' MUHAMMAD IQBAL KALHORO, J.---This order is disposing of the listed applications (C.M.A. No, 17538/2014) filed by the plaintiffs under Order XXXIX Rules 1 and 2, C.P.C. Seeking ad-interim injunction; and (C.M.A. No,16825/2015) filed by Defendant No, 1 under Order XXXIX, Rule 4, C.P.C.
Seeking modification in the orders passed by this Court on 29.12.2014 and 09.01.2015.
2. This suit is concerned, among others, with the claim of the plaintiffs that proposed multi-storey building being constructed on Plot No, 1/8 in Block No,1-A, Nazimabad No,1, Karachi by defendant No,1/Messers M. Kamil Builders and Developers is without an approved plan. And it would violate their easement and privacy rights. The excavation work so far carried out by Defendant No,1 has damaged the walls and underground water tank of the plaintiff No, 2's house. The plaintiffs have also filed the application (C.M.A. 17538/2014) for granting ad-interim injunction to restrain defendant No,1 from raising any construction on the suit plot. Record revels that on 29.12.2014 when this matter was first taken up by this Court, a restraining order was passed whereby Defendant No,1 was stopped from carrying on construction contrary to the plan if already approved with further directions to all the defendants to take immediate steps to stop further loss to the boundary walls of the plaintiffs' house. Nazir was appointed to inspect the premises and submit his report. He submitted his report on 09.01.2015 disclosing that boundary wall of Plaintiff No,2's house towards suit land was not found, which, he was informed, had fallen down due to excavation Work on the suit plot. Report further shows that the Nazir was apprised by the official of SBCA at the spot that the plan for building was not yet approved and it was in such process. In the light of such report, this Court passed order on 09.01.2015 observing that the work done by Defendant No,1 for construction was without approval of SBCA, hence Defendant No,4/Sr. Superintendent of Police, Nazimabad, Karachi and Defendant No,5/SHO Rizvia Society Police Station, Karachi were directed to ensure that till further directions the suit land remained sealed. Feeling aggrieved by such directions, Defendant No,1 has filed C.M.A. 16825/2015 seeking permission to raise construction as per approved plan.
3. Ms. Sarwat Israr, learned counsel for Defendant No,1 in support of the application stated that at the time when the excavation work on the suit land had started, the approved plan was in the pipeline of approval, and under the bona fide impression of its getting approved the work of construction was started. According to her, after the due process the plan had been approved and since then there was no impediment in the way of construction. She stated that the suit area was not a residential one as claimed by the plaintiff but was a commercial one. In order to establish her point, she referred to the very letter of SBCA dated 16.11.2015 filed at Annexure A-5 of the application.
As regards the easement and privacy rights of the plaintiffs, she stated that the plaintiffs were required first to establish them specifically during the trial; and until then no prohibitory order stopping the construction of the building could be passed as it would seriously deteriorate the economic position and reputation of the defendant No,!. She made a categorical statement that entire building would be constructed as per approved plan and no violations of rules and regulations would be committed by Defendant No, 1.
4. Mr. Muhammad Mustafa Hussain, learned counsel for the plaintiffs contended that Defendant No,1 had not yet got the boundary walls of plaintiff's house repaired or re-erected as per directions of this Court contained in the orders dated 29.12.2014 and 09.01.2015. According to him, the plaintiffs were entitled to independently raise objections to the construction of the building irrespective of the fact whether the building plan was approved or not, if it violated their easement and privacy rights. He referred to the condition at serial No,21 in the SBCA letter dated 16.11.2015 approving the building plan, wherein it is specifically mentioned that such approval is subject to the condition that the construction shall be restarted after the finalization of the present civil suit. He was of the view that such condition showed that Defendant No,1 itself had made a commitment before SBCA that he would not start construction until finalization of the suit; therefore, at this stage the construction of the building could not be allowed. He argued that prima facie case was in favour of the plaintiffs as the construction of the building had already damaged the outer portion of their houses and the building would violate their easement rights. He stated that balance of convenience also lied in favour of the plaintiffs as once the building was erected, and then even if it was proved that it was violattng the easement and privacy rights of the plaintiffs and causing hindrance to their normal lives, its demolition would be impossible, and the plaintiffs would suffer irreparable loss.
5. I heard the counsel and perused the relevant record. Almost a similar question came up before the Divisional Bench of this Court in the case of Naseer Ahmed v. Hafiz Muhammad Ahmed and 17 others (1984 CLC 340). The dictum that was laid down in the above case speaks that any ground of nuisance and infringement of easement rights need to be established by evidence and mere assertion of such infringement would not be sufficient. In para No,3 of the plaint, the plaintiffs have referred to the infringement of their easement rights by stating that the proposed building would be having large windows on the either side of the buildings that would overlook their residences and thus would violate their privacy rights. It is also claimed therein that people occupying the flats would throw their trash in their houses. In the same para, it has also been stressed that the building would hinder air, light, and sunshine to plaintiffs' residence. It is, however, obvious from a reading of above and the remaining contents of the plaint that the plaintiffs have spoken about the infringement of their rights in general terms without specifying the direction of wind and sunlight that could be blocked from entering into their houses by the proposed building. More so these assertions are factual in nature and in view of the abovementioned dictum laid down by this court can be only appreciated in the trial. It has been the consistent view of this Court that without proving infringement of easement or privacy rights, merely on the basis of alleged violation thereof, the defendants cannot be restrained from raising the construction, which is being carried on strictly in accordance with the approved plan. Reference in this regard can be made to the cases of Mst. Seema and others v. Messrs Millennum Developers and others (2003 CLC 632), Syed Tahir Hussain Mahmoodi and 7 others v. Tayyab and others (2009 CLC 1254), Mrs. Alba D'sa and others v.
Mrs. Naheed Pabani and others (2008 YLR 738) and Nighat Jamal v. Province of Sindh and others (2010 YLR 2624). The current position is that the building plan has been approved by the competent authority (SBCA); and the road where the proposed building is to be raised is stated by learned counsel for defendants No,1 to have been declared as commercial. In view of such development and the fact that some investment must have been made by defendant, I am of the view that balance of convenience does not lie in favour of the plaintiffs rather defendant No,1 would suffer irreparable loss if injunction is allowed to continuously operate against it.
6. In view of above discussion, I see no merits in the application C.M.A. No, 17538/2014 moved under Order XXXIX, Rules 1 and 2, C.P.C. By the plaintiffs, which is accordingly dismissed. The Application C.M.A. No,16825/2015 filed by Defendant No,1 under Order XXXIX, Rule 4, C.P.C. Is also disposed of in these terms. Nonetheless, the observations contained in the orders passed by thin Court on dated 29.12.2014 and 09.01.2015 to the extent of restoring the boundary wall of the plaintiff No. 2's house by 'defendant No,1 shall remain intact.