' NISAR MUHAMMAD SHAIKH, J.---These three appeals are directed against a common order dated 17-4-2009 passed by the learned Single Judge of this Court in Suit No,1424 of 2007 whereby the application under Order XXXIX Rules 1 and 2 read with section 151, C.P.C. (C. M. A. No, 9150 of 2007) filed by plaintiffs/appellants was dismissed and application (C.M.A. No, 6269 of 2008) under Order XXXIX Rule 4, C.P.,C. As well as two other applications (C.M.As. Nos.6362 of 2008 and 6419 of 2008) filed under section 151, C.P.C. On behalf of defendant No,2/respondent No,2 (KBCA) were allowed/disposed of in terms (a) to (d) as mentioned in the impugned order.
2. Relevant facts leading to these appeals are that the plaintiffs M. Zekar and others (appellants in H.C.As. Nos.110 and 122 of 2009) filed a suit on 3-11-2007 in original side of this Court, for declaration and injunction stating that they are tenants in respect of various shops and flats on ground+ two storeyed building known as Ismail Manzil constructed at Plot No, G.K.-1/23 admeasuring 707 sq..
Yards situated at Haris Road, Ghulam Hussain Quarters, Karachi at a monthly rent as shown in the plaint. They claimed to have acquired such tenancy rights from time to time, from one Ismail Jee on payment of huge Pugri/goodwill and they have been paying the rent regularly to their landlord, Ismail Jee and now to the defendant No,1 (respondent No,1) namely Lal Taj Khan on coming to know about the purchase of the said building by him. It is alleged that he, after accepting rent for some time, avoided to receive the same hence they tendered due rent through money orders dated 1-10- 2007 but the same were also returned undelivered having been refused by him with mala fide intention obviously to create a false ground for their eviction. Plaintiffs further alleged that the defendant (Lal Taj Khan) in order to cause harassment to them for his unjustified demand of vacation tenements, illegally started demolition of some portion under his possession, of the said building which if allowed to be continued, would cause damage to the plaintiffs tenements. The plaintiffs therefore prayed for declaration that they being lawful tenants of their respective tenements in the said building, cannot be dispossessed without due process of law and for injunction restraining the defendant, his agent or any other person claiming through/under him from dispossessing the plaintiffs and/or from demolishing the said building or any part thereof.
3. In the written statement filed on behalf of the KBCA, who was impleaded as defendant No,2 vide order dated 6-10-2008 passed on their application dated 21-5-2008 under Order I, Rule 10, C.P.C., it was stated that this is a case of dangerous building of about 150 years old which is to be demolished as it may collapse at any time, therefore, Technical Committee on Dangerous Buildings, KBCA inspected this building and submitted its report dated 16-8-2007 declaring entire building comprising of ground + 3 upper floors as ruinous and dilapidated condition and dangerous. Such notice dated 1-9-2007 was issued by KBCA to the owner directing him to remove the building and then another notice dated 13-9-2007 was issued to him to remove it within 48 hours else the KBCA shall remove the same. It was further stated that the Authority then called for the tenders from Demolition Contractors registered with KBCA and when the process of demolition was under way, the owner informed through his application dated 4-4-2008 that some persons who have entered in the building and have adopted residence, are not ready fo vacate the building. Therefore, the KBCA again issued a notice dated 28-4-2008 for removal of dangerous building to the owner and also issued work permit dated 2-5-2008 to demolition contractors as well as a letter to TPO Saddar Town to provide assistance to get the premises vacated to save the lives of occupants and other passers-by persons. The owner then also submitted an application dated 20-5-2008 for immediate removal of the building. The defendant No,2 also stated in the written statement that there is no proper agreement between the landlord and the tenants and the alleged tenancy and rent receipts appear to be fake and manipulated and no rent receipt has been filed by the plaintiffs prior to June, 2007 which shows that they have entered in the building without any legal right. It is alleged that the notice dated 1-9-2009 issued by defendant No,2 to the plaintiffs, has not been challenged by them, nor they are willing to vacate the building only to extort huge compensation from the defendant No,1 and that the suit has been filed to defeat the process of law i.e, operation under section 14 of the Sindh Building Control Ordinance, 1979.
4. In their application (C.M.A. No,9150 of 2007) moved by the plaintiffs (appellants) under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C., they prayed for ad interim order restraining defendant, his agent and/or any person claiming through/under him, from dispossessing the plaintiffs from their respective tenements and/or from demolishing the building or any part thereof.
Vide order dated 26-11-2007 the parties were directed to maintain status quo. Another application (C.M.A. No,6269 of 2008) was moved on behalf of the KBCA (defendant No,2) under Order XXXIX, Rule 4 read with section 151, C.P.C. With a prayer to modify/alter/amend the status quo order to the extent that the KBCA may take action as pei law and remove dangerous building to save the lives of occupants and of area residents. In the affidavit, filed in support of this application, it was also mentioned that an application dated 23-6-2007 was also submitted by the owner for inspection of the building which was inspected by KBCA officials who found it to be unsafe for habitation, therefore, the case was referred to Standing Committee on Dangerous Building KBCA who then also inspected the building as required under section 14 of the Sindh Building Control Ordinance, 1979 and submitted its report dated 16-8-2007 declaring the building as ruinous and dilapidated condition and dangerous. Second application (C.M.A: No,6362 of 2008) was also moved on behalf of ,KBCA under section 151, C.P.C. With a prayer to allow KBCA to take action as per law and remove the dangerous building under the supervision of Nazir of this Court. Third application (C.M.A.
No,6419 of 2008) was also moved on behalf of KBCA under section 151, C.P.C.. For demolition of dangerous building which may collapse at any time causing serious threats to the lives and property of the residents of the area. The affidavits filed in support of these three applications, were controverted by the counter affidavit filed by the plaintiff No,10 namely Shamsuddin who is the sole appellant in H.C.A. No,122 of 2009. He denying the allegations, submitted that they (plaintiffs) have no knowledge about the application allegedly moved by owner on 23-6-2007 for inspection and no notice was ever served upon plaintiff nor they were given any opportunity of being heard, before or at the time of alleged inspection. He alleged that the KBCA is in collusion with the owner who want to deprive plaintiffs from their valuable tenancy nights for the purpose of constructing a multi storeyed building without compensating them as provided under Sindh Rented Premises Ordinance, 1979. He further stated that they have also got the building inspected by a licensed architect and such report is awaited.
5. The above parties also filed photocopies of some documents as referred/relied upon by them in support of their respective pleadings. However, the owner Lal Taj Khan (defendant No,1) though served with the summon, issued from time to time through various modes, did not attend the Court and therefore. He was ultimately declared ex parte vide order dated 5-10-2009. Therefore, the learned Single Judge after hearing the learned counsel for the plaintiffs and the defendant No,2 passed the order dated 17.4-2009 as mentioned above, which has been impugned the plaintiffs/appellants M Zekar and others through H C.As. No,110 and 122 of 2009. The same order has also been challenged by the appellants Abu Bakar and other through H.C.A No,109 of 2009 though they were not party in the above suit According to them, since impugned order was passed not only against the plaintiffs but also against all occupants which includes the present appellants who were/are occupants of the respective tenements as shown against the name of each in the title of their appeal, therefore, they being adversely affected of the impugned order have also challenged the same specially when their similar type of Civil Suit No,690 of 2008 is already pending against the same defendant in the Court of XVI Civil Judge, Karachi, South. The above appellant is however reasonable and forceful,
6. We have heard learned counsel for the parties and perused relevant record including the R&Ps of the suit, which reveals that initially the inspection report dated 16-8-2007 of the Technical Committee, comprising of 4 members/nominees from Pakistan Engineering Council, Pakistan Council of Architects and Town Planners, Secretary of Technical Committee on Dangerous Building and a Co-opted member, was that "The entire Ground + 3 building is in dilapidated and ruinous condition and declared as dangerous." Since this inspection and its report was being questioned by the plaintiffs/ appellants, therefore, on the application (C.M.A. No,6363 of 2008) moved on behalf of the KBCA under Order XVIII Rule 18, C.P.C., the learned Single Judge vide his order dated 6-10- 2008 passed by consent of the parties, appointed the Nazir as Commissioner for inspection of the building in question with permission to take assistance of the qualified engineer or architect.
Accordingly, the Nazir inspected the building on 23-10-2008 and submitted his report dated 28-10- 2008 (together with photographs taken by the parties) which is reproduced below:-- "Report. Almost all the plaintiffs were present Mr. Minhas. Qazi, representative of Mr. Lal Taj Khan, defendant was present. Defendant No,2 (K.B.C.A.) were present through Mr. Asif, D.C.B., Mr. Abdul Sami, A.C.B., of K.B.C.A., and legal Adviser Mr. Anwar Ali Shah. Inspection of building in suit was carried out on 23-10-2008 at 3-45 p.m. Both sides have given the reports of their Engineers in respect of building in question. There are 14 shops found in running condition. There were 24 flats out of it some flats are vacant and some have been partly demolished. Whereas out of it approximately one and half dozen flats were occupied. On ground floor shops were occupied. First and second floors have flats. On third floor Kacha Pakka rooms were built and occupied. Building was old one some pillars and beams were cracks. Plasters of roof were also partly removed. Stairs were also dilapidated condition. The building is in weak condition. In surrounding area buildings are also old and week. Defendant No,2's legal Adviser Mr. Anwer Ali Shah did not allow to engage to take assistance of any qualified Engineer or Architect and informed that Technical Committee of Architect have reported it danger on 28-8-2007. Plaintiffs have got inspected the building through Mr. Zubair Ahmed Associate Engineer on 25-6-2008 who has reported the bad and poor condition of Stairs, paints and physical appearance. The life of the building can be increased if it is renovated it paints, plaster, sewerage. 1 also reported accordingly as per the report of Zubair Ahmed Associate Engineer. Further an independent Engineer is required to report after thorough inspection independently at the cost of plaintiff."
7. The above report specially the personal view of the Nazir, based on personal opinion of a private Associate Engineer namely Zubair Ahmed, was also questioned by the KBCA/respondent No,2, through their such objections dated 15-12-2008. Whereas the plaintiff No, 10 namely Shamimuddin in his counter-affidavit dated 23-6-2008 had already objected that the building can only be inspected by a licensed architect and not by the Nazir to form an opinion about the stability of the building structure. It was therefore that the Nazir also concluded his report dated 28-10-2008 with submission that an independent Engineer is required to report after thorough inspection independently. In the circumstances, the learned Single Judge passed the following order on 16-1- 2009 by consent of the parties: "By consent a qualified structural Engineer is appointed from Pakistan Engineering Council to inspect the suit property and submit his report about the condition of the building and its sustainability. The fee of Engineer in the sum of Rs,20,000 will be equally shared by plaintiff and KBCA and in this respect they will deposit their respective shares with the Nazir of this Court within one week. On such deposit, the Engineer, after giving notice to the parties, will conduct inspection and submit his report within a period of two weeks. Adjourned to 12-2-2009."
8. . The record further shows that in compliance of the above order, Pakistan Engineering Council vide letter dated 28-1-2009 issued through their Deputy Registrar, nominated Mr. Muhammad Ishaque Khan, Structural Engineer who after giving notice to both the parties, physically inspected the building on 7-2-2009 and then submitted his report dated 10-2-2009 together with a sheet list showing the names with signatures of 20 occupants of the building and one representative/ advocate of KBCA who were present there at the time of the inspection. Such report is also reproduced below:-- "The existing building is located on Plot No,GK-1, Survey No,23, Haris Road Ghulam Qasim Quarters Kharader Karachi. The plot is three sided open to road. The area of the plot is approx.707.0 sq. Yds ' The building is constructed R.C.C. Ground plus two in year 1950. The constructed area is approx.12,000 SFT. There are 14 shops at ground floor and two upper floors are residential flats, 90% of the building is occupied.
' The great God has created the earth, nature, mankind, mass, air, water etc. Everything has an expiry time, which is true, the building material used at that time for the construction of this work was really good and best, which has a life of max. 60 years, if necessary and precautionary measures were taken to maintain the building, its Life may extend up to coming 20 years more, but never ever any of the maintenance done in past or present.
' Therefore, poor condition of the structure is open to a nacked eyes. However, 3-4 shopkeepers did there best to maintain repair to sit to earn their livehood, such as plaster on wall flooring, patch repair of soffit of the slab and columns etc. Hence all there efforts are null and wide. Because 80% of the entire structure is not in condition to survive more.
' The R.C.C. Column are 9"X18" & 18"X18", the R.C.C. Beams are 9"X24", and R.C.C. Slab is about 6" thick the partition wall are 6" thick etc. As shown to nacked eye at Site everyone.
' I have checked whole the structure from ground floor to roof top and several flats from inside, and found 3-4 cracks each in R.C.C. Column vertical cracks from heel to top, and horizontal cracks in R.C.C. Beams both at ground floor shops and at upper floor flats and main steel are shown to eye.
' The plaster of the slab and bonding concrete between the steel has left the concrete, and steel become rusty and open. It is seen every where specially under balcony slab, soffit of the stair slab which are main steel, bath room slab, soffit of the roof slab, main loading beams, cracks in partition walls, and patch work etc. ' In reinforced concrete structure we always care for the quality C of the material i.e, strength of concrete, strength of steel and time factor to protect all the material from moisture. The sewerage water seeps had penetrated into the concrete items specially in slab, beams and columns and left bad effects on 80% of the structure. Here in this building the main cause of destroying concrete life is water.
' The building cannot survive long as it has lost its life and no chance of injecting given to concrete or steel. The existing building has completed its 60 year life and now it needs to be demolished. It cannot sustain more seismic danger moderate 2-B shocks etc. Or after shocks etc. ' To prevent lives it must be demolished whole structure of the existing this dangerous building. The sustainability of the structure is ended it has completed its life."
9. Learned counsel for the appellants, relying upon the cases reported as 1984 CLC 2476, 1990 CLC 119, 1992 CLC 518, 1993 CLC 2491 and PLD 1998 Karachi 307, contended that the appellants were neither given any notice before the alleged inspection of the building by the Technical Committee of KBCA nor provided an opportunity of being heard before issuing alleged notices for vacating their rented premises for demolition and removal of the subject building and, even otherwise, the Technical Committee itself, was also not constituted as per requirement of law and there was also no finding of such Committee that the building is likely to collapse or it needs demolition, therefore, the collusive action of respondents Nos.1 and 2 was illegal, mala fide and without lawful authority and as such, the impugned order dated 17-4-2009 passed by the learned Single Judge is not sustainable in law and is liable to be set aside as the tenancy rights of appellants are protected under Sindh Rented Premises Ordinance, 1979 specially when they have paid huge amount of Pugri for their tenements.
10. On the other hand, the contention of the learned counsel for respondent No,2 was that all the occupants, from the very beginning, were in knowledge of the process initiated by the KBCA for demolition of dangerous building but the appellants malafidely concealed such facts from the very plaint of their suit and thus, they did not come with clean hands and since the KBCA acted in good faith to save the lives of occupants of the dangerous building as well as the passersby persons, therefore, the technicalities were to be avoided in the larger interest specially when the learned Single Judge, during the pendency of the suit, completed all formalities and requirement of law while providing full opportunities to the appellant to the extent that, with their consent, an independent expert and competent Engineer was finally entrusted the task of conducting inspection of the subject building and his undisputed and unchallenged report also confirms the earlier report of Technical Committee. He further contended that the appellants who claim to be the tenants, have not even filed or relied upon any tenancy agreement and, even otherwise, they being tenants have no right in the property or its fate, therefore, they in order to extort huge amount of compensation as per their unjustified demand, have delayed the demolition process of KBCA at the costs and risk of their own lives for which the learned Single Judge has rightly passed an speaking order which calls for no interference by this Court of appeal.
11. We have considered the above submissions. No doubt, the initial report in question, in respect of the inspection of the building conducted by the Technical Committee on 16-8-2007, is clear in terms that the entire building found in dilapidated and ruinous condition was declared dangerous.
This report was also corroborated by the final report dated 10-2-2009 of the Structural Engineer who was nominated by Pakistan Engineering Council in compliance of the order of learned Single Judge passed by consent of both the parties to find out the actual position/ condition of the subject building so as to resolve the controversy between the parties. Such detailed report of the inspection conducted in presence of both the parties, also reveals that the subject building was found to have completed its life and the sustainability of its structure had come to an end and therefore, it was suggested/recommended that whole structure of this dangerous building must be demolished to prevent the lives. This final report was not questioned like initial report and thus, the learned Single Judge after providing full opportunity to the appellants to express their point of view, passed the impugned order in detail. Accordingly, the reported cases as relied upon by the learned counsel for the appellants are quite distinguishable to the peculiar facts and circumstances of this case.
12. The record indicates that the demolition process was initiated by the KBCA on the first application moved by the owner Lal Taj Khan on 23-6-2007 apprehending danger of the collapse of his building being dangerous in condition and complaining for non-cooperation of his tenants in vacating the subject building. Thereafter, the owner also moved two further applications before the KBCA on 4-4-2008 and 20-5-2008 respectively, for early action towards the demolition. Not only this, his one representative participated in the inspection of the building conducted by the Nazir on 23-10-2008 and his another representative was also present before the learned Single Judge on 10-4-2009 at the time of arguments advanced by the advocates but despite such notice/knowledge as well as due service of summons affected upon him, he never attended the Court with the result he was ultimately declared ex parte. Thus, his written statement, objections or counter-affidavit could not come on record to enable the Court to ascertain as to whether or not, he intends to sell the plot or reconstruct/erect new building on demolition of existing building so as to attract relevant provisions of subsections (3) and (4) of section 15 of the Sindh Rented Premises Ordinance, 1979 for accommodation of his tenants. The initial application dated 23-6-2007 of the owner did not show even the names and total number of the actual tenants. However, section 13 of Sindh Rented Premises Ordinance, 1979 provides that no tenant shall be evicted from the premises in his possession except in accordance with the provisions of this Ordinance. Whereas, the relevant provision on the ejectment of the occupiers of dangerous building, given in Sindh Building Control Ordinance, 1979 is subsection (3) of section 14 which provides that the Authority may, notwithstanding any other law for the time being in force, order that the occupiers of the building to be demolished, be ejected in case they fail to vacate it within a period specified in the notice issued in this regard. Thus, it becomes clear that the occupiers i.e, all persons including owner, tenants etc. Who are in occupation of the building to be demolished, could be ejected from it under the above provisions of Sindh Building Control Ordinance, 1979 superseding the said provisions of Sindh Rented Premises Ordinance, 1979 and accordingly, the appellants being tenants are not immune from the operation of section 14 of the Sindh Building Control Ordinance, 1979 despite protection of their tenancy rights under section 13 of the Sindh Rented Premises Ordinance, 1979.
13. The only dispute between the parties appears to be on the rate of compensation which is also evident from para. 11 of the counter-affidavit dated 23-6-2008 filed by one of the plaintiffs (appellants) namely Shamimuddin who stated therein that the defendants (respondents) in collusion with each other want to deprive them of their valuable tenancy rights without compensating them. It is further evident from the order dated 19-3-2009 available in the order sheet of the suit that such demand in clear terms was made by the learned counsel for the plaintiffs (appellants) that if reasonable compensation is given to the -tenants they are ready to vacate the premises. But, at the same time, the owner/ respondent No,1 appears to have had been keeping' himself away from the court proceedings, apparently, for the reason to avoid from furnishing any undertaking or entering into any agreement for providing alternate accommodation or mutually agreed compensation to the tenants in lieu of their tenancy rights. Be that as it may, the appellants would be at liberty to claim the compensation, damages etc. From him as permissible under the law. However, the case of appellants in such circumstances, does not fall within four corners of well-settled principles for grant of temporary injunction as all the three essentials for grant of temporary injunction do not co-exist in their favour and as such, the order of learned Single Judge dismissing the application under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A.
No,9150 of 2007) is hereby maintained.
14. So far as the remaining applications (C.M.As. Nos.6269, 6362 and 6419 of 2008) are concerned, the same were disposed of in terms (a) to (d) of the order whereby all the occupants including parties to suit were ordered to vacate the building within five days and the KBCA was directed to remove by force, within 24 hours, if any of them found in occupation on expiry of these five days, and also demolish the building forthwith. In this regard, the learned counsel for the appellants relying upon the cases reported as 1995 SCMR 06, 1998 SCMR 68, 1989 CLC 1975, 1992 CLC 2396, 2002 CLD 218 and PLD 2004 Karachi 492, contended that since the KBCA had not filed any suit for permanent or mandatory injunction, therefore, they could not be granted such interim relief and since the KBCA was granted the interim relief of the nature of mandatory injunction on their interlocutory applications, therefore, the same tantamount to grant of a final relief which has seriously prejudiced the appellants as in this way the claim of KBCA was allowed to be executed before its conclusion. This contention, however, carries legal force in circumstances of this case and, therefore, the disposal of these three applications in terms of the impugned order is modified to the extent and in the terms that the KBCA shall be at liberty to take action in the matter in accordance with law.
15. With the above modification in the impugned order the present appeals are dismissed with no order as to the costs.