1. NAIMUDDIN, J.-This is an Intra-Court appeal against the order dated 29-12-1980, passed by a learned Single Judge on applications under Order XXXIX, rules 1 and 2, C.P.C. (C.M.A. Nos, 4401/1980 and 4580;1980). By the same order the learned Single Judge has also disposed of another appli-- cation under Order VII, rule 11, C.P.C. (C.M A. No. 4745/1980), but Mr. S. Muhammad Sadiq states that the present appeal is not directed against the order passed on this application.
2. The facts leading to the impugned, order are sufficiently stated in the order and it is not necessary to detail them here. However, we may very briefly state some very relevant facts here.
3. The respondent/plaintiff being one of the trustees has filed a suit against the appellants/defendants for declaration that the agreement dated 9th March, 1978 between the respondent and other four trustees of Bani Israil Trust, Haji Muhammad Aziz and Haji Muhammad Rafiq; the predecessors in interest of the appellants stood terminated on 9th March, 1979 due to non-performance of the same on the part of the appellants and for possession of the property in dispute.
4. By the two applications the respondent applied for restraining the appellants from raising any further constructions on the land and from transferring the possession on the grounds that the contract had come to an end and the appellants were raising constructions without sanction of any plan and approval of the competent authority.
5. The learned Single Judge found that the respondent had made out an arguable case to take to the trial. However, on consideration of the question of irreparable leas and balance of convenience, he prohibited the appellants from carrying on any construction unless they tiled in the Court either the original or a true copy of no objection certificate or approval of the authority under the Sind Building Control Ordinance, 1979 in respect of the plan for raising the construction on land. He however, confirmed the ad interim order restraining the appellants from transferring the possession of the property in dispute or any part thereof to any-third party. It may be mentioned here that the appellants have already raised certain construction on the plot of land.
6. Aggrieved by the aforesaid order the appellants have come up in this intra Court appeal. We have heard Mr. S. Muhammad Sadiq learned counsel for the appellants and Mr, Abbas Zia learned counsel for the respondent.
7. It is urged by Mr. S. Muhammad Sadiq that the learned Single Judge erred in holding that the respondent had made out an arguable case for trial. He submitted that the suit wad not maintainable as it was filed only by one of the 5 trustees and .Ire support of this submission he relied on c Ramesh Chandra Roy v. Hemendra Kumar Roy and others (AIR 1949 Cal. 519).
8. He further submitted that the agreement dated 9th March, 1978 was subsisting as the time was not the essence of the contract and in this regard he referred to the provisions of section 55 of the Contract Act. . He also submitted that the learned Single Judge failed to notice the order dated 8th May, 1980 passed by the Director, Karachi Development Authority on his application whereby the appellants on their application were permitted by. Mr. S.A. Nizami to carry on the constructions. The order on the application, which, according to Mr. S. Muhammad Sadiq, has not been taken into consideration by the learned Single Judge, reads as follows :- "Plan may be approved in view of this submission and work allowed."
9. Now, so far as the submission as to non-maintainability of the suit on the ground that the same bas been filed only by one trustee and not by all the trustees, is concerned, it may be stated that we asked the learned counsel whether this point was taken before the learned Single Judge in the counter-affidavit or even in the application under Order VII, rule 11, C. P. C. Which was made for rejection of the plaint, the learned counsel candidly stated that it was not. In any case, we find nothing on the record of this appeal to show that any such point was raised before the learned Single Judge. Indeed no such point has been taken even in the memorandum of appeal. A plea which was not raised either in the pleadings or otherwise before the learned Single Judge and regarding which the respondent had no opportunity to meet, cannot be allowed to be raised at appellate stage in appeal arising out of an interlocutory order more so when the same could be raised in the main proceedings.
10. As regards the second submission that the agreement was subsisting as the time was not the essence of the agreement, in our opinion that could be an issue if properly raised in the written statement for trial in the suit. However, the learned Single trudge has not prohibited the appel-- lants from carrying on the construction work on the ground that the agreement was not subsisting but on the ground that the appellants had not obtained "no objection certificate" or approval of the authority under the Sind Building Control Ordinance, 1979 in respect of the plan for raising the construction on the land in question. In fact he has permitted the appellants to carry on the constructions' on the land in question after obtaining the such certificate or approval under the Sind Building Control Ordinance.
11. With regard to the submission that to learned Single Judge has not taken into consideration the order dated 8th May, 1980 passed by Mr. S.A. Nizami, firstly, it is not shown that the same was brought to the notice of the learned Single Judge; secondly, it is not stated that the order was acted upon and pursuant to the same the building plan was approved. In fact in the counter- affidavit filed in this appeal in reply to the application for temporary relief respondent No. 1 in paragraph 5 there of has stated that the plan submitted by the appellants was not approved due to several objections which were not complied with and the position remained the same till the order impugned in this appeal was passed. The said respondent has further stated in paragraph 6 of his counter --affidavit that after passing of the order in appeal the appellants seeing no way out submitted another new plan for regularization of the construction which they had unauthorisedly raised and which were against the rules of the Sind Buildings Control Ordinance. Therefore, even if the sub--mission is correct that does not affect the correctness of the order.
12. As regards the injunction prohibiting the appellants from parting with the possession of the newly- constructed building or any portion thereof, it was urged that under the agreement the appellants were entitled to let out the same and,, therefore, this relief is against the terms of the agree--ment.
13. Even if it is assumed that the agreement is not validly terminated, still the order which directs the maintenance of status who in our opinion too should be maintained if for no other consideration for the reasons that the building! Appears to have been constructed without approval of a plan and if any party is inducted in the building and subsequently the building is demolished it may create many complications and may possibly lead to further litigation.
14. We therefore, find no substance in this appeal and accordingly dismiss it. We however, in the circumstances of the case, leave. The parties to beat their own costs.