road and Khalid Bin Walid Road. It was argued that Instant property is also situated on commercial road as mentioned in the notification applicable to the case of the appellant herein. Mr. Rehman, argued that the Courts do consider the changed circumstances, situation and change in law to would relief to do comple to justice. To cater such situation, according to him, remedy is provided under Order XXXIX, rule 4, C.P.C., which was invoked.
8. Learned DAG Mr. Mian Khan Malik, appearing for respondent No,9 contends that the Ministry of Works have already approved and granted N.O.C. For commercialization of the subject property.
Learned counsel for the CDGK also contends that after filing of the suit, property on the Allama Iqbal Road has been declared commercial under "Change of Land Use and Master Planning Bye Laws-2003" as notified on 12-2-2004. It was further pointed, out that subject notification was assailed in various cases, which notification has been maintained by the Hon'ble Supreme Court.
Therefore, this Court cannot take a different view. Mr. Tufail Ahmed Dehraj, learned counsel for KBCA has also contended that construction has been completed i.e, basement+ ground+3 upper floors under the order of the Court passed in Suit No,958 of 2002.
9. On a specific query of the Court; whether provision for the lift and other requirements in respect of the building stated to be ground plus 5 floors have been complied with.
10. Mr. Rehman has drawn our attention at Page 149 of the file. It is an approved building plan. He has drawn our attention to provision of lift as required under the Regulation, 2002. It is stated at bar that the building is in absolute conformity with the Regulation 2002 and there is no violation of the approved building plan. Apparently for this reason the respondents No,1 to 6 who vehemently contested the Suit, have chosen not to appear and defend the position in the instant appeal, though served and called several time.
11. We have heard the learned counsel for the parties and perused the record. At the time, when impugned construction was carried out the question before the court was that whether impugned commercialization of residential plot was carried out in accordance with the applicable law in vogue at that time in time.
12. In the case of "Haji Amin Proprietor Messrs Datari International (supra), during pendency of suit commercialization was obtained and so also Khalid Bin Waleed Road and Allama Iqbal Road were also commercialized, which aspect was not considered by the learned Single Judge, it was for this reason, appellate court remanded the matter with directions to the appellant to file-review application before the learned single Judge. The Review Application was dismissed, appeal met the same fate, however; the apex court taking into consideration subsequent commercialization by the competent authority and the commercialization of subject roads through resolution dated 6-1- 2004 and as per Notification dated 12-2-2004. Apex Court also noted that despite directions by the appellate court dated 5-12-2006 suit is still not concluded, all such consideration prevailed to set aside the order on Review Application passed by learned single Judge as maintained by the Appellate Court, appellant therein was allowed to "re-commence with construction work in accordance with approved plan, which shall be subject to final adjudication of the suit".
13. Once the road on which the subject property is situated, has been commercialized through "Change of Land Use and Master Planning Bye Laws-2003" as notified on 12-2-2004 and approved by the apex Court in Civil Petition No, 129-K of 2007 Haji Amin v. Navaid Hussain and others (supra)".
In the instant case ground plus 'three floors admittedly are complete in all respects and are occupied. 4th and 5th floor structure is complete but finishing was restrained under orders of the Court. It is argued by Mr. Rehman that cost of construction is increasing day by day and in view of changed position in law, now proposed construction of building is permissible on the subject roads under law. In the case of Abrar Ahmed Khan Tareen v. Munawar, 1994 SCM R 1764, wherein injunctive relief was allowed by the trial court, was challenged and the learned Additional District Judge dismissed the same, the appeal was dismissed by the learned High Court in limine, the apex court while dismissing appeal observed at page 1766 that "we do not think that there is an absolute restraint on the petitioner in making such a request to the court as this aspect of the matter has not been considered by it in the interim order that has been passed. If there is inordinate delay in disposing off the suit itself then also such a request can be made with a view to seek suitable alteration in the interim order". It is settled position in law that where subsequent to the passing of the injunctive order, some development takes place, new circumstances emerge, including change in law, having material bearing on substantive rights and interest of parties, requiring consideration, the courts do not sit with eyes closed to such change, may in appropriate cases vary, modify or even discharge the injunctive order. (One may also see Ali Asghar v. Creators Builders 2001 SC1142 279 at 285-C).
14. It may be observed that HCA 264 of 2002 was disposed of on 25-2-2004 with direction to the learned single Judge to proceed and decide the suit expeditiously and dispose it of within six months, over six years have passed suit is still pending and in the meantime "Change of Land Use and Master Planning Bye Laws-2003" has been enforced, cost of construction has tremendously increased. Looking at the slow pace at which the civil litigations are decided are the circumstances that call for modification of injunctive passed on 9-12-2003 to the extent that the appellant will be allowed to complete and finish 4th and 5th floors of the building strictly in accordance with approved building plan and as per Karachi Building and Town Planning Regulations, 2002.
Appellant shall provide and KBCA, the Regulatory Authority shall ensure that all the amenities and provisions for as mandated under Regulations 2002 are provided in the building. Appellant shall not create any third party right nor will part with the possession or interest till the suit is ultimately decided, which shall be subject to final adjudication of the suit and without prejudice to rights and defences as may be available to the parties to the suit.
15. All the learned counsel are directed to proceed with the suit, which may be decided preferably within six months from the date of this order.