C.M.A. No,11911 of 2001 SYED HASAN AZHAR RIZVI, J.---This is an application under Order XXXIX Rules 1 and 2 read with section 151, C.P.C. filed by the plaintiffs for restraining the defendants Nos. 8 to 13, their subordinate, employees, servants, workers and attorneys or any other person acting on their behalf to book/organize marriage functions, Aqiqa ceremonies, gathering of peoples by serving food and beverages and/or any other function or functions and parties of whatsoever nature, at Hayat Marriage Garden, situated at Plot No,139-A, Block-2, Allama Iqbal Road, PECHS, Karachi, in any manner. It is supported by an affidavit filed by plaintiff No,2 Waseemuddin.
2. Counter-affidavits to the listed application have been filed on behalf of defendant No,4/KBCA and defendants Nos. 8 to 13. In the counter-affidavit filed on behalf of defendant/KBCA it has been stated that the plot in question is located on 100 feet wide Allama Iqbal Road, which is declared open for change of land-use as per Commercialization Policy of the City District Government Karachi approved vide City Council Resolution No,383 dated 6-1-2004. It has also been submitted that owner submitted application for change of land-use from residential to commercial, the procedure was followed as per approved policy of 2004 and after completion of all codal formalities for change of land-use from residential to commercial the authority has issued offer letter which was accepted by the owner of the plot and deposited commercialization fee in the sum of Rs,80,00,000 and scrutiny fee of Rs,1,00,000 in CDGK. It has also been submitted that NOC for conversion of land use for the specific purposes (as per public notice) of (shops/offices/flats) use was issued by the MPGO, CDGK on 5-6-2006. It has been submitted that after issuance of notices MPGO, CDGK has withdrawn the NOC for change of land-use on. 14-1-2011 for misuse of plot as marriage hall/lawn instead of specified use of shops/offices/flats. However, the defendant/ KBCA has opposed the grant of listed application as plaintiffs do not have any prima facie case nor the balance of convenience lies in their favour and he shall not suffer any irreparable loss if the injunction is refused.
3. The defendant No,12 Arif Rehmatuallh has filed counter-affidavit to the listed application for self as well as attorney of defendants Nos.8 to 11 and 13, wherein it has been submitted that the plaintiffs have succeeded to get the status quo order on 24-11-2010 by suppressing material facts from this Court and making false assertions. It has been submitted that defendants Nos.8 to 13 after purchasing the suit plot from its predecessor-in-interest have applied for change of land-use in accordance with law, which was granted vide NOC issued by MPGO, CDGK dated 20-5-2006 and the answering defendants had deposited commercialization fee in the sum of Rs,80,00,000. It has been submitted that answering defendants have applied for the approval of the building plan for the marriage garden vide application dated 22-7-2010, which was approved by KBCA on 30-9- 2010. It has been submitted that plaintiffs have approached before this Court with unclean hands by suppressing material facts, therefore, they are not entitled to any relief and the application is liable to be dismissed with heavy cost.
4. Affidavit-in-rejoinder has been filed by plaintiffs reiterating the same fact as pleaded in the plaint as well as in the supporting affidavit of the listed application and denied the objections and pleas raised in the counter-affidavits filed by the defendants.
5. I have heard Mr. Muhammad Zahid Khan, learned counsel for the plaintiffs, Mr. Abid S. Zuberi, learned counsel for the defendants Nos.8 to 13, Mr. Anwer Ali Shah, learned counsel for the defendant No,4/KBCA, Mrs. Azra Mauqueem, learned counsel for the defendant No,3/CDGK, Mr. Khizer Asker Zaidi, learned Additional Advocate General, Sindh and Mr. Afsar Ali Abidi, learned counsel for the Intervenor.
6. Mr. Muhammad Zahid Khan, learned counsel for the plaintiffs contended that defendants Nos.8 to 13 have converted the Plot No,139-A, Allama Iqbal Road, Block-2, PECHS, Karachi into marriage lawn i,e, Hayat Marriage Garden without any specific permission by defendants Nos.1 and 5. He contended that defendants Nos.8 to 13 in collusion with defendants Nos.3 and 4 are establishing marriage lawn at the suit plot and fixed a gate at the main boundary wall of the lawn with additional entrance of glass doors and has also installed split unit. He also contended that finishing work of the said proposed marriage lawn is on going very rapidly and they also managed to construct booking office, bathroom and some more construction are been carried out without the permission of the defendant No,4 and have created an impression to the public at-large including the plaintiffs that the building is raised and not marriage lawn. He contended that no permission was granted to the defendants Nos.8 to 13 for establishing a marriage lawn by defendants Nos.1 and 5 to organize marriage functions, musical evening, gathering or religious functions, in a residential area nor any lawful conversion is allowed, which is unlawful, illegal and as such no marriage lawn in the locality could be established and particularly on the plot in question.
7. Learned counsel further contended that proposed marriage lawn will create a nuisance, causing hindrance, congestion and obstructions to the smooth flow of traffic passing-on in front of plaintiff No,1 house and car parking on road side particularly in front of Allama Iqbal Road, inside roads and Kashmir Road, which will caused traffic congestion and apprehension of accidents and substantial obstruction an annoyance to the area residence. He contended that the functions at the marriage lawn will create a nuisance to the plaintiffs and the area residence causing a complete dis- comfort in their life and depriving the plaintiffs and the area residents of their peaceful living. He urged that marriage functions and ceremonies in society having created its cultural values are accompanied by huge gathering of people of different localities and characters and for enjoying and celebrating their happiness they frequently used big loudspeaker and stereo system loud playing of music and drumbeat, blowing and high pressure horns and big sound of fire crackers and fireworks and air firing with ammunition, which will made the life of plaintiffs miserable including the area residents.
8. Learned counsel argued that there is a strong prima facie case in favour of the plaintiffs and irreparable loss will be caused and it may create further complications/great nuisance if the listed application as prayed for is not granted. In support of his submissions learned counsel has placed reliance on the case of Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another (1992 CLC 2540) and Arif Majeed Malik and others v. Board of Governors Karachi Grammar School (2004 CLC 1029).
9. On the other hand, Mr. Abid S. Zuberi, learned counsel for the defendants Nos. 8 to 13 has controverted the submissions made on behalf of the plaintiffs and urged that after transfer of the suit plot the defendants Nos.8 to 13 have applied for conversion from residential to commercial for which the defendants Nos. 8 to 13 have adopted legal procedure and incurred huge sum of money by depositing commercialization fee in the sum of Rs,80,00,000 and other miscellaneous expenses.
He contended that the lessor viz. Government of Pakistan, Ministry of Housing and Works was also issued approval/NOC in favour of defendants Nos.8 to 13 vide letter dated 8-8-2006. He contended that the defendants Nos.8 to 13 after the permission of the competent authority applied for the approval of the building plan for the marriage garden vide its application dated 22-7-2010, which was submitted to defendant No,5/PECHS and it was routed to the Deputy Controller of Building through defendant No,5 was approved by KBCA/defendant No,4 on 30-9-2010.
10. Learned counsel also contended that the plot in question is situated on main Allama Iqbal Road, which is admittedly declared commercial road, therefore all the properties situated thereon are deemed to be commercialized by operation of law. He also made reference to Para-4 of the memo of plaint which itself shows that under Regulation No,19-2.2.6 the Commercial (trade) uses include marriage halls/lawns. He urged that once a property is commercialized the same can be used for any commercial purpose in accordance with the law and regulations and all commercial activity including commercial trade as defined in Karachi Building and Town Planning Regulations 2002 can be carried out on such commercialized plot. He also urged that no nuisance is being caused to the plaintiffs by answering defendants as alleged in the memo of plaint as no evidence is available to establish that nuisance of any nature is being caused to the plaintiffs. He submitted that the question of causing nuisance can only be proved by producing satisfactory evidence and not merely on the basis of statement made in the pleadings. He also submitted that interim order dated 24-11-2010 has been obtained by the plaintiffs by fraud, misrepresentation and concealment of facts as the suit as well as application for grant of injunction was filed on 23-11-2010 praying that no function etc. be carried out on the suit property, the plaintiffs deliberately did not disclose to this Court that the marriage garden was already operational and a number of ceremonies had already been held on the venue. He submitted that wrong impression has been conveyed by the plaintiffs in the suit as well as in the injunction application that the marriage hall has yet to start functioning, but the facts are otherwise. He contended that third party interest has been created inasmuch as people have already booked Hayat Garden and spent a substantial amount of money on printing of cards and inviting guests for their functions, as such status quo order cannot operate against parties who are not before the Court.
11. Learned counsel further contended that the defendants have filed C.P.No,D-655 of 2011 impugning the notice of withdrawal of NOC for change of land-use by defendant No,3/CDGK, wherein notices have been issued and status quo was ordered vide order dated 4-3-2011. He also placed on record copies of judgments passed in C.P.L.As. Nos.502 and 503-K/2003 and H.C.As.
Nos.113 of 2007 and 382 of 2008. He, therefore, prayed that no case for grant of injunction is made out in favour of the plaintiffs nor any inconvenience or prejudice would be caused to them. Balance of convenience is also not in favour of the plaintiffs but defendants Nos.8 to 13 will suffer irreparable loss if the injunction is allowed.
12. Mrs. Azra Mauqeem learned counsel for the defendant No,3/CDGK contended that application for conversion of suit plot was approved by the competent authority of CDGK as per commercialization Policy No,383 of 2004. She contended that NOC for conversion of land-use was for the specific purpose as per public notice dated 5-6-2006 only to the extent of commercial use which includes shops, offices, flats and not marriage lawn. She also contended that MPGO, CDGK has withdrawn the said NOC for change of land-use on 14-1-2011 for misuse of plot as marriage lawn instead of shops, offices and flats.
13. Mr. Anwer Ali Shah learned counsel for the defendant No,4/KBCA opposed the grant of listed application and argued that the plot in question is situated on Allama Iqbal Road, which is declared as commercial. He contended that K.B.C.A. received a letter dated 14-1-2011 from CDGK, by which the CDGK has withdrawn the commercialization approved earlier and the status of the plot was restored to original position i,e, residential, therefore the KBCA had no option except to withdraw the plan of commercial category approved earlier, hence the KBCA issued letter dated 11- 2-2011 to the owner withdrawing the approval granted earlier, with direction to remove all such construction and activities forthwith, otherwise action shall be taken as per law. He contended that such withdrawal was made on the basis of violation of Clause-7 of undertaking on Court paper made by defendants Nos.8 to 13. He also argued that the defendant No,4/KBCA had approved a building plan for establishing of marriage lawn on the basis of documents provided by the owner and filed written statement according to the prevailing situation and status of the plot in Question.
14. I have given due consideration to the arguments of the learned counsel for the parties and with their able assistance examined the material placed on record.
15. Admittedly, the plot in question is situated on main Allama Iqbal Road, which is a declared commercial road as per 'Tajweez-3' under the Bye-Laws, therefore it would not be necessary to go into detail or the manner in which such change of land has been made. From the perusal of record it reveals that defendants Nos.8 to 13 after grant of permission from Government of Pakistan have submitted building plan for establishing marriage garden along with application dated 22-7-2010, wherein it is clearly mentioned the words 'marriage garden', which was submitted to defendant No,5/PECHS along with requisite fee. Such plan was approved by KBCA on 30-9-2010 thereafter the defendants raised construction according to approved plan. It may be observed that withdrawal of NOC is apparently for some ulterior motives, as at the time of grant of permission for establishing marriage lawn no violation under Clause-7 of undertaking or public notice dated 5-6-2006 have been seen, particularly when the application for approval of building plan clearly indicate the words 'marriage garden'. The CDGK had granted NOC after completion of all codal formalities including receipt of commercialization charges in the sum of Rs,80,00,000 from defendants Nos.8 to 13 and now when the marriage lawn has become operational the defendant No,3 has withdrawn NOC issued earlier without any cogent reason and without notice to the concerned party. The said notice is sub judice before this Court in C.P. No,D-655 of 2011.
16. I have examined the relevant law including the Bye-Laws and Karachi Building and Town Planning Regulation, 2002. Perusal of Clause 2-34 of the KB&TPR, 2002 shows that it has defined commercial use as commercial (trade) uses such as shops, shopping centres, markets and other uses as defined in sub-clause 19-2.2.6. It will be appropriate to reproduce Clause 19-2.2.6 of KB&TPR, 2002 for ready reference:-- "19-2.2.6. commercial (trade) uses: normally includes only the land used for the activity in question, though this may be increased by additional open or green space, if the operation of the facility concerned requires it. Commercial (trade) uses includes;
(a) whole sale trade; subzi Mandi, fruit Mandi, whole sale markets.
(b) retail shopping; including shops, shopping centers, departmental stores, bazaars, markets and hawkers area juma bazaar etc.,
(c) Personal services; including barbers, hair-dressers, baths, tailoring, shoe-making, laundries and dry cleaners;
(d) catering; including restaurants, banquet halls, marriage hall/lawn, refreshment stalls buffets,
(e) lodging: including hotels, motels, guest houses and clubs providing lodging;
(f) business offices including banks;
(g) petrol stations, CNG stations;
(h) Cyber Cafe etc."
The above-quoted clause clearly shows that commercial (trade) uses c includes marriage lawn/hall.
17. A similar type of controversy came under discussion before a learned Division Bench of this Court in the case of Ghulam Abbas Karjatwala v. Hira Javed and others (H.C.A. No,382 of 2008) in respect of the plot next to plot in question bearing No,140-A, Allama Iqbal Road, Block-2, PECHS, Karachi for establishing CNG Station, wherein this Court has thoroughly discussed all aspects of the matter regarding conversion and commercial use and held that the appellant has right to use the plot for CNG Station.
18. I respectfully follow the decision rendered by the Division Bench of this Court, which was also maintained by the apex Court and have no hesitation to hold that Clause 19-2.2.6(d) of KB&TPR 2002 has extended the meaning of commercial use to the marriage lawn/hall, therefore it cannot be said that the commercial activity is only confined to offices, .shops and flats. Moreover, there is no regulatory authority exist to control the affairs of Shaadi Hall. So far the issue of nuisance is concerned it depends on evidence that may come on record at trial.
19.In. view of the discussion made above, neither there is a prima facie case in favour of the plaintiffs nor the balance of convenience nor they would suffer, irreparable loss if injunction as prayed is refused, hence no case appears to have been made out for grant of injunction which is an equitable relief and is to be granted in aid of equity and justice and not otherwise as held in Puri Terminal Ltd. v. Government of Pakistan and others (2004 SCM R 1092). Resultantly, this application for grant of temporary injunction is, therefore, rejected.
C.M.A. No,12489/2010:
20. This is an application filed by Intervenor Muhammad Farukkh under Order I, Rule 10, C.P.C. with the prayer to implead him as defendant in the above-noted suit for lust decision in the matter. The application supported by affidavit of Intervenor.
21. Mr. Afsar Ali Abidi, learned counsel for the applicant/ intervenor contended that applicant plays a vital role by virtue of partnership agreement dated 28-5-2010 as he runs business of arranging the marriages, functions, celebrations, Mallis and Mahfil-e-Meelaad etc. He supported the case of defendants Nos.8 to 13 and stated if no facility is provided to the customers, it would be irreparable loss to the applicant in terms of pecuniary as well as to the good name and fame amongst the family members, relatives, well wishers, general public and civil society. He, therefore, prayed that applicant may be impleaded as one of the defendants in the above-noted case.
22. On the other hand, Mr. Muhammad Zahid Khan learned counsel for the plaintiffs vehemently opposed the grant of listed application and argued that business deal between the proposed intervenor and defendants Nos.8 to 13 is an internal matter and the applicant is neither a necessary nor a proper party in this case. He further contended that no written partnership has been filed along with the application. He also argued that case can be decided without impleading the applicant in the above matter and the suit can be adjudicated on merits without joining the applicant in the above suit.
23. I have heard the arguments advanced by the parties counsel. Apparently the applicant has no direct link or connection with the matter in controversy, as neither he is owner/co-owner of the property in question nor he has produced any partnership agreement before the Court. Even the partnership agreement executed between the applicant and defendants Nos .8 to 13 is an internal arrangement between them. I find that there is no necessity to array the applicant as one of the defendants and case can be decided on its own merits in his absence. No irreparable loss will be caused if the applicant is not joined as party to these proceedings. Therefore, the application filed by the applicant for joining him as one of the defendants in the above matter is hereby dismissed.