' SYED SAEED UDDIN NASIR, J.--- This is a suit for Declaration, Mandatory and Permanent Injunction filed by the plaintiff with the following prayers:---
(a) Declare that the plaintiff is entitled to use and enjoy 10' x 0" wide corridor/passage situated between Shops Nos. CA-8, CA-9, CA-10, CA-20 and CA-2I and space for amenity between Shops Nos. CA-18 and CA-19 being essential amenity which facility was being enjoyed by the plaintiff since the acquisition of the shop in his possession.
(b) Declare that the defendant No.4 is not entitled to execute any documents whereby allowing the defendants Nos.1 and 2 to occupy 10' x 0" wide corridor/passage situated between Shops Nos.
CA-8, CA-9, CA-10, CA-20 and CA-21 and the defendants Nos.] and 2 are not entitled to occupy 10'-0" wide corridor/common passage and/or raise any construction on the corridor/passage.
(c) Declare that the defendant No.4 is not entitled to execute any documents whereby allowing the defendants Nos.2 and 3 to occupy amenity between Shops Nos. CA-18 and CA-19 and the defendants Nos.2 and 3 are not entitled to occupy the same and/or raise any construction on the said amenity.
(d) Restrain the defendants Nos.4 and 5, their servants, employees and any other person or persons acting on their behalf from allowing the defendants Nos.], 2 and 3 to occupy/raise construction on the 10'-0" wide common passage/corridor between Shops Nos.CA-8, CA-9, CA-10, CA-20 and CA-21 and occupy/raise construction between Shops Nos. CA-18 and CA-19, which is meant for amenity.
(e) Directing the defendants Nos.1, 2 and 3 to remove encroachments between their shops in case of their failure the defendant No.5 may not be directed to remove the above said encroachments.
(f) Granting cost of the suit.
(g) Any other further and better relief, which this Hon'ble Court may deem fit and proper under the circumstances.
2. The facts of the case are that the plaintiff is owner of Shop No.CA-11, Hassan Centre, on ground floor on Plot No.FL-1, Building 'A', Block-16, Gulshan-e-Iqbal, Karachi wherein the plaintiff is carrying on his business under the name and style of Noor Curtain. The plaintiff purchased the suit property from the defendant No.4 vide indenture of Sub-Lease, duly registered at bearing Registration No.5352, Book No.1 st Addl. On 28-9-1986 before Sub-Registrar, T-Division-IV, Karachi. The learned counsel for the plaintiff contended that the defendant No.4 acquired plot of land bearing No.FL-1, Brock-16, K.D.A. Scheme No.24, Gulshan-e-Iqbal, Karachi from the defunct KDA, now City District Government Karachi vide Lease Deed bearing Registered No.2761 dated 12-4-1978 at Pages 98 to 101, Volume 1449 of Book-1, Addl. And the said plot was acquired for construction of multi storyed building for which defendant No.4 obtained approval for construction, which comprises of shops on the ground floor and residential flats on upper floors and the said approval was granted vide letter No.AC/BP-1887/78/3163 dated 4-11-1978. He has further contended that the defendant No.4 in order to construct and dispose of shops and flats, to be constructed on the said plot of land got approved draft of Sub-Lease vide letter No.KDA/Land/Gul/CC/316 dated 31-8-1980 and the said firm raised construction of shops on the ground floor and residential flats on upper floors in accordance with approved plan.
3. The learned counsel for the plaintiff next contended that the defendant No.4 constructed 28 shops on the ground floor. The shops were constructed in two rows facing each other; in between the shops a corridor/open space, 10' x 0" vide has been left. In one row there are shops bearing No.CA-1 to CA-15 and in other row there are shops bearing No.CA-16 to CA-28, beside 10' x 0" wide corridor in between two rows of the said shops, other corridors/open spaces have also been provided (a) in between Shops Nos.CA-3 and CA-4 (b) in between Shops Nos.CA-11 and CA-12, (c) in between Shops Nos.CA-18 and CA-19 and (d) In between Shops Nos.CA-24 and CA-25. In between the shops, Toilets and Kitchen were also constructed as Amenity for the owners/occupants of the shops, constructed on the ground floor, which fact is evident from the construction plan or the Elevation of Building constructed on the said plot of land. He has further contended that all shops constructed by the defendant No.4 were to be sold out by them to the respective purchasers. The Shops Nos.CA-9, CA-10, CA-19 and CA-20 are in the ownership of the defendant No.2 and shop No.CA-18 in the ownership of the defendant No.3. The owners of Shops Nos.CA-8, CA-9, CA-10, CA-20 and CA-21 viz defendant No.2 have illegally encroached the entire 10' x 0",wide corridor in front of their shops and likewise the owners of Shops Nos. CA-18 and CA-19, viz the defendant No.2 and defendant No.3 h'ave also illegally encroached the entire corridor/space for amenity between their shops. Hence, they have deprived the Plaintiff and other shops owners of essential amenity of Toilet and Kitchen as the said amenity was constructed for shops owners and they were enjoying the same since the day the shops were acquired. It is further stated doors facing corridor are towards eastern side through which shopkeepers were receiving fresh air and light and they are unable to avail the said facility.
4. The learnedcounsel for the plaintiff contended that the plaintiff has sent legal notice through his counsel to the defendants Nos.1, 2, 3 and 4 on 2-6-2007 and Statutory Notice to the defendant No.5.
The defendant No.2 replied the said legal notice vide its reply dated 17-6-2007 through his counsel whereby impliedly refused to accept the request of the plaintiff. He has next contended that defendants Nos.2 and 3 are liable to remove encroachment between Shops Nos.CA-18 and CA-19 and defendants Nos.1 and 2 are liable to remove encroachment between Shops Nos.CA-8, CA-9 and CA-10 and CA-20 and CA-21 i.e. From 10' x 0" vide corridor. The defendant No.4 is liable to ,cancel lease of the defendants Nos.1, 2 and 3 if they do not remove encroachment. The defendant No.5 is also liable to remove the above said encroachments.
5. The learned counsel for the plaintiff contended that if the defendant No.4 has allowed the defendants Nos.1, 2 and 3 to occupy the corridor/common passage by executing any deed/document authorizing the defendants Nos.1, 2 and 3 to occupy corridor/common passage and/or doing or causing to be done anything prejudicial to the rights, title or interest of the plaintiff in respect of the said shops, the same shall also be liable to be cancelled and the defendants Nos.4 and 5 were/are not entitled to make any amendment in the original plan, approved by the defendant No.5.
6. The defendant No.2 filed a written statement on 12-2-2009 wherein paras Nos.4 and 5 the defendant No.2 has stated that at the time of purchase of the suit shops, the spaces between the shops were already covered by the owner of the shops. The spaces between the other shops are also covered and used by the respective shops owners. The defendant No.2 further stated in para- 5 of his written statement that defendant No.2 purchased the suit shops along with the spaces between them and paid huge amount in this respect to the defendant No.4 i.e. Builder. It is further submitted that at the time of purchase of suit shops, the places between the shops was also in occupation of the builders i.e. Defendant. No.4. The defendant No.5 i.e. KBCA filed written statement wherein it is clearly stated in para-8 that there exists serious violation of encroachment of compulsory open space wherein in Hassan Centre which is seriously affecting the shopkeepers. In para-10 of the written statement defendant No.5 has admitted the contents of para-10 of the plaint and has stated that the defendant No.4 has committed the serious violation while encroaching upon compulsory open space of suit shops. The aforesaid encroachment was very old, however, the defendant No.5 is always dutiful in carrying out demolition of encroachment subject to decision of this Court. The defendant No.5 further stated that nobody has any right to make any illegal amendment in the building in violation of the approved plan.
7. The proposed issues filed by the plaintiff were adopted on 23-1-2013 which are as follows:---
(i) Whether at the time of execution of sub-lease deed dated 28-9-1986 in favour of the plaintiff by the defendant No.4, there existed 10' wide corridor between shop No.C.A-11 and shop No . CA-19?
(ii) Whether the defendants Nos.1, 2 and 3 have occupied 10' wide passage/corridor in front of Shops Nos.CA-11, CA-12, CA-18 and CA-19?
(iii) Whether the defendants Nos.1, 2, and 3 have any title/sub-lease in their favour in respect of 10' wide passage in front of Shops Nos. CA-18, CA-19, CA-20 and CA-21?
' Whether the defendants are liable to clear/re-open/restore the corridor in question?
(v) Whether the plaintiff is entitled to the relief/s claimed?
(vi) What should the decree be?
8. This Court vide order dated 27-5-2013 appointed Commissioner for recording evidence. The plaintiff filed his affidavit in evidence on 24-9-2013 and along with affidavit-in-evidence he has produced copy of lease deed dated 28-9-1986 as exhibit-P/1, copy of approval of construction map as exhibit P/2, copies of photographs as exhibit P/3 to P/10 and lastly legal notice and reply as exhibit P/11 and P/12. The plaintiff examined his witnesses namely Zahooruddin who also supported the version of the plaintiff in the plaint as well as in affidavit-in-evidence but neither the defendant nor his counsel appeared before the learned Commissioner for the purpose of cross-examination of the plaintiff or plaintiff's witness. On 24-9-2013 Examination in Chief was recorded by Mr. Iftikhar Javed Qazi, learned counsel for the plaintiff and his witness Syed Zaheeruddin son of Syed Zainuddin, and thereafter, several chances were afforded to the defendants but the defendants and their counsel failed to appear before the learned Commissioner. Learned Commissioner as a last chance fixed the matter for cross-examination of the plaintiff on 26-12-2013 but the defendants once again failed to appear before the learned Commissioner on the said date and thereafter the side of the defendants was closed.
In view of the above I hold that the plaintiff discharged the onus with regard to proving the Issues Nos.1 to 5. It is an admitted position that the defendants failed to lead evidence before the Commissioner and the evidence of the plaintiff is unrebutted. Under the circumstances I hold that this is a matter where the defendants have fail to lead evidence. Under the settled principles of law, if the defendants fail to leave evidence, the written statement filed by them should also be discarded.
I therefore, hold that the defendants' pleadings in written statement could not be looked into as they did not lead evidence. I am fortified in my view by the cases of Faqir Muhammad v. Abdul Momin reported in PLD 2003 SC 594 and Muhammad Bashir v. Iftikhar All reported in PLD 2004 SC
465. For the aforesaid reasons I am of the considered view that the Issues Nos.1 to 5 are answered in favour of the plaintiff and the suit is decreed as prayed.
' Above are the reasons of my short order which I announced in open Court on 17-10-2014 by which I decreed the suit as prayed.