1. This is an application under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. Moved by the plaintiffs against the defendants Nos. 1 and 2 restraining them from demolishing or removing the structures standing on Plot No. 1/6 L. R. Situated at Lawrence Quarters, Ebigal Street, Off Nashtar Road, Karachi, during the pendency of the above suit.
2. The facts giving rise to this application are that the plaintiffs are tenants of respondent No. 3 in respect of the premises in question. The respondent No. 3 filed an application under section 13 of the West Pakistan Rent Restric--tion Ordinance, 1959, against the plaintiffs on the ground of default in payment of rent and subletting. The learned Rent Controller, Karachi, dismissed the said case by his order dated 10-4-1979. An appeal against the said order was filed by respondent No. 3 which is pending in the court of 1st Additional District Judge, Karachi. Pending the disposal of the said rent appeal, it is alleged that respondent No. 3 approached the defendants Nos. 1 and 2 for demolition of the said premises on the ground that some of the plaintiffs have raised construction of the shops recently which was mala fide on the part of respondent No. 3 with a view to nullity the process of law earlier adopted by her for eviction of the plaintiffs from the said premises. The defendants Nos. 1'and 2, thereupon, issued impugned notices dated 13-9-1979 to the plaintiffs under Sind Building Control Ordinance, 1979 stating that the plaintiffs have erected/re-erected or erecting the building constructions 9n the above-mentioned plot without sanction of the Authority as required under the Ordinance. The description of building constructions as given in this is as under "Unauthorised construction of ground floor with R. C. C. Without approved plan."
3. The plaintiffs by virtue of the said show-cause notice were called upon to forthwith stop further constructions, submit building plan together with an application for sanction and also to show cause as to Why the plaintiffs should not be required to demolish the said building constructions wholly or partly and to further show cause as to who they should not be prosecuted for offence of erecting or re-erecting the said building structure without an approved plan. The plaintiffs through their Advocate, filed their objections dated 20th September, 1979, to the said show-cause notice, coupled with a request of hearing of the plaintiffs through their Advocate, before passing any final order in the matter. 1t was alleged that the defendants Nos. 1 and 2 without giving any opportunity of being heard as requested by the plaintiffs in their Advocate's letter, issued another notice dated 24-10-1979 of 24 hours alleging the same thing as in the previous notice. This led the plaintiffs to file the above suit for declaration and permanent injunction against the defendants. Mr. Khuda Bux Omerani, learned counsel for the plaintiffs raised two fold contentions. His first contention is that the plaintiffs have not made any constructions. Whatever construction is there it exists since 1942.
4. He relies on a number of receipts issued by the then landlady in favour of the previous tenant who is alleged to have sublet the premises to the Plaintiffs with permission of the then landlady, from whom the present respondent No. 3 has acquired the ownership of the said premises, who is not their landlady. He, therefore, contends that the provision of the Building Control Ordinance, 1979, promulgated on 3rd March, 1979 are not attracted to the facts; of this case. The learned counsel for the defendants Nos. I and 2 Mr. Yaqoob Baig, frankly enough, conceded to this position that the Ordinance applies to the building to be constructed on or after 3rd March, 1979, or where the construction of the building has commenced before coming into force of this Ordinance. He, however, contended that the defendants Nos. 1 and 2 could take action under Article 72 of President's Order 5 of 1957, wherein the K. D. A. Was empowered to remove an un--authorised building. But in this case, as I find, no notice appears to have been issued under Article 72 of the President's Order 5 of 1957, because it is directed to the owner of an unauthorised building to remove the same on the service of a notice by the K. D. A. In the prescribed manner.
5. The second contention as advanced by the learned counsel for the plaintiffs is that the said notice has been got issued by defendant No. 3 with a mala fide intention to deviate from the ordinary course of law in the matter of ejectment proceedings pending in the court, thereby dispossessing or attempting to dispossess the plaintiffs from the premises in question in an unlawful manner and depriving them from their rights of pendency by illegal means.
6. On the facts and circumstances of the case pleaded before me as well as in the plaint and affidavits filed by the plaintiffs and the rent receipts and photographs of the premises in question I have come to the conclusion that the plaintiffs have got a prima facie good case and unless the defendants Nos. 1 and 2 are restrained from taking action, as contemplated in the im--pugned notices referred to hereinabove, the plaintiffs will suffer an irreparable injury. The balance of convetueage is also found in favour of granting therefore, granted as prayed. The parties during pendency of this suit.