' This is an application under. Order XXXIX, rule 4 read with section 151, C. P. C., moved by the private defendants for setting aside or varying the order dated 5-8-1979 of this Court allowing the plaintiff's application under Order XXXIX, rules 1 and 2, C. P. C., confirming the interim injunction granted in favour of the plaintiff restraining the defendants from raising construction beyond two floors (ground and first) on defendants' adjoining plot.
2. Plot No, 275-A, Garden East, Karachi is owned by the plaintiff and the adjacent Plot No, 275 is owned by defendants 1 and 2, who had purchased this property from its previous owner in April, 1978. By an order dated 19-6-1978 the Deputy Commissioner, South, Karachi, permitted the defendants to construct a five-storeyed residential building on their plot. On 5th December, 1978, the defendants got the building plans approved by the Karachi Metropolitan Corporation for construction of the five-stroyed building subject to the N.
0. C. Of the owners of the adjoining plot. According to the defendants, after their plans had been sanctioned by K. M. C., as aforesaid, and after fulfilling other formalities they demolished the existing structure and started raising construction over their plot. They completed the construction of the ground floor as well as on the first floor by May, 1979 and before the present suit was filed in July, 1979, R. C. C. Pillars and roof beam of the second floor were also fully constructed and shuttering of the roof was put up and iron bars were placed on the same, and all building materials such as reti, bajri and cement were purchased and brought to the site and all necessary advance payments were made to the labourers for filling the roof of the second floor.
3. The above suit was filed by the plaintiff on 19-7-1979, in this Court and by the order dated 21-7- 1979, ad-interim injunction was granted restraining the private defendants from raising construction beyond two storeys on the plot in question. After hearing the parties, the ad interim injunction was confirmed by an order dated 5-8-1979 of this Court. The final paragraph of the order granting the relief to the plaintiff reads as follows :-- "To sum up, permission of the Deputy Commissioner being in violation of the Regulation and condition of the grant, and was given without hearing the persons affected by it, is prima fade not legal and without lawful authority. Plaintiff has made out a good prima facie case in his favour. If the building is allowed to be completed, the plaintiff would suffer irreparable loss as his right of privacy would continue to be infringed.
' Injunction is, therefore, confirmed."
4. The defendants Nos. 1 and 2 filed before the Supreme Court a Petition for Special Leave to Appeal No, K-240 of 1979 against the order dated 5-8-1979. At the time of the hearing of the petition before the Supreme Court of Pakistan, the plaintiff was also represented by counsel. The said Petition for Special Leave to Appeal before the Supreme Court of Pakistan was withdrawn by the defendants with permission to file an application for interim relief in view of the provisions of the Sind Buildings Control Ordinance No, V of 1979. The final paragraphs of the order dated 10-10-1979 of the Supreme Court of Pakistan in C. P. S. L. A. No, K-240 of 1979 are reproduced here : "Mr. Arleen submitted that by his observations in the impugned order the learned Judge had decided the case against the petitioners at interlocutory stage of the proceedings. The submission is not correct. But in any event, we would clarify that observations in an interlocutory order are necessarily of a tentative nature, therefore, learned counsel's apprehension that the case of the petitioners has been decided against them is not justified at all. Learned counsel then submitted that the direction given by the K. M. C. To the petitioners to obtain the consent of the owners of the adjoining plots to their proposed construction was no longer valid, because of the provisions of the Sind Buildings Control Ordinance, 1979, but enquired why the attention of the learned Judge was not drawn to this Ordinance, learned counsel's reply was that the attention of the learned Judge could not be drawn to this Ordinance because it had been promulgated after the date of the impugned order. As the Ordinance has been promulgated after the date of the impugned order, we would refrain from making any observations whatever on it, because the learned Judge could only decide the application before him according to the law as it stood on the date of his order.
However, we observed that the petitioners any, if so advised, filed an application for interim relief in the High Court on the basis of this Ordinance, and we have no doubt that if any such application is filed, it will be decided according to law.
' Mr. Arfeen then stated that he wished to withdraw this petition with permission to file an application for interim relief in the High Court. The petition is dismissed, as withdrawn and the petitioners are free to prosecute whatever remedies are available to them in law.
' Finally, before parting with this order, we have to observe that the questions raised in the suit of the first respondent are questions of great importance for people in the city of Karachi. Therefore, it would be in the fitness of things if the suit of the first respondent was disposed of expeditiously. We are aware of the arrears of litigation in the High Court, but in view of the importance of the questions raised in the first respondent's suit, we hope that the High Court will hear and decide the first respondent's suit within one year."
5. In brief the Supreme Court allowed the defendants to withdraw their petition to allow them with permission to file an application before this Court for interim relief in view of the provisions of the Sind Buildings Control Ordinance, 1979. The Supreme Court has further observed that the questions raised in the suit were questions of great importance for people in the city of Karachi and, therefore, they hoped that the High Court would hear and decide the suit within one year i,e, by October, 1980.
6. After the aforesaid order date 10-10-1979 of the Supreme Court of Pakistan, the defendants 1 and 2 moved the present application under Order XXXIX, rule 4 read with section 151, C. P. C., praying this Court to set aside, discharge or vary the order dated 5-8-1979 of this Court granting temporary injunction against from raising construction on their plot beyond two storeys. Alongwith this application which was supported with an affidavit of defendant No. 1, copy of the letter dated 18-9- 1979 of the Authority under the Sind Buildings Control Ordinance, 1975 addressed to the defendants was also filed. This letter of the Authority reads as follows :- "You are hereby informed that Building Plans for Garden area are being approved without imposing any condition of obtaining N.
0. C. From the adjoining owner. The condition imposed on Plot 275 Garden East is also waived.
However, conditions of the C. D. C. Office should be complied with."
7. In reply, counter affidavit was filed by the plaintiff supported by copies of various documents and orders. These documents included the memo of appeal under section 16 of the 1979 Ordinance filed by the plaintiff before the Government of Sind against the order dated 18-9-1979 of the Authority reproduced in the previous paragraph. Further additional affidavits and replies were filed by the parties. Alongwith the additional counter affidavit of the plaintiff dated 5-4-1980 copy of the letter dated 31-3-1980 from the Authority under the 1979 Ordinance addressed to the defendants was also filed. Copy of this letter was endorsed to the plaintiff. This letter dated 31-3-1980 reads as follows: "The letter issued vide this Office No, AC/BP-714/78 of 1905 dated 18-9-1979 hereby cancelled, and the condition imposed on plan approved vide No, AC/BP-719/78/1042, dated 5-12-1978, holds goods."
8. During the course of the argument before me Mr. A. A. Fazeel, the learned counsel for the plaintiff, raised an objection to the maintainability of the present application under Order XXXIX, rule 4, C.P.C.
Moved by the defendants. According to the learned counsel the argument presented on behalf of the defendants before the Supreme Court was on the basis of the Sind Buildings Control Ordinance, 1979, which law, according to the statement made by the counsel who appeared on behalf of the defendants in the Supreme Court, was promulgated after 5-8-1979, the date of the Order of this Court confirming the ad interim injunction in favour of the plaintiff. Mr. A. A. Fazeel specially drew my attention to the following observations in the Order dated 10-10-1979, of the Supreme Court of Pakistan : ' . . .But we enquired why the attention of the learned Judge was not drawn to this Ordinance, learned counsel's reply was that the attention of the learned Judge could not be drawn to this Ordinance because it had been promulgated after the date of the impugned order. As the Ordinance has been promulgated after the date of the impugned order we would refrain from making any observation whatever on it, because the learned Judge could only decide the application before him according to the law as it stood on the date of his order."
' According to the learned counsel for the plaintiff, the Sind Buildings Control Ordinance, 1979, was promulgated on 3-3-1979 and was enforced with effect from 17-3-1979 when Karachi Development Authority was appointed as the authority under the Ordinance for Karachi Division and on which date the notification to the effect that the Ordinance came into force in Karachi was made.
According to Mr. Fazeel both the date of promulgation of the Ordinance as well as the date of its enforcement were much prior to the date of hearing of the injunction application moved by the plaintiff as well as the date of the ing the ad interim injunction passed by this Court. Mr. Syed Sharifuddin Pirzada, learned counsel for defendants 1 and 2, admitted the dates pointed cut by Mr. Fazeel. His contention, however, was that the application was maintainable in view of the following observation of the Supreme Court of Pakistan in the order of 10th October, 1979 : "However, we observe, the petitioners may if so advised, file an application for interim relief in the High Court on the basis of this Ordinance, and we have no doubt that if any such application is filed, it will be decided according to law."
9. In my view, it was a case of misunderstanding on the part of counsel for both the parties, who were under the wrong impression that the Ordinance in question had not come into force at the time of the hearing and disposal of the plaintiff's injunction application by this Court. This view finds supports from the fact that at the time the Petition for Special Leave to Appeal was argued before the Supreme Court of Pakistan no objection was raised on behalf of the plaintiff', who was duly represented by a counsel and also an Advocate-on-Record before the Supreme Court of Pakistan at the time of the hearing of the said Petition. The contention of the counsel for the defendants before the Supreme Court that Ordinance of 1979 had not come into force at the time the plaintiff's injunction application was argued before and decided by the High Court in July and August, 1979 was apparently not controverted by the plaintiff's counsel at the hearing before the Supreme Court.
This can be presumed from the text of the order of the Supreme Court of Pakistan made on' 10-10- 1979 which was also the date of hearing before the Supreme Court, in these circumstances and in view of the terms in which the Petition for Special Leave to Appeal was disposed of by the Supreme Court, permitting the defendants to file an application for interim relief, I am of the opinion that the present application is maintainable.
10. The scope of the present application will however, be confined to the arguments and the contentions based on the provisions of the Sind Buildings Control Ordinance, 1979, and any other fact or circumstance that has occurred or has taken place since the disposal of the plaintiff's application for temporary injunction to entitle the defendants to seek the discharge or modification of the order dated 5-8- 1979 of this Court.
11. In view of the arguments addressed before me, the following points require consideration for the disposal of the present application :-
(a) Provisions of the Sind Buildings Control Ordinance, 1979 and the contents of the letters dated 18- 9-1979 and 31-3-1980.
(b) The restricted prayer made on behalf of the defendants during arguments before me that till the disposal of the suit the defendants be allowed to construct upto 3 storeys, i,e,. Ground plus two floors.
(c) The unconditional undertaking given by the learned counsel on behalf of the defendants that in case the defendants are permitted to construct the third storey but latter on if it is decided finally in the suit that the defendants were not entitled to construct beyond two storeys, the defendants would demolish the third storey.
11-A. The learned counsel for the defendants has invited my attention to sections 2 and 6 of the Sind Buildings Control Ordinance, 1979. According to section 2 nothing contained in any other law for the time being in force shall apply to any matter regulated by the Ordinance. According to section 6, no building shall be constructed unless the plans are approved by the Authority and in case of any building construction whereof had commenced before coming into force of the Ordinance the Authority's approval of the plans and N.O.C. Shall be obtained within 6 months of the enforcement of the Ordinance. According to the learned counsel for the defendants the present Ordinance is applicable notwithstanding anything contained in any other law for the time being in force and under section .6 approval of the plan was granted by the Authority through their letter of 18-9-1979 which also stated that the N.
0. C. Required under the K. M. C. Approval was no longer required. As a restful, therefore, the defendants were entitled to make construction without the N. O. C. From the neighbours. Mr. Fazeel's reply was that there was no provision in the 1979 Ordinance which in any way affected the previous restrictions.
12. The point raised by the learned counsel for the defendants is an arguable point. The Authority appointed under the 1979 Ordinance itself is not sure of the position as would be evident from its two contradictory letters dated 18-9-1980 and 31-3-19S0. It is significant to note that a perusal of the two letters shows them to be signed by the same officer. I do not want to make any observations at this stage, but I might add that the necessity or otherwise of obtaining N. O. C. From the neighbours in view of the provisions of the Sind Buildings Control Ordinance, 197), is a question not free from difficulties. The question, as well as the question whether the restrictions imposed previously would continue to remain valid after the promulgation of the 1979 Ordinance and also the question of statutory nature or otherwise of the circular of the collector restricting the buildings in Garden area of Karachi to two floors in view of this Ordinance will be decided finally at the trial of the suit. The Supreme Court of Pakistan has also, in its order dated 10-10-1979, observed that the questions raised in the suit are questions of great importance for the people in the city of Karachi.
13. In the circumstance, the fate of the present application will be decided on the question of balance of convenience in view of the restricted prayer made on behalf of the defendants that they may be permitted to complete construction upto 2nd floor, i,e, ground plans two floors. On this point, the learned counsel for the defendants has argued that the plaintiff's building is 36 feet high and the previous structure on the defendants' plot was 32 feet high (which facts are admitted) and whatever rights as to easement in relation to light and air and to privacy, the plaintiff claims could not have become greater on account of the demolition of the previous building and construction of a new building on the adjacent plot. According to him two floors have already been constructed and till the disposal of the suit the defendants want a modification of the order dated 5-8-1979 to permit them to construct the third storey, of which shutters had already been put up as far back as May, 1979, and shuttering has been there all along and all this and other investment is going waste and in the process irreparable loss is being caused to the defendants. According to the learned counsel, the height of the building inclusive of the second floor would not exceed 32 feet, and on the second floor there would be only one window facing the property of the plaintiff. In the circumstances, it was contended that as the building upto the roof of the second floor on the plot of the defendants if allowed to be completed, would not exceed the height of the demolished building on the said plot, no right of easement or right of privacy of the plaintiff is going to be affected. The learned counsel was ready to give an unconditional undertaking on behalf of the defendants that if the order dated 5-8-1979 was so modified and in case in the suit it was finally decided that the defendants could not construct the third storey, that is the second floor, the defendants will demolish the third storey. The learned counsel accordingly argued that as the balance of convenience was in favour of the defendants and even if the third storey was constructed by the defendants, it would not affect the alleged rights of easement and right of privacy of the plaintiff, the order dated 5-8-1979 of this Court may be modified and the defendants Nos. 1 and 2 may be allowed to complete the third storey, the height of which building after completion of the third storey would not be higher than the demolished building on the defendant's plot. Mr. Syed Sharifuddin Prizada referred to the case of Bishan Das v. Behari Lal (1) in which a party who had given an undertaking before the Court that he would demolish the obstructive portion of his building in case the other party succeeded in the suit, was not permitted to go back on his undertaking on the ground that it would cause great hardship to him. Learned counsel stated that if his undertaking on behalf of the defendants was accepted, the defendants would not be able to get out of their undertaking in event of the case going against them. Mr. Pirzada further contended that this was a case where both parties should be put to terms so that irreparable loss and prejudice is not caused to either party. On the question of putting the parties to terms reference was made to two judgments of the Supreme Court of Pakistan reported in 1980 SCMR 588 and 1979 SCM R 77.
14. The learned counsel for the plaintiff, however, has strongly opposed this plea made on behalf of the defendants and argued firstly that no case has been made out for modification of the order dated 5-8-1979 and secondly that once the building was allowed to be constructed upto the third storey, it will become a fait accompli and then it would be difficult or impracticable to demolish the third storey in case it was finally determined that the defendants could not, under the law and in terms of their lease, construct the third storey. In support of his contention, the learned counsel relied on the case of Thomas Ban v. Parvathy Ommini (2) in which references have been made to a decision of the Calcutta High Court reported in AIR 1914 Cal. 362 and two rulings from England.
Relying upon these cases, Mr. A. A. Fazeel contended that. In a case like the present one, the defendants ought not to be allowed to raise any further construction on their plot.
15. The Revision application decided by T. C. Raghavan, J. In the case of Thomas Ben reported in AIR 1961 Ker. 16 arose out of a suit filed by the plaintiffs for injunction restraining the defendants from constructing any building in the suit property. Before the trial Court the petitioner (defendant in the suit) gave an undertaking that the building he was constructing would be removed without raising any claim for compensation in case the plaintiff established their claim to recover possession of the property and the trial Court on the basis of this undertaking dismissed the application for injunction. The appellate Court, which reversed the decision of the trial Court and issued an injunction restraining the defendant from putting up the building pending the suit. The defendant questioned the correctness of this decision of the first appellate Court in revision before the Kerala High Court. Para. 2 of this reported judgment may be reproduced here with advantage :- "The lower appellate Court has relied on a decision of the Calcutta High Court in Ismail v. Samser Rahman AIR 1914 Cal. 362 in support of its judgment. Since it involves a principle of law and the same is likely to arise frequently in or Courts, I would quote an extract from the judgment and would consider its effect. The relevant passage at p. 363 reads : ' Under circumstances like these, the matter for consideration at this stage is, where does the balance of convenience lie; it is desireable that the status quo should be allowed to continue to alter the character of the land ? It is well-settled that the Court will not refuse an injunction in a case of this description so as to give the defendants an undue advantage over the plaintiffs. If the defendants in the case before us were allowed to proceed to the completion of the building which has been erected by them on the land, it is indisputable that they will be placed in a position of undue advantage over the plaintiffs. In this connation, reference may be made to the judgment of Sir George Jessel in the case of Ashley v. Glover (1874) 18 Eq 544, where that learned Judge observed as follows : "At all events this being an interlocutory application, let me continue my building, and I will {{FOOT NOTE}}
(1) AIR 1935 Lab. 937 (2) AIR 1962 Ker.
16. {{FOOT NOTE}} ' undertake to pull down" if the Court shall so think fit'. (the underlining is mine). That is a very specious argument to address to the Court but one must have regard to the effect of allowing such a proceeding. Supposing a defendant erects a building at great cost, when he comes to the hearing he will say to this Court : 'Compare the injury to me in pulling down the building, with the injury to the plaintiff in allowing the building to remain'. Ought or ought not the Court to give weight to such a representation? I think upon this point the observations of Vice-Chancellor Kindersly, in the case of Curriers' Company v. Corbet (1860) 2 Dr. & Sm. 355, are very important. The Vice- Chancellor says : 'If the defendant's new buildings had not been completed, there would have been ground for interference by injunction ; but as they have been completed, the question is, whether the Court ought to or would order the pulling down of the buildings or give compensation in damages. The defendant's new buildings are of considerable magnitude and importance while the two houses of the plaintiffs are comparatively of small value and importance ; and it has been decided that in such a case, the Court will not as a matter of course, order the defendant to pull down his new buildings, but will give the party injured by the erection of those buildings compensation in damages. It appears to me that this is precisely one of such cases. Consequently, the learned Vice-Chancellor considered that the buildings being erected, the comparative values of the defendant's buildings and the plaintiff's were sufficient to induce him to refrain from granting and injunction in a case where, if the buildings had not been erected, he would have granted the injunction. If that is so, and if those considerations are to weigh with the Court upon the question of damages or injunction, I ought not to allow the defendant to proceed with his building, which will put him in such an advantageous position as regards the plaintiffs when the case comes to a hearing."
16. The principle in this case decided by the Kerala High Court, however, goes against the contention of the learned counsel for the plaintiff as in the judgments cited in the Kerala Judgment, the facts were different from the facts of the case in the Kerala Judgment. In the case reported in AIR 1962 Ker. 16, the undertaking that has been given to the trial Court was an unconditional undertaking to pull down and remove the building without raising any claim for compensation in case the plaintiffs were found entitled to recover possession of the property. In the other cases cited in the said judgment, no such unconditional undertaking had been given. As a result it was observed in the Kerala High Court judgment that the Calcutta decision had no application to the facts of the case and, therefore, it was held that the decision of the lower Appellate Court was not correct. However, on account of change in the law, the High Court did not consider it proper to straightaway restore the order of the trial Court and in the circumstances allowed the Civil Revision Petition and directed the lower Court to consider the question afresh. The operative part of the judgment of the Kerala High Court reads as follows :- "Apparently the passage cited above supports the view taken by the learned Additional District Judge. But if the reasoning of the learned Judges disclosed in the aforesaid passage is looked at a little more closely, what emerges is that the reasoning does not apply to the facts of the present case. As observed by the learned Judges the question is where does the balance of convenience lie ; is it better that the status quo should be maintained or is it more desirable that the defendant should be allowed to alter the character of the land?
' The undertaking that was contemplated by the aforesaid decision was an undertaking to pull down the building if the Court should so think fit, which meant that the Court in that case had still a discretion to decide at the time of hearing of the suit whether the party injured by the erection of those buildings should be paid compensation in damages or the defendant should be directed to pull down his new building. In such a case, allowing the defendant to build on the land pending suit would mean putting him in an advantageous position as regards the plaintiff when the case comes to a hearing. In the present case the undertaking that was given in the lower Court appears to be an unconditional one to pull down and remove the building without raising any claim for compensation in case the plaintiffs were found entitled to recover possession of the property. In such a case the question of putting the defendant in an advantageous position vis-a-vis the plaintiff does not arise and the Court is not called upon to decide whether it thinks fit to direct the pulling down of the building.
(3) In this view I am inclined to hold that the Calcutta decision has no application to the facts of the present case and, therefore I hold that the decision of the lower appellate Court is not correct."
17. As observed earlier, the question whether the defendants are permitted under the law or the conditions of their lease to construct more than two storeys on their plot in view of the provisions of the 1979 Ordinance is still to be decided at the trial of the suit. The question in this application is, who will be prejudiced more in case the restricted prayer by the defendants to complete the third storey is not granted. In case, the defendants are not allowed to construct the third storey, their losses will continue. Of course it was desired by the Supreme Court of Pakistan in the concluding paragraph of their order dated 10-10-1979, that the main suit should be decided preferably within one year by this Court and in pursuance of the said desire of the Supreme Court, the learned Chief Justice of this Court has passed an order on 15-5-1980 that this case be posted for regular hearing in August. 1980, but on account of the back-log of cases and the pressure of work, it cannot be said with certainty whether this suit will be finally disposed of before 10th October, 1980, as desired by the Supreme Court. If on the other hand, the third story is allowed to be constructed, it has to be seen as to what prejudice it can cause to the plaintiff. As observed earlier, prima facie, the plaintiff cannot have greater rights of easement then what he had when the demolished buildings was still standing on the defendants' plot. The demolished building was 32 feet high and according to the learned counsel A for the defendants, if the defendants are allowed to construct the third storey the total height of the building would not exceed 32 feet and except for one window opening on the second floor no right of easement could possibly be affected. In the window on the proposed second floor is closed and the defendants Nos. 1 and 2 are put to terms to safeguard in an adequate manner the claimed rights of the plaintiff, construction of the third storey by the defendants would neither cause any irreparable harm nor prejudice to the plaintiff. It is not necessary to refer to other contentions of the learned counsel for the patties.
18. In the circumstances, I dispose of the application C. M. A. 651 of 1980 filed by defendants 1 and 2 under Order XXXIX, rule 4 read with section 151, C. P. C., in the following terms :-
(i) The order dated 5-8-1979 passed by this Court allowing plaintiff's application C.M.A. 2720 of 1979, under Order XXXIX, rules 1 and 2 C. P. C., is modified to the extent that the defendants 1 and 2 will not carry out any construction above the third storey on Plot No, 275, Garden East Karachi, till the disposal of this suit.
(ii) On the specific unconditional undertaking given by the defendants1 and 2 that in case the final decision in the suit goes against them they will demolish the third storey, the defendants 1 and z are permitted to complete the construction on the third storey provided the total height of the building including the third storey will not exceed 32 feet and that on the third storey there will be only one window on the side facing Plot No 275-A belonging to the plaintiff and that window also will be kept closed till the disposal of the suit. There will be no other opening on the third storey on the side facing the plaintiff's plot. The entire construction work for the completion of the third storey will be completed within three months of the date of this order.
(iii) The defendants 1 and 2 are restrained from giving possession of the third storey or any part thereof to any person on lease, licence, ownership basis or otherwise, till the final disposal of the suit. This restriction is placed on the defendants so that no complication arises in case third storey is to be demolished.
(iv) There will be no order as to costs.
19. In view of the orders of the Supreme Court of Pakistan dated 10-10-1979 and of the learned Chief Justice of this Court dated 15-5-1980, the suit will be posted for issues in Court on 9-8-1980, documents and list of witnesses will be filed by the parties on or before 16-8-1980 and the suit will be fixed for evidence in the week commencing 23-8-1980.
Disposed of accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.