' AAMER FAROOQ, J.--- This appeal is directed against order dated 08.06.2016 passed by the learned Civil Judge 1st Class (West), Islamabad whereby in the suit filed by the appellant against respondents application for interim relief was dismissed.
2. The facts, in brief, are that the appellant is owner in possession of House No,281, Street No,7, Sector F-10/3, Islamabad. The eastern boundary wall of the appellant's house is in contiguous with plots Nos.282 and 282-A, Street No,7, Sector. F-10/3, Islamabad, The referred plot was bifurcated into two and is divided in 282 and 282-A. Respondent No,..1 demolished old construction of House No,282-A, Street No,7, Sector F-10/3, Islamabad and is raising construction thereon and in this behalf the basement is being dug out. The appellant during the digging process of basement made a complaint to the Capital Development Authority regarding construction on the ground that the same is not in accordance with the regulations and due to the same his property is in danger. Subsequently the appellant filed a suit for damages as well as mandatory and perpetual injunction along with an application for interim relief restraining respondents from continuing with excavation and construction at plot No,282-A, Street No,7, Sector F-10/3, Islamabad. The said application was dismissed by the learned Trial Court vide the impugned order.
3. The learned counsel for the appellant, inter alia, submitted that construction which is being raised is not in accordance with the approved plan; that the same is in violation of the Building Regulations of CDA. In this behalf it was contended that the respondents never placed on record the approved plan which goes on to show that construction is being raised in violation of regulations of the CDA. Learned counsel further contended that there is no provision for relaxation of rules and regulations. It was further submitted that respondents while carrying out construction did not build retaining walls along with the boundary wall of the appellant's house as is required under the CDA bye laws; that respondent No,1 swore an affidavit wherein she acknowledged that eastern and western sides of house No,282-A Street No,7, Sector F-10/3, Islamabad was dug for basement without complying with the CDA requirements. It was also contended that under the Islamabad Residential Sector Zoning (Building Control) Regulations, 2005 the respondents were required to leave setback yard in order to protect the property of the appellant. Learned counsel drew attention of the Court towards said regulations that minimum 9" (inch) thick R.C.C. Wall is to be constructed below natural ground/yard level. Learned counsel also submitted that the case was argued by both the sides before the learned Trial Court and was adjourned for orders, however, on the date on which the order was to be passed, respondent No,2 appeared in person and made a statement on the basis of which the application for interim relief filed by the appellant was decided vide the impugned order, therefore, the impugned order has been passed behind the appellant's back; that respondents placed on record certificate dated 28.04.2016 which has no value or significance whatsoever. Learned counsel in support of his contentions placed reliance on cases titled "Muhammad Anwar v. Mst. Ilyas Begum" (PLD 2013 SC 255), "Muhammad Nawaz v. MBR"
(2014 SCM R 914) and "Qamar Ali' Shah v. Waryam Ali and 3 others" (1976 SCM R 393).
4. The learned counsel for the respondents, inter alia, submitted that initially basement was not dug out with RCC/retaining wall and because of that CDA had stopped the construction at site, however, on the undertaking/affidavit by respondent No,1 the construction at site commenced after RCC walls have been duly constructed; that the appellant has no prima facie case, no balance of convenience lies in favour of the appellant, therefore, he is not entitled to the grant of temporary injunction. It was also submitted that in the suit the appellant has prayed for grant of permanent injunction against respondents till such time the retaining walls are constructed and since the same have been built up, therefore, there is no justification or basis for allowing temporary injunction; that building plan is duly approved by the CDA; that the plan is in line with the Islamabad Residential Sector Zoning (Building Control) Regulations, 2005. It was also contended that RCC wall built up on the western side is in accordance with the regulations and so far no complaint of any damage has been made by any adjacent neighbour. In support of his contentions learned counsel placed reliance on cases reported "Mst. Saeeda vs. Province of Punjab and others" (2013 CLC 454), "Mst. Nusrat Begum v. Muhammad lqbal Khan and 10 others" (2008 CLC 476) and "Sajjad Ahmed v. Chairman, CDA and others" (2016 CLC 896).
5. Though CDA has not been impleaded as party in the suit, however, on the order of this Court Mr. Muhammad Ayub Khan, Assistant Director, BCS-1 appeared in person along with relevant record of the property in question. The said Officer of CDA apprised the Court that initially on the complaint of the appellant the Inspector of CDA visited the site and found violation of the Building Regulations, therefore, respondent No,1 was asked to stop work at site, however, respondent No,1 executed an undertaking/ affidavit to comply with all the building regulations and built RCC/retaining walls, therefore, she was allowed to commence the construction again. The said officer also submitted that the building plan of house No,282-A, Street No,7, Sector F-10/3, Islamabad is duly approved.
6. The appellant is primarily aggrieved of construction of basement by respondent No,1 on her property i.e, House No,282-A, Street No,7, Sector F-10/3, Islamabad on the ground that due to the construction the property of the appellant is in danger and construction is being raised in violation of the CDA building regulations. Admittedly, respondent No,1 being owner of property No,282-A, Street No,7, Sector F-10/3, Islamabad is entitled to raise construction of her property in accordance with the approved building plan by CDA. In this behalf CDA is to ensure that the plan submitted and approved is in accordance with the Islamabad Residential Sector Zoning (Building Control), Regulations, 2005. Under the referred regulations; clause 2.6 pertains to construction of basement vaults cellars etc. The salient clauses for the purpose of present controversy are 2.6.1 (i), (iii), (vii), (xi), (xii) and (xiv). For the sake of convenience the requisite clauses are reproduced below and are as follow:
(i) The basement shall not be exposed more than given in Scheule-1, from the average/mean level of front road.
(iii) The natural level of front yard (set-back) shall not be raised/lowered down more than 2-0" from the natural ground level/front road level.
(vii) External walls, below natural ground/yard level of the basements shall be minimum 9" (inch) thick R.C.C. Walls, adequately water proofed and structurally sound and stable against earth pressures, etc.
(xi) All necessary precautionary measures shall be taken during construction of basement/ lowering the side yards for safety of adjacent structures/boundary walls etc. In all dwelling houses where side yards are to be lowered (maximum 6'-0" from mean level of front road), the owner/allottee and the contractor shall ensure the safety of the adjacent building/ boundary walls.
(xii) In case of damage to the adjacent property, the owner and the contractor shall be jointly and severally responsible for such damages. Also Architect and Engineer shall be responsible for any defect found in the design. CDA in no way shall be held responsible for such damages. In all other cases, except dwelling houses where basement in adjacent plots are to be constructed, the ownerlallottee shall provide a Bank Guarantee @ Rs,500 per sq.Ft. Of the adjacent building or bring NOC from the owners of adjacent buildings.
(xiv) In no case the basement will be allowed in the minimum prescribed setbacks. Only a driveway bridge may be provided in the front/ side yard of plot, which has natural depression in dwelling houses. The space under the bridge shall not be used for any habitable purpose.
7. The bare perusal of the above regulations show that it is mandatory for constructing basement that retaining wall/RCC wall is to be constructed which should be minimum 9" thick in order to protect the adjacent properties. Moreover all necessary precautions are to be taken for safety of the adjacent structures/ properties; that in case of damage to the adjacent properties the owner and contractors are jointly and severally responsible along with Engineer as well as Architects. The case of the appellant is that no retaining!RCC walls have been built to protect his property whereas the respondents have forcefully argued that the same has been done. The affidavit sworn by respondent No,1 shows that initially the RCC/retaining walls were not built, therefore, CDA restrained respondent No,1 from continuing with the construction, however, subsequently on the undertaking/affidavit of respondent No,1 the construction commenced and now the RCC/retaining walls have been found duly constructed. Respondent No,2 also appeared before learned Trial Court and categorically submitted that RCC/retaining walls have been duly constructed. In view of the fact that the retaining/RCC walls have been constructed alongside the property of the appellant, there is no prima facie case in favour of the appellant. The appellant in the plaint as well as in the appeal has not mentioned anything to the effect that actual damage has accrued to his property due to the construction raised by the respondents. Moreover the regulatory authority i.e, CDA is satisfied with the construction at site in accordance with regulations/ approved plan, therefore, the appellant cannot be said to have the prima facie case. In this behalf reliance is placed on case titled "Farooq Hamid v. Lahore Development Authority etc." (2006 YLR 1539). Likewise balance of convenience is in favour of the appellant nor there is any irreparable loss. There is no cavil with the principle laid down in the case laws cited by the learned counsel for the appellant, however, principles laid down in the referred judgments are not attracted in the facts and circumstances of the case. In case titled "Mst. Nusrat Begum v. Muhammad lqbal Khan and 10 others" (2008 CLC 476) the Hon'ble Peshawar High Court held that in the temporary injunction prima facie case is not the only requirement but other two essential requirements must coexist in order to warrant issuance of temporary injunction. It was also observed that the aim and object of the injunction is to restrain the future wrong being done to a party and not to distribute the status quo ante prevailing before institution of the suit. Similarly, the Hon'ble Lahore High Court in case titled "Mst. Saeeda v. Province of Punjab and others" (2013 CLC 454) relied on earlier judgments of the Hon'ble Supreme Court of Pakistan and held as follows: It is well-settled law that an injunction is not to be granted only on the basis that a prima facie case exists in favour of the plaintiff The Courts are required to take into consideration whether the question of balance of convenience or irreparable loss to the party seeking such relief co-exists or not. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court reported as Marghub Siddiqui v. Hamid Ahmad Khan and 2 others (1974 SCMR 519).
10. It is also a settled principle of law that besides the above factors the Courts in the facts and circumstances of a case have to take into consideration certain other factors such as whether the plaintiff has approached the Court with clean hands or not; whether the Court has been approached promptly or not; whether the grant of an injunction will be against public interest/policy; whether grant of an injunction to a party shall result into an undue advantage being given to him which would perpetuate injustice and whether a party approaching the Court for interim relief has concealed material facts and/or acted in a mala fide manner. In case the answer of any of the questions is in the affirmative then the relief of an injunction being discretionary in nature can be declined. Reliance in this regard is placed on a judgment* reported as ATCO Lab. (Pvt.) Limited v. PFIZER Limited and others (2002 CLD 120)."
8. In view of above facts and circumstances the essential ingredients required for granting of temporary injunction do not coexist in favour of the appellant. The regulatory authority i.e, CDA specifically stated before this Court that building plan has been approved in accordance with the regulations and the construction is also in accordance with the same. In such situation whether RCC wall and other construction is conformity with the approved plan and regulations of CDA is a question of fact which can only be determined after the parties led their evidence. There is no factual or legal infirmity with the impugned order which calls for interference by this Court.
9. For the foregoing reasons the instant appeal is without merit and is accordingly dismissed.