' MUNIB AKHTAR, J.--- By means of the application presently under consideration, being C.M.A.
No,7585 of 2010, the plaintiff seeks an interim injutction against the defendants, and in particular the defendant No,3, restraining the latter from putting up a signboard, hoarding or neonsign in any manner whatsoever in front of the plot of the plaintiff adjacent to its main entrance. The circumstances in which the present application arises are as follows:-
2. The plaintiff is the owner of the property described in para 1 of the plaint, which abuts the Do Talwar roundabout Clifton, Karachi. According to the plaintiff, it is constructing a showroom for display of a well-known luxury brand of motor vehicles on the subject plot. It appears that directly in front of the plot and bordering on the roundabout is a small strip of land, which belongs to the defendant No,2, the Clifton Cantonment Board. According to the plaintiff this area (hereinafter referred to as the "strip") can only be used for the purpose of a park and for no other purpose. In particular, and this is the primary grievance of the plaintiff in this suit and in the application presently under consideration, the defendant No,2 cannot use the strip or allow any other person to use it in such manner as interferes with the easementary rights of the plaintiff. The particular right in this regard that the plaintiff agitates by means of the present suit is the right of the plaintiff for the public, and the plaintiff itself, to have an unhindered and unrestricted view to and from the Do Talwar roundabout to and from the plaintiff's plot and in particular the showroom that is being constructed thereon. The plaintiff claims that the defendant No,3 has been accorded permission to raise a signboard or hoarding on the strip which would materially and adversely interfere with the foregoing rights of the plaintiff.
3. It appears that when the suit was filed in January, 2008, the plaintiff had moved an application, being C.M.A. No,309 of 2008, seeking an interim injunction against the defendants in respect of a signboard or hoarding (hereinafter referred to as the 'First Signboard') which had been erected by the defendant No,3 on the strip pursuant to a permission or licence granted to it by the defendant No,2. The grievance raised by the plaintiff by means of the present application is that in addition to the First Signboard, the defendant No, 2 has now given permission to the defendant No,3 to raise another signboard (hereinafter referred to as the 'Second Signboard') on the strip. Insofar as the First Signboard is concerned, that Ifad admittedly been erected by the time that suit was filed. The application for interim relief that had been filed in relation thereto, i.e., the aforesaid C.M.A. No,309 of 2008, was heard and finally disposed of by a learned single Judge by means of the order dated 13-1-2010. After considering the matter in detail the learned Single Judge was pleased to dismiss the said application. While dismissing the application, the following order was nonetheless made: ".. However, the defendant No,3 shall raise the height of the hoarding/signboard to 15 feet by turning it towards the eastern side. The defendant No,3 shall also furnish an undertaking before the Nazir that in case if any damage/harm is caused on account of the hoarding/signboard the plaintiff shall be compensated."
5. Being aggrieved by the dismissal of the application, the plaintiff filed an appeal against the same, being H.C.A. 20 of 2010, and that High Court Appeal was finally heard and dismissed by means of the order dated 11-3-2011. Learned counsel appearing for the plaintiff, after narrating the facts as above, emphasized that the earlier round of litigation was in relation to the First Signboard and that the present application was in connection with a new and different signboard i.e. The Second Signboard. He submitted that the Second Signboard had been, or was yet to be erected, but that in any case, the necessary groundwork, including the laying of the foundation for the Second Signboard on the strip, was well under way and it was these facts which necessitated the filing of the present application. Learned counsel also, without prejudice to the fundamental distinction that he drew between the two signboards, drew attention to the fact that, according to the plaintiff, even insofar as the First Signboard was concerned, the defendant No,3 had failed to comply with the order of the Court, as reproduced above. Learned counsel submitted that the Nazir and Assistant Registrar (OS-II) had made more than one inspection of the site, and had filed reports from time to time in relation to such inspections. He referred in particular to the report dated 12-7-2010, and the photographs annexed therewith which, according to learned counsel, clearly showed that there were two signboards of the defendant No,3 on the strip. Learned counsel submitted further that insofar as the Second Signboard was concerned, no permission had been obtained from, or granted by the defendant No,2 in a lawful and proper manner and that the work being carried out on the strip in respect thereof was clearly contrary to the standing instructions and orders of the Clifton Cantonment Board. Learned counsel contended that if the Second Signboard was allowed to be completed, it would materially interfere with the easementary rights of the plaintiff, even moreso than the First Signboard and he submitted that the plaintiff was therefore, entitled to interim injunctive relief. In support of his contention, learned counsel placed reliance on Clifton Centre Association v. City District Government, Karachi and others PLD 2003 Karachi 477 and Clifton and Defence Traders Welfare Association v. President, Clifton Cantonment Board and others PLD 2003 Karachi 495. He contended that all the ingredients necessary for the grant of interim relief existed in favour of the plaintiff and prayed that the application be allowed.
5. Learned counsel for the defendant No,3, in reply, referred to the relief that had been sought by the plaintiff by means of the earlier application C.M.A. No,309 of 2008 and the relief now being sought by means of the present application. His case was that the relief sought in the two applications was identical. Learned counsel contended, and this was the cornerstone of his reply, that there were, in fact, not two signboards, but only one signboard, namely the First Signboard of the defendant on the strip. He refuted entirely the allegations made by the plaintiff that the defendant No,3 was in the process of erecting another signboard on the strip. His contention was that under the guise of the present application, the plaintiff was, in fact, re-agitating the issues, and seeking the relief, that it had raised and sought by means of the earlier application C.M.A. No,309 of 2008. Learned counsel contended that that application had been dismissed and the High Court Appeal against the same had also failed. He, therefore, submitted that it was not open to the plaintiff to continuously re-agitate, even in the context of interim relief, the same issues over and over again. Insofar as the directions given by the Court while dismissing the plaintiffs earlier application were concerned, learned counsel submitted that any delay in payment of the licence fee to the defendant No,2 had, in fact, been occasioned by the ad interim order that had earlier been operating, and once that orders stood recalled by reason of the dismissal of the first application, the licence fee had been duly paid. Learned counsel submitted that this was the payment to which the plaintiff sought to give the colour of being the yment in respect of the Second Signboard and contended that this was no correct. As regards the other directions given by means of the order dated 13-1-2010 noted above, namely that the height of the First Signboard be raised by 15 ft., learned counsel contended that on a technical examination of the matter, it was found that if the signboard-were raised in such manner, there was a possibility that it might prove unstable under sustained gusts of wind at high speed. He submitted that the bottom 15 ft. Of the signboard was therefore removed, which, according to him, had the effect of both complying with the order of the Court and retaining the stability of the structure.
6. As regards the groundwork on the strip referred to by learned counsel for the plaintiff, learned counsel for the defendant No,3 contended that that work was in order to provide two more supports to the First Signboard, in order to further strengthen its stability. Finally, learned counsel contended that the undertaking that had been required from the defendant No,3 had been duly given to the Nazir of this Court. On the merits, learned counsel submitted that the First Signboard had been erected on the strip as long ago as 2001, whereas the construction of the car showroom on the subject plot by the plaintiff had only begun in 2006. His case was that since the defendant No,3's signboard was earlier in time, the rights of the defendant associated therewith could not be defeated by the subsequently constructed showroom. In this regard learned counsel also referred to the decision in the Clifton Centre Association case (supra). He therefore submitted that the plaintiff had failed to make out any case for interim injunctive relief and that the application merited dismissal.
7. I have heard learned counsel for the parties and have examined the record with their assistance and have gone through the two decisions noted above, one of which has, in fact, been relied upon by both the learned counsel appearing in the matter. The first point that requires consideration is the objection taken by learned counsel for the plaintiff that the defendant No,3 has not complied with the directions given by means of the order dated 13-1-2010. I am satisfied on the basis of the submissions made by learned counsel for defendant No,3 that the said defendant has complied with requirements of the order as noted above, and in particular that the removal of the bottom 15 feet of the First Signboard has the same effect as would have been achieved by raising the entire signboard by the said height. In my view, the key issue that requires determination in this application is whether there is only one signboard of the defendant No,3 on the strip, or there are two such signboards. If there is only one signboard then obviously that has to be the First Signboard since it is nobody's case that the First Signboard has been removed or taken down. If such be the case, then clearly the earlier round between the parties, and in particular the order dated 13-1-2010 made in the suit and the order dated 11-3-2011 made in H.C.A. 20 of 2010, operate as res judicata and the matter decided thereby cannot be re-agitated by means of the present application.i This is so because it is well-settled that the principles of res judicata are applicable even in A relation to interlocutory applications and proceedings within the same suit.
8. In support of his contention that the defendant No,3 has erected, or is in the process of erecting, the Second Signboard on the strip, learned counsel for the plaintiff has strongly relied upon the Commissioner's report dated 12-7-2010. I have carefully gone through this report as well as the photographs that have been taken' by the Commissioner and annexed to his report. In my view, an examination of the report and photographs leads to the conclusion that there is only one signboard belonging to the defendant No,3 on the strip, and not two signboards. Learned counsel for the plaintiff referred in particular to paragraphs Nos.2 and 5 of the Commissioner's report, but on an examination of the same I am unable to agree with him that these paragraphs show that there are two signboards of the defendant No,3 on the strip. The photographs taken by the Commissioner and annexed to his report certainly do not support the contention raised by learned counsel for the plaintiff. Learned counsel for the plaintiff had also placed reliance on the photographs taken by the plaintiff itself and annexed to the affidavit filed in support of the present application. In my view, there is nothing to indicate from the said photographs specifically relied upon for this purpose, being P/3-2 and P/3-3, that they show that any foundational work has been, or is being, carried out in relation to the erection of the Second Signboard. Whether or not these photographs indicate what learned counsel for defendant No,3 has contended, namely, that the said defendant is installing further supports for the First Signboard, is not something that needs to be decided. This is so because in my view, for purposes of the present application, the onus lies on the plaintiff to show that the defendant No,3 has erected or is engaged in the erection of the Second Signboard and as noted, no such conclusion can be drawn from the material that has been placed on the record.
9. Insofar as two decisions of this Court relied upon by learned counsel for the parties are concerned, the observations made in the said decisions would obviously apply only if it was found, as a matter of fact, that the Second Signboard had been, or was being, erected. Since, as already noted, no such conclusion can be drawn from the record as it stands, it is not necessary for me to examine these decisions in any detail.
10. In view of what has been stated hereinabove, I am of the view that the plaintiff has been unable to discharge the burden placed on it to satisfy the Court that the defendant No,3 has erected, or is in the process of erecting, the Second Signboard on the strip. It necessarily follows that the only grievance that the plaintiff can possibly have is in respect of the First Signboard which, as noted above, is a matter that already stands decided between the parties, insofar as the stage of interlocutory proceedings is concerned. Accordingly, in my view, the plaintiff has been unable to make out a case for any relief by means of the present application, which is hereby dismissed.