This is a suit for permanent injunction praying that the defendants be prohibited and restrained from constructing more than ground floor and first floor building on plot No. 63, Garden East and demolition of the third storey on two blocks constructed thereon. The suit was originally filed with the first prayer but thereafter when the evidence had been almost concluded amendment application was filed and the second prayer was allowed to be added. Briefly the facts are that the leasehold right in plot of land bearing No: 62/1, Garden East, was purchased by the father of the plaintiff from Fidai Co-operative Housing Society and a bungalow was constructed thereon in 1952.
After the death of the father of the plaintiff the said plot and building was transferred in the name of the plaintiff, his four brothers and mother, who are residing in the said premises. During the pendency of the suit plaintiff died and his two sons have been brought on record as plaintiffs. The plaintiff had pleaded that there is a custom of privacy. Prevalent in the locality since long as well as in the plaintiff's family. The building is in existence since 1952 and the plaintiff has been enjoying quietly and peacefully the said property with free access of air, use of light and right of privacy for more than 20 years. On the adjoining plot No. 63, Garden East which is on the northern side of the plaintiff's plot there was a two-storeyed bungalow owned by Mr. Sadiq Alvi who sold it to the defendants, who have demolished it and started constructing flats on the said plot. It has been pleaded that the lessees under the lease in the Garden East Area cannot raise more than two storeys inclusive of ground floor. The defendant No. 2 has been impleaded as he is licensed architect employed for the defendant's project. It has been pleaded that the defendant applied for permission to raise three-storeyed residential building on plot No. 63 which was illegally granted by the Deputy Com--missioner, South, Karachi on 2-12-1978. The defendants completed the ground floor and first floor on the three blocks and on two blocks they have constructed three storeys. Now on the third block which is adjacent and abutting to plaintiff's house full preparations have been made for further construction. . It is alleged that the permission granted by the Deputy Com-- missioner, South on 2-12-1978 is without jurisdiction and illegal. It has further been averred that the three-storeyed building will materially diminish the passage of light and air to the building of the plaintiff and would render the plaintiff's building unfit for comfortable living. It will also infringe the right of privacy enjoyed by the plaintiff for more than 20 years. The suit has been valued at Rs.
26,000 on which proper Court-fees has been paid.
2. The defendants have filed written statement in which it has been denied that there is any custom of privacy prevalent in the locality of the Garden East area and in the plaintiff's family. It has been pleaded that the plaintiff as well as the people of the locality are all Ismaili Khojas whose ladies do not observe purdah as such question of there being any custom of purdah does not arise. It has been pleaded that there are no windows or aperture on northern side from which the plaintiff's building could have received air or light except one window which serves as outlet for air, providing cross ventilation only. It has been denied that the plaintiff has ever enjoyed any right of easement or has prescribed any such right. It has been further denied that the lessees in the Garden East area are restricted under law to raise construction up to two storeys. It has been .Pleaded that in the Garden East area permission has been granted for the construction of multistoreyed buildings up to five floors. While denying that the third block of the proposed building is adjacent to the plaintiff's house it has been pleaded that the defendants have left open space as required under the rules. However, the plaintiff has left no side space and has covered it. 1t has been denied that the permission granted by the Deputy Commissioner, South is illegal or void. The construction plan was passed after scrutinizing it from all points of view particularly the flow of light and air. It has been denied that the plaintiff received light and air from northern side. It has been .Pleaded that the sanction granted under Sind Ordinance V of 1979 has not been challenged and as such the plaintiff is not entitled to any relief. It has further been stated that the plaintiff has undervalued the suit.
3. The defendant No. 2 has also filed a written statement stating that the defendant No. 2 is merely an architect and is not a necessary party. On the basis. Of these; pleadings following issues were framed;
(1) Whether there is any custom of privacy prevailing in the locality and/or plaintiff's family as alleged?
(2) Whether the alleged right of privacy is likely to be infringed as alleged?
(3) Whether the plaintiff has acquired the right of easement : of air and light as alleged?
(4) Whether the alleged right of easement of air and light is likely to be interfered on account of the construction of the third floor o1 defendants building so as to constitute cause of action for the plaintiff?
(5) Whether there is any legal restriction on the right of defendants to build more than two storeys on their plot?
(6) Whether the K. M. C. And the Authority under Building Control Ordinance, 1979, have sanctioned the plan for construction of the third floor in the defendant's plot? If so, its effect?
(7) Whether the sanction granted by the K. M. t;. Is illegal and of no effect?
(8) Whether the defendant No. 2, is a proper or necessary party?
(9) To what relief if any, is the plaintiff entitled?
(10) Whether the suit has properly been valued?
(11) Whether the plaintiff is estopped from claiming the relief of demoli--tion of the 3rd storey on the two blocks ?
4. In all there are 5 suits including the present one in which some common points are involved and they have proceeded together. With the consent of parties the evidence of official witnesses recorded in these suit shall read as common evidence in all the suits. The points involved in suit No. 560/79 are similar to this suit. Therefore such issues which are common in both the suits and have been exhaustively dealt with in Suit No. 560/79 will not be discussed in detail in the present suit and only reference will be made to the judgment in Suit No. 560/79.
5. Issue No. l.-This issue and the legal implications arising out of a claim of customary right of privacy has exhaustively been dealt with in Suit No. 560/79. 1 would only briefly refer to the evidence recorded in this suit. The evidence recorded in the present case is very brief and short. P. W. 2 Ali Bhai Lakhani, President of Fidai Cooperative Housing Society has stated that there is a practice of privacy in his society. He has further stated that in his community namely Ismaili Khoja community womenfolk go out to. Bazar and other public places and do not observe pardah. P. W. 3 Anwar Ali AM who is also a resident of the same locality has stated that "There was a practice of privacy in Garden Bast" but now people have started 'raising high buildings and it is affecting privacy. The plaintiff has stated that in the entire Garden East area custom of privacy is prevalent. In cross- examination he stated that in Ismaili Khoja community womenfolk do not wear burqa but they observe pardah. In Garden East area there are Ismaili Khojas as we as non-Ismailis. He has explained that there is a custom of privacy because people do not see the womenfolk of each other. He has further siated that there is custom of privacy because boundary walls in this area are very high and chowkidar sits outside the house. He further stated that custom of ' pardah exists in Garden East area and there is a custom of pardah in the entire city and one cannot see into the houses of others. This is the entire evidence on record to show that there is a custom of pardah prevalent in the Garden East. As will be seen the evidence isnot sufficient to establish that what was the nature of custom which is begin observed from time immemorial and is reasonable. It is an admitted position that Ismaili Khojas do not observe pardah. The fact that the boundary walls are high and chowkidars sit outside the gate does not prove customary pardah. These steps may be taken for more than one reason particularly for the safety of their house and property. According to rules also the bounary wall should at least be six feet high. It is to be noted that even from the second storey (ground plus one floor) which according to the plaintiff is the permissible height, one can overlook into the neighbouring bungalows although there are high boundary walls. In these facts the plaintiff should have established in what manner their privacy will be disturbed more than in the existing conditions when there are only two-storeyed houses. Mr. S. M. Sadiq the learned counsel for the defendants has rightly pointed out that the objection of the plaintiff amounts to this that you can see in his bungalow from the first floor but not from the second and third floors. The plaintiff has not been able to establish from evidence that from the newly constructed buildings the occupants would be able to overlook and see more than what can be seen if the buildings were up to first floor. The customary right of pardah as claimed by the plaintiff can only be accepted if it is established that the same is strictly observed by their family and community member since time immemorial and has been recognised and respected by the resident of the locality and is being voluntarily implemented. The standard of privacy as established by plaintiff's evidence is that they do not see the womenfolk of each other. This does not mean that a multistoreyed building built on the adjacent plot shall in any manner violate even such a custom if it exists at all. This custom seems to be more in the nature of self-restraint. The learned counsel for the defendant has relied upon Fazte Raziq's case PLD1980SC193,and has submitted that in view of the dictum laid down by the Supreme Court of Pakistan the . Plaintiff has failed to prove his case. Mr. Muhammad Shareef, the learned counsel for the plaintiff has referred to the evidence and has frankly submitted that although the custom of privacy is proved, in view of Fazle Raziq's case it will not be possible to get a relief on this issue but he maintained that in any event the plaintiff's right of privacy will be violated. The entire case-law on the point has been discussed in the judgment passed in Suit No. 560/79 and following the same I hold that in view of the evidence l and facts brought on record the custom of pardah and privacy has not been proved.
6. Issue No. 2.-Since it has been held that the plaintiff has failed to prove any customary right of pardah and privacy the question of infringement does not arise. However on facts the plaintiff has failed to prove that the plan has not been approved by the Building Control Authority and as will be discussed hereunder due consideration has been given while approving the plan for maintaining the right of privacy and easement of the adjoining neighbouring bungalows and with this view a certain angle has been maintain--ed in the Buildings. The defendants and their architect have stated this fact in clear terms. The defendant has further examined Imran an architect to prove that the plaintiff has constructed his bungalow right on the boundary wall adjoining the defendants plot without leaving any side space. This is a double-storeyed construction and there are no windows on the defendant's side. The object of bringing this fact on the record is to show that there exists an obstruction which completely blocks the view of their bungalow from the defendants flats. This witness has further stated that he had gone on the defendants building and examined whether the points mentioned in the map given by the plaintiff could be seen from there but his view was that it vas not possible to see in that manner. There is no evidence to show that the construction is of such a nature that the inner portions of the plaintiff's bungalows will be exposed to view. In view of these facts the plaints has not been able to prove this issue. Mr. Muhammad Shareef the learned counsel for the plaintiff has urged that Imran is an obliging witness and has come on the instructions of the defendants and their Advocate and has acted gratuitously. It may be correct that this witness has not charged any profes--sional fee but it does not mean that whatever he has stated is false. It is not necessary that any person appearing to be an interested witness may not give a correct evidence. However, evidence of such person should be read with caution and reservation. This witness has produced sketch and with the help of plan explained the existing situation. I am not inclined to reject his evidence. My finding is in the negative.
7. Issues Nos. 3 and 4.-The learned counsel for the plaintiff has not seriously pressed these issues and has frankly stated that as there is an open side space left between the two constructions which is above 15 feet wide the question of infringement of right of air and light will not arise.
8. Issues Nos. S & 6.-The learned counsel for the plaintiff has most vehemently argued this issue. .It may be briefly mentioned here that in Garden East area lease of plot had been granted by the Collector. The learned counsel for the plaintiff has contended that the restriction placed on the right of the defendants to build not more than two storeys on their plot arises from condition No. 2 of the Lease -and the Circular of the year 1938 issued by the of Collector of Karachi. The condition No. 2 in the lease Deed provides that "a Lessee shall submit to the Collector and obtain his sanction to a plan and specification of the buildings to be erected before any building operations are commenced". Relying upon this condition the learned counsel for the plaintiff contended that the Lessor is keeping a control over the Lessee's right to build the construction and in exercise of that right the Collector had issued a Circular in the year 1938. According to the learned counsel for the plaintiff the object of issuing the Circular was to formulate any uniform policy in the entire area and that as it is nobody's case that it was not known to the lessees, the Circular is valid, legal and binding upon the defendants. On the other hand, Mr. S. M. Sadiq the learned counsel for the defendants has contended that neither in the scheme nor under the Lease Deed any restriction has been imposed which prohibits defendants from constructing beyond two storeys. He has further contended that unless plan is submitted to the Collector no general condition can be imposed by way of a circular as power under condition No. 2 of the lease should be exercised in individual cases and not collectively. According to Mr. S. M. Sadiq the general conditions could be issued .Only by way of rule under section 214 of the Land Revenue Act and not otherwise. He further con--tended that the circular violates the terms of scheme and therefore it is not applicable. To appreciate these contentions brief reference can be made to the scheme as it has been discussed in detail in Suit No. 560/79. The scheme of Garden Quarters was made under Town Planning Act, 1915. The scheme does not put any condition to the height of building or number of storeys. The lease was issued under the provisions of Bombay Land Revenue Code, 1879 which merely imposes a restriction that the lessee will submit to the Collector and obtain his sanction to plan and specifications of the building to be erected before any building operation is commenced. Building operation cannot commence without the sanction of the Collector. The Collector has therefore to grant a sanction to a plan and specifications of the buildings which may be submitted to him. In - this process the Collector could have imposed any reasonable condition. But the question to be seen is whether any condition could have been imposed by virtue of a circular issued by the Collector in 1938. This circular provides that no plan should be submitted for construction more than ground plus one storey. As is obvious this circular has been addressed to the Architects in the form of request. It is not an order to the Lessees or a condition in exercise of condition No. 2 of the Lease Deed. From the opening words it is clear that it was intended to be a request to the Architects to adopt a uniform policy in submitting the plans and specifications. It has not even been addressed to the relevant authorities for seeking enforcement. It is, therefore, doubtful that this circular could have been issued in pursuance of condition No. 2. The learned counsel for the defendants has pointed out that from the evidence on record it has fully been established that from the year 1964 permissions have been granted by the Collector for construction of Multi- storeyed Buildings in Garden East area. From the record of the Collector relating to Garden East it is estab--lished that for 1964 multi-storeyed buildings have been allowed to be constructed on 11 plots. In the platinum Society which is situated opposite Fidai Society across the road there are 13 blocks of multi-storeyed buildings consisting of ground plus two storeys. From these facts it is distinctly clear that the Collector himself in this particular area is not enforcing this circular. Mr. Muhammad Shareef, the learned counsel for the plaintiff has contended that permissions to these plot owners were given as a special permission but this does not make any material difference. At least it is established that there exist large number of multi-storeyed buildings in the Garden East area and many permissions for such construction have been granted in spite of the restrictions as pleaded by the plaintiff. Mr. Shareef the learned counsel for the plaintiff has relied upon the case of Vibhuti Narain Singh v. Improvement Trust, Banaras and others AIR 1954 All. 520In this case U. P.
Town Improvement Trust Act provided that no person shall erect or re-erect add or alter any building beyond the prescribed alignment of the side space without the written permis--sion of the Trust. The Improvement Trust had directed by the resolution that no construction should be permitted which did not leave 7J feet land on either side of the street. When the petitioners submitted the plan the Improvement Trust required certain alterations -and amendments which was challenged in writ petition and it was held that as the right of the petitioner to make constructions was taken away altogether by section 29(1) (b) except to the extent to which he might obtain written permission of the Improvement Trust, the exercise of that right would he limited to the extent of the permis--sion so granted. Relying on this portion of-the judgment the learned counsel for the plaintiff contended that the right of the defendants to construct the building has been taken away subject to the permission of the Collector and such permission is contained in the circular. This contention does not seem to be correct because restrictions imposed in that case were by virtue of an Act and a resolution of the Improvement Trust. In the present case no provision of law has been quoted to show that any restriction has been imposed on the number of storeys. . Reliance has been placed on the circular of 1938 which has no binding effect as held in Suit No. 560/79.
9. The learned counsel for the defendants has contended that the scheme framed under Sind Town Planning Act, 1915 contains provisions regulating and governing the development scheme which shall prevail except on Federal or Provincial Acts. There is no regulation or any provision of law limiting the number of storeys or height of the buildings. From 1933 the function of building control has been vested in the Karachi Municipal Corporation which approved the building plan from Town Planning and Building Control points of view. Now under the Sind Building Control Ordinance this function has been vested in K. D. A. This is obvious from the fact that when the building plans are submitted to the Collector for obtaining his sanction under the lease he sends them for approval of Town Planning & Building Control Authorities and after their approval sanction is given by the Collector. In these circumstances it seems correct that the circular has no relevance or binding effect from the points of view of Town Planning and Building Control as these aspects are governed by statutes, Rubs and Regulations framed or which may be framed for that purpose by the relevant authorities.
10. The learned counsel for the defendants further contended that the conditions imposed by the Collector do not amount to covenants running with the land. Following the judgment passed in Suit No. 560/79 I held that the conditions imposed by the Collector are not restrictive covenants running with the land.
11. The next contention of the learned counsel for the plaintiff is that the plan under which construction is being made has not validly been Dassed by the relevant authorities. In this regard the facts as brought on record in evidence may be narrated. On 7th August, 1978 the defendants submitted plan for Deputy Collector's permission to construct three --storeyed building. This application was referred to Architect Control Department K. M. C. Who by their letter dated 23-11- 1978 addressed to Assistant Commissioner, granted no objection for erection of ground plus two upper floors from planning point of view subject to the condition that final approval shall be granted after no objection from adjoining owners for erection of second floor is produced. On 2-12- 1978 the Deputy Commissioner passed the following order :- "The lessees of plot No. 63 Garden East Quarter, Katachi are granted permission to construct three- storeyed purely residential buildings including the ground floor, leaving a minimum distance of 16 feet and 34 feet between the two buildings on the abovesaid plot. Each storey shall comprise four
(4) flats and two (2) flats, i. e. In all twenty-four (24) flats, each bearing three bedrooms, one dining room and one drawing room and other amenities.
This permission is subject to the rules and regulations now in force or hereafter enforced by the Government. No construction of any kind including a balcony is permitted in the compulsory open space from ground to sky. The lessees have also to provide one fire-hydrant on every floor as per the approved design of the Chief Fire Officer, K. M. C. The lessees have also to maintain the privacy of the neighbours.
Necessary prior permission to start the construction must be obtained from the Dy. Commissioner, Karachi as per terms of the lease after getting the building plans approved from K. M. C. As usual before the construction is started.
This permission would be withdrawn for the violation of any condition of the lease, rules, regulations or this permission and further action for the forfeiture of the plot will be taken."
The Architect Control K. M. C. By his letter dated 18-12-1979 called upon the defendants to produce No-Objection Certificate from the owners of the adjoin--ing plots. The defendant No. 1 on 12th March, 1979 wrote to the Architect Controller K. M. C. That their plan may be approved for ground floor plus one storey for the time being and approval for third storey may be considered after obtaining N. O. C. Accordingly an approval for the ground plus one storey was granted on 15-3-197) by K. M. C. And on 18-3-1979 the permission was issued Exh. 5/1 page 89). On 17th March, 1979 Sind Building Control Ordinance, 1979 was enforced and the Town Planning and Architect Control Department of K. M. C. Was transferred to Karachi Development Authority. Under section 4 of Sind Building Control Ordinance, 1979 notification was issued appointing Karachi Development Authority as an Authority under the Sind Building Control Ordinance, 1979. Since then K. D. A. As an authority is vested with the jurisdiction to grant approval of the building plans.
12. On 20th March, 197) the defendants addressed a letter to City Deputy Collector for obtaining no objection certificate as K.M.C. Had granted approval on 18-3-1979. The Assistant Commissioner by his letter dated 8-11-1979 (Exh. 8/5 pages 23) granted permission to raise construction of double storey (ground plus one storey) on plot No. 63 Garden East. On 20-3-1979 the defendants addressed a letter to K. D. A. For approval of ground plus two storeys on this plot. A note was put up giving all the aforestated facts and thereafter permission was granted on 6-6-1979 for construction of second floor. The defendant thus succeeded in obtaining permission for construction of ground plus two storeys. The defendants by their letter dated 21-1- 1980 addressed to City Deputy Collector sought permission for construction of additional 3rd floor.
It was stated that he had been already granted permis--sion on 2-12-1978 for construction of ground plus two floors. The plan of additional floor was also enclosed. The Assistant Commissioner by his letter dated 27-1-1980 asked the Director, Master Plan Department, K. D. A., to give his opinion from Town Planning point of view. Karachi Building Control Authority by its letter dated 26-2-1980 pointed out to the irregularities and discrepancies in the plan and requested the Assistant Commissioner to withdraw his permission. The Assistant Commissioner therefore issued show-- cause notice to the defendants on 19-3-1980. The defendants by their letter dated 27-3-1980 submitted a revised plan which was again forwarded to K. D. A. Which on 28-7-1980 sanctioned its approval to the proposed plan from town planning point of view (Exh. 8/5 page 63) with the following instructions; "(1) with the condition that building plan should be submitted to Deputy Collector of Building Il, for approval.
(2) If the proposal is meant for public sale the owner is bound to submit the information on Form M P I to the Master Plan Department."
The Deputy Commissioner by his order dated 27-8-1986 (Exh. 8/5 page 73) granted permission for construction.
13. Mr. Muhammad Shareef the learned counsel for the plaintiff has contended that the permission obtained by the defendants is illegal and irregular. According to him when objection was first raised by the Karachi Municipal Corporation with regard to the irregularity in the plan and the defendants were directed to submit a revised plan, they submitted revised plan for the third floor.
No revised plan for first and second floor was submitted by the defendants. In this regard it is pertinent to note that when objection was raised the defendants explained the discrepancies and submitted revised plan for the third floor. Assistant Commissioner by his letter dated 19-3-1980 had stated that plan for the proposed additional floor, i.e. Third floor was not in accordance with the record of his office and there existed irregulari--ties in the construction. In these circumstances the revised plan was submitted only in. Respect of the floor about which objections were raised. It, therefore, follows that non-submission of revised plan for first and second floor in respect of which no objection was raised from planning point of view, did not affect the grant or approval of the plan. The revised plan which the defendants had submitted was sent by the Assistant Commissioner, South, to the Director, Master Plan Department, K. D. A. For his opinion from the town planning point of view. The Karachi Development Authority Master Plan Department acting as an Authority under Sind Building Control Ordinance, 1979 by the letter dated 28th July, 1980 granted no objection from the planning point of view. The Deputy Commissioner, South, on 27-8-1980 granted the permission to construct the additional floor. Mr. Muhammad Shareef, the learned counsel for the plaintiff has contended that the plan was approved by Ahmad Hussain, Deputy Controller, Buildings, without referring to the Town Planning cell of K. D. A. According to the learned counsel the power for approval of plan was to be exercised by K. D. A. Which was appointed as an Authority under the Ordinance and therefore the Deputy Controller, Town Planning was not authorised to grant the approval. It seems clear that Ahmed Hussain was Deputy Controller, Buildings in K. D. A.
Which was appointed as an Authority under the Ordinance. K. D. A. Could have acted only through its officers and therefore the exercise of authority by Ahmad Hussain approving the plan was valid and proper. It will be presumed that any act done by him in discharge of his official duty was regular and according to law. If there was any irregularity, the plaintiff should have challenged it and established by cogent evidence that Ahmad Hussain did not have any authority or jurisdiction to pass such an order. No such attempt has been made and therefore the contention of the plaintiff is not tenable.
14. The learned counsel for the plaintiff then referred to Exhs. 5/2 and 5/3 the Rules of the Karachi Building and Town Planning Regulations Part I and Part II. These rules are entitled as "Final Draft"
1979. Ahmad Hussain P. W. 1 has stated that these Rules have not yet been finally approved by the Government. Mr. Muhammad Sbareef, the learned counsel for the plaintiff has taken pains to refer to the various provisions of these regulations and contended that as no development permit was obtained by the defendants. And the plaintiff was not afforded any hearing as required by these regulations the approval of the plan is illegal. It is not necessary to go into the merits of this contention because the rules are merely draft Rules. Secondly accord--ing to P. W. 1 these Rules had not been approved by the Government and therefore they had no legal validity and lacked binding force. In these circum--stances no complaint can be made of its non-observance. Mr. Muhammad Shareef, learned counsel for the plaintiff has referred to (1899) 1 Q B 444 and contended that the plan which is required to be approved should be legally approved and not merely approved for namesake. It was held in this case that the word approved means legally approved. There can be no dispute with this proposition because if any act is required to be done under any statute rule or otherwise it should be done in accordance with law and in the manner prescribed by law. In the present case it has been established that the plan were approved in a legal manner and according to law. I therefore, bold that the only legal restriction on the right of the defendants to build more than two storeys on their plot was that the plan was to be approved by the Authority under the provisions of Sind Building Control Ordinance, and approval was also to be obtained from the Deputy Commissioner. All these sanctions and approvals have been obtained by the defendants.
15. In view of the discussion on Issue No. 5 it is clear that K. M. C. Had not issued any permission for constructing the third floor on the defen--dants' plot but the same was approved by K. D. A. Acting as Authority under the Sind Building Control Ordinance, 1979.
16. Issue No. 7.-In view of the discussion and findings on Issues Nos. 5 and 6 the finding on this Issue is in the negative.
17. Issue No. 8.-The learned counsel for the plaintiff has stated that as the defendant No. 2 is an architect of defendant No. 1 he is not a necessary party and he does not press this issue. Additional Issue No. (i)
18. The plaintiff during the pendency of the suit applied amendment of plaint for adding an additional relief for demolition of third storey on two blocks but no court-fee was paid. The learned counsel for the defendants has contended that court-fee has to be paid on the value of the building required to be demolished. The learned counsel for the plaintiff has contended that the plaintiff is liable to pay court-fee for the additional relief but he is entitled to put his own valuation.
The plaintiff had not stated anywhere in the plaint at what amount they value the additional relief.
During the arguments the learned counsel for the plaintiff has stated that the plaintiff values the relief for the same amount at which the relief of injunction had been valued at the time of filing the suit. The learned counsel for the plaintiff has relied upon I L R 4 All. 320 and AIR 1928 Cal.
55. The learned counsel for the defendants relying upon Yusuf Mitha v. Zahoor P L- D 1980 Kar. 492referred to the evidence of the defendants and contended that the court-fee should be paid on Rs. 8 lacs, `the price of four flats which will be affected by this relief. In Sind by string of authorities viz. A 1 R 1937 Sind 241, PLD 1967 Kar. 468, PLD 1971 Kar. 682 and PLD 1980 Kar. 692 it is well settled that in cases where the plaintiff is entitled to put his own valuation, if the Court comes to the conclusion that it is arbitrarily fixed, it can put its own valuation and ask the plaintiff to pay court-fee on the valuation. The plaintiff has filed the suit praying for injunction restraining the defendant from constructing, more than two storeys and has valued this relief at Rs. 26,000. The additional relief is for mandatory injunction to demolish the third storey on two blocks whose structure has been completed. The plaintiff has omitted to value this relief. In these circumstances the Court can put its valuation to the relief. In the evidence the defendants have stated that the value of four flats which would be affected is Rs. 8 lacs. The construction is not fully complete and therefore this value cannot be accepted for the purpose of determining payment of court-fee. The value of four flats in the present state would be many times more than the valuation put by the plaintiff. After the arguments were completed the plaintiff filed court-fee stamps worth Rs. 1,325. The plaintiff did not apply for extension of time under section 149, C. P. C. Nor he amended the plaint assessing the value of the additional relief. By merely filing court-fee stamp of a certain valuation the plaintiff intends to show the value of which he has assessed this relief. This practice of filing court-feel without filing proper application under section 149, C. P. C. With a supporting affidavit is highly improper and such practice should be deprecated, discour--aged and disapproved. In spite of the issue being framed on 23-12-1981 the plaintiff did .Not take any step for payment of court-fee on the additional relief and filed it on 16-2-82 after the judgment bad been reserved. The attitude of the plaintiff is far from being bona fide and proper. Relying on the aforestated authorities the court-fee paid by the plaintiff is not proper as in cases where relief is to demolish a building ad velorem court-fee should be paid on the value of such building or portion of the building. In the circumstances as in spite of objections and arguments the plaintiff has failec, to pay proper court- fee, the additional relief cannot be granted.
19. Additional Issue No. (ii).-As stated earlier the plaintiff had amended his plaint at a late stage by adding the following relief : "AA. Direct and order defendants to demolish "dismantle the third st6rey on 2 blacks constructed before and completed during the pendency of the suit."
The learned counsel for the plaintiff has contended that independent of plaintiff's right of easement they are entitled to this relief. Mr. S. M. Sadiq, the learned counsel for the defendants has contended that the plaintiff by his conduct has acquiesced to the construction of third storey on the blocks and is estopped from seeking any relief for demolition of those flats on the third storey. Mr: Sadiq has invited my attention to para. 12 of the plaint which reads as follows :- "12. That the defendants have completed the construction of two storeys namely the ground floor and the first floor on' the three Blocks and on 2 Blocks have constructed three storeys and now on the third Block (adjacent and abutting to plaintiff's House), also they have made full preparations for further construction and shuttering etc. Is erected and concrete filling will take place on 21-4-80.
The said permission dated 2-12-1978 is even otherwise against the -law and is void ab initio as the Deputy Commissioner South Karachi had no jurisdiction or power to grant permission for constructing more than two storey buildings in the Garden East Karachi."
20. Further reference has been made to paragraph 3 of the affidavit filed by the plaintiffs in support of the application under Order XXXIX, dated 28-12-1980. From these averments the defendants have tried to establish that at the time when the plaintiffs had filed the suit on two blocks three storeys had already been constructed and the structure was complete. They hastened to file the suit when the defendants wanted to raise third storey on the third block. In these circumstances, the defendants have contended that the plaintiffs having failed to raise any objection to the construction of the third storey on two blocks cannot at this stage seek mandatory injunction for its demoli--tion. A reference has been made to the following passages from Monir's Law of Evidence, Vol. II, page 1255; "Where a person, having a title, right or claim to property of any kind, perceives that another person is innocently, and in ignorance, conduct--ing. Himself with reference to the property in a manner inconsistent with such title, right, or claim, it is the duty of the former to undeceive the other party forthwith. If he omits to do so, and it all the other conditions of a valid estoppel are satisfied he is precluded from exercising or asserting his right, title or claim as against such other party on any subsequent occasion."
While relying on Nidnrthu Blasar Bheemaraju v. Changati Nrulynejyaudu (AIR 1931 Mad. 354Monir has further. Observed at page 1253 as follows :- "If a person, having a right and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act."
The learned counsel for the defendants has also relied on AIR 195:1 Mad. 455(?). The main contention of the learned counsel for the defendants is that as the plaintiff allowed the defendants to raise the construction up to the third storey now at this stage when they have completed the structure of third storey without any objection, the plaintiff cannot object to it or pray for its demolition. The Plaintiff's counsel on the other hand has contended that the question of acquiescence or estoppel does not arise because-firstly the defendants were acting in violation of the provisions of law and secondly that the plaintiff has not intentionally relinquished any right. He further contended that merely because the Plaintiff bad omitted to claim or enforce a right for a very short time does not amount to a waiver of right on the part of the Plaintiff. The learned counsel has relied on the case of Sultan V. Lt.-Col. Dost Muhammad (53 1 C 683) and Paddu v. Mahbir Parasad (PLD 1973 Lah. 318). Estoppel as a rule of Evidence is enacted in section 115 of Evidence Act.
In order to attract the principles of estoppel it is necessary to establish that the part sought to be estopped has by his declaration, act or omission mad representation thereby causing or permitting another person to believe a thing to be true who upon this belief has acted upon it or altered his position. Therefore in order to press in service the principles of estoppel the aforesaid ingredients should be satisfied. Estoppel should be reciprocal or mutual, certain and not against law. As the applicability of estoppel is dependent on certain facts it should therefore be pleaded where pleadings are necessary for the proceedings and they should be proved by the person pleading estoppel.
21. In the present case the learned counsel for the defendants is relying upon the silence of the plaintiff in allowing the defendants to raise the construc--tion upto third storey on Block No. 3. The learned counsel for the plaintiff has relied on 53 1 C 683, where it was held that "a question of acquitable estopple may arise where the owner of land sees another person erecting buildings upon it and, knowing that such person is under the mistaken belief that the land is his own property, purportedly abstains from interference with the view of claiming a demolition of the buildings when erected. Where, however, the person encroaching on the land of another cannot be said to have been acting under any mistaken belief as to the ownership of the land, no question of acquiescence or equitable estopple can arises." In the present case, the circumstances are completely different. In Sultan v. Lt.-Col. Dost Muhammad and another PLD 1973 Lah. 318, the following observation was made :- "In all cases of . Representation capable of raising an estoppel the representation must be shown to have been made with the intention of producing certain state of belief in the mind of the representee. Has the respondent allottee in unequivocal definite and clear manner made any statement relinquishing his right for allotment of the land in dispute 7 The answer is in the negative because he has continued with his grievance by filing the appeal. He has out surrendered his claim and-by no stretch of imagination it can be assumed that the petitioner was led to believe to the contrary by his conduct of securing an alterna--tive allotment . . . . . . . . . . . . . . ."
In this case however it was held that the case of waiver by the respondent did not arise as the respondent had not relinquished his claim and had even filed appeal against the orders. In Sultan's case it 'was held that as there was no waiver of right no estoppel could be pleaded. Now applying these principles to the facts of the present case it seems that the defendants were aware of the fact that a condition had been imposed legally or illegally by the Deputy Commissioner for obtaining no objection certificate from the adjoining neighbours. The defendants being aware of this condition did not press for the construction of the third storey and in fact applied to the K. M. C.
Only for construction of the two storeys which impliedly meant that they would try to comply with the condition imposed by the Deputy Commissioner. However, thereafter the defendants succeeded in obtaining the sanction for the third storey as well. The defendants knowingly that they have to obtain a no-objection certificate from the plaintiff kept quiet over the matter and pursued it from different angle. In these circumstances, it cannot be said that the. Plaintiff had made some representation to the defendants which was acted upon by the defendants to their detriment or that the silence of the plaintiff had induced the defendants to construct the third storeys. Nor it is established that the defendants have altered their position to their detriment on the faith of any original representation. In the peculiar facts and circumstances of the case it is difficult to hold that the plaintiff is estopped from raising a plea for demolition of the third storey.
The defendants being aware of the entire situation and the limitation imposed upon them proceeded with the construction and therefore in these circumstances as stated above mere silence will not amount to a waiver or entitle the defendants to clam estoppel against the plaintiff.
The defendants have not raised the construction on any representation of the plaintiff either by spoken words or by mere silence of the Plaintiff. In this regard it would be convenient to refer to Jakhuma Mehra v. Saroda Parasad Dey (1908) 7 C L J 604,which has been quoted with approval by Monir to the effect that `silence would give rise to an estoppel when it is of such character and is under such circumstances that it would be a fraud on the other party. In the present case the defendants have contended that as they have almost completed the third storey which is obvious from the plaintiff's pleading, plaintiff's silence would amount to a waiver of right. While dealing with such a situation Monir at page 1257 observed as follows; "There is a distinction between a case where the acquiescence occurs while the act is in progress, and another where the acquiescence takes place after the act has been complete. In the former case, acquiescence is quiescence under such circumstances that assent may be reasonably inferred from it. In the latter, when the act is completed without any knowledge or without any assent on the part of the person whose right is infringed, the matter must be determined to very different legal consideration. As a right of action has vested in him, a mere delay to take legal proceedings cannot by itself constitute a bar to such proceed--ings, unless the delay on his part, after he has acquired full knowledge, has affected or altered the position of the opponent but it must count against the person who has shown his quiescence under the circum--stances from which his assent may reasonably be inferred as a matter of legal inference. Mere delay in filing a suit for specific performance does not amount to a waiver of the right to sue."
In the present case it cannot be contended that from the plaintiff's silent or inaction the defendants could infer in law the assent of the plaintiff. Nor the plaintiff by any representation has induced the defendants to construct third storey. Therefore the question of estoppel against the plaintiff does not arise.
22. The next question for consideration is whether the plaintiff would be entitled to a relief even if the plaintiff fails to prove that his right of easement and of privacy has been infringed. Mr. Mohammad Shareef the learned counsel for the plaintiff has contended that as the construction and plans approved by the relevant authorities are illegal whether any right of easement has been infringed or not, the plaintiff is entitled to a relief of permanent injunction against the defendants.
He has, however, frankly con--ceded that unless plaintiff is aggrieved he has no right to complain against the construction. The learned counsel then endeavoured to argue that the grievance and injury to the plaintiff is serious inasmuch as prior to construction on plot No. 63 there was only one tenant and since it has been converted into 32 tenements presumption should be drawn that plaintiff cannot have the same enjoyment of his property which be used to have before the construction. The learned counsel for the plaintiff has relied upon Vaman Tayaji and others v.
Municipality of Sholapur 1 L R 2 Born. 646. In this case the plaintiffs who were tax-payers of Sholapur sued for an injunction to restrain the Muni--cipality of Sholapur from expending any sum of the municipal funds on the purchase of musical instruments for a band, which they had resolved to establish. The plaintiffs contended that this was not one of the purposes for which the municipality was authorised by law to spend municipal funds. The municipality pleaded that the plaintiffs had no right to sue ; that they had no cause of action ; and that the proposed expenditure of municipal funds was not illegal. It was held that "it is clearly settled that any individual member of corporation may file a suit for the purposes of restraining the Corporation from doing any act which may be illegal or ultra vires of the Corporation". After referring to various authorities it was further observed that these authorities seem to me to show very clearly, firstly that the plaintiffs can sue in their individual capacity if they are sufficiently interested in the Municipal fund and secondly, that any interest however small is sufficient to entitle them to do so." Again the following observation was made :- "As I have already said before, the plaintiffs in the present case, as rate-payers, are, in my opinion, not mere strangers, but are directly interested in the proper application of the Municipal fund. The absence of interest could have been urged against them with great force, if they had been merely inhabitants of Sholapur and not rate payers, and as such contributors to the fund. It would, in my opinion, have been fatal to them if they were not even residents of Sholapur and, therefore, not interested in the administration of the Sholapur Municipality at all."
This case is completely distinguishable and does not apply to the present case. There is no involvement of a trust or a trust fund in which the plaintiff or any person as a public is interested.
The entire observation is with reference to tax-payers who have been held to have parsonal interest in the Municipality. As is obvious a resident unless he is a tax-payer was held not to have any interest. It therefore, follows that the plaintiff has first to establish his personal interest coupled with violation of any trust fund or infringement of his right. Mere violation of a certain provision of law by any, authority does not entitle an individual to file a suit against it unless any personal interest or damage is proved. The case of municipal funds or trustees funds cannot be equated with the plaintiff's right which he claims to have been infringed. The learned counsel then referred to TOD Headh v. Benham 40 Ch. D 80, in which the words `grievance and annoyance' have been interpreted as follows; "Whether the term is employed in the covenant in the exact sense of the term at Common Law or not, is a matter that may be doubted, but I will assume as matter of argument only that "nuisance" in this covenant means only a nuisance at Common Law that is in the language of vice-chancellor Knight Bruce in Walter v. Selfe "an inconvenience internally interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people". Any material interference with the ordinary comfort of existence ; that would be a nuisance. The law, in thus defining "nuisance" has stopped short, I will not say of protecting the fancies of people, because the mere fancies of people I do not think can in any view be an element in the definition, but has stopped short, according to what is said in Aldred's case, or giving an action in respect of that which is a matter only of delight, and not of necessity."
It was further observed that an act which interferes with the enjoyment of the house is a nuisance.
23. It has already been observed that only such interference, infringement of easements and grievance which amount to nuisance will entitle a plaintiff to claim a relief of injunction. In the present case the plaintiffs have not fulfilled these tests.
24. " -Mr. Muhammad Shareef, the learned counsel for the plaintiff has contended that the very fact that the defendants divided the adjoining plot into 32 individual residential units will amount to a nuisance and. It will interfere with enjoyment of the plaintiff's house. The plaintiff in his evidence has stated so but it is not sufficiently proved. The plaintiff wants to presume it but nuisance is a question of fact in which each and every offending act should be brought on record to show that the construction of the building would constitute a nuisance. The plaintiff has failed to prove in what manner and in what circumstances these flats will be a nuisance to the plaintiff: On the other hand the very fact that the plan has been approved by the relevant authorities taking into consideration the rights of easement of the adjoining owners heavy burden lies upon the plaintiff to prove that it will cause nuisance. In the absence of any proof to this fact the plaintiff is not entitled to claim a' right to sue merely on the basis of presumption which he wants to infer from the .Facts. The learned counsel for the plaintiff has relied upon (1911) 1 K B 869 and 1980 SCMR 686. In the first case the plaintiff was granted relief mainly for the reason that the defendant had erected a temporary, stage on the public way blocking the view of the plaintiff, thereby obstructing view of the procession which was to pass from the road in front of his house. In 1980 SCMR 686 a petrol pump was constructed on highway which was not in accordance with rules and the frontage of the adjoining building was blocked therefore suit was held to be maintainable. Both the cases are completely distinguishable on facts, In the present case the plaintiff has failed to prove that his frontage will be blocked or that the construction is illegal and unauthorised causing nuisance or that his right of easement has been affected. In these circumstances and in view of the findings on the aforestated Issues the plaintiff is not entitled to the relief.
25. Issue No. 9.-In the result the suit is dismissed with no order as to costs.