' FAKHRUDDIN H. SHAIKH, J.-This is a High Court Appeal from the order of the learned Single Judge in Suit No, 456/1981 dated 27th October, 1981 whereby the application of Respondents Nos. 1 and 2 for injunction against the appellant was allowed. The facts leading to this appeal may be briefly stated as under :-
2. Respondents Nos. 1 and 2 bad filed a suit for declaration and permanent injunction against appellant Haji Abdul Razzak. They had also impleaded Karachi Development Authority (K. D. A.), Master Plan Department of the K. D. A., the Administrator A I-Hilal Co-operative Housing Society Ltd.
And Pakistan through Secretary Ministry of Works, Government of Pakistan, Islamabad as defendants. The case of the Plaintiffs Haji Abdul Karim Vayani and Akhtar Wasim was that the Government of Pakistan had created Karachi Improvement Trust (K.I.T.) in the year 1950 which was later succeeded by K.D.A. For the purpose of preparing various town expansion/improvement schemes for the development and allotment of plots of land mainly for residential purposes and some for commercial and amenity purposes. One such scheme prepared by the K.I.T. And approved by the Government and continued to be implemented later by the K.D.A. Was scheme No, 7 in respect of Blocks Nos. IV and V situated on University Road, Karachi. This scheme originally comprised various housing societies including Al-Hilal Co-operative Housing Society Limited.
3. It was further claimed by the said plaintiffs/respondents that residential plot No, D-35 situated in Al-Hilal Co-operative Housing Society Ltd., University Road, Karachi measuring 1248 sq. Yds. Was owned by defendant No, 1 i,e, appellant Haji Abdul Razzak. Respondent No, 1 was also allotted Plot No, C-26 in the same Housing Society in the scheme. Respondent No, 1 has constructed a double- storeyed bungalow on the said plot and obtained 99 years lease from the K.D.A. It is further claimed that the late father of Respondent No, 2 (who is plaintiff No, 2 in the original suit) also purchased Plot No, C-25 from one Mrs. Lubna Ansari. Respondents Nos. 1 and 2 have alleged that they had purchased these plots on the assurance given by the K.D.A. That the area under the Improvement Scheme No, 7 including Al-Hilal Co-operative Housing Society, Ltd. Would be treated as residential area. These respondents had raised constructions on their respective plots in the hope that they shall enjoy peaceful life in the residential area without any violation of their right of privacy.
4. The appellant, who is owner of Plot No, D-35 approached the other respondents for commercialization of the said plot. The administrator of Al-Hilal Co-operative Housing Society granted such permission to the appellant, which according to Respondents Nos. 1 and 2 was illegal and in disregard of their protest. According to the plaintiffs, the Administrator of Al-Hilal Co- operative Housing Society (Respondent No, 4) was not empowered to grant such N.O.C. To the appellant: The appellant also succeeded in getting approval for commercialization of the plot from Respondent No, 3, the K.D.A vide letter dated 17th August, 1980 This permission, according to the plaintiffs/Respondents Nos. 1 and 2, was illegal in view of the provision of the Sind Building Control Ordinance, 1971. This permission for commercialization is alleged to have been allowed to the appellant by Respondents Nos. 3 and 4 without publishing any public notice in any newspaper. The grievance of the plaintiffs/ respondents is that the appellant intends to raise multi-storeyed building on Plot No, D-35, that the ground floor of this building shall be used for commercial purposes while the other four floors for offices. Which will result in violation of the rights of the plaintiffs/respondents. It is claimed that the orders passed and permission granted by Respondent Nos. 3 and .4 for commercialization of the plot and permitting the appellant to raise multi-storeyed building is illegal, mala fide, incompetent and ultra vires of their powers and as such the same is liable to be disregarded. They have, therefore, prayed for following reliefs in their suit
(a) Declaration that the plaintiffs have an indefeasible vested right to peacefully use and enjoy their respective private properties/ bungalows constructed on Plots Nos C-26 and C-25 and owned by them respectively, situated in the area of Al-Hilal Co-operative Housing Society Ltd., University Road, Karachi without interference, lot or hindrance as heretofore, and which rights and interests of plaintiffs in their properties will be violated if conversion of Plot No, D-35 Al-Hilal Society, University Road, Karachi from residential to commercial use with the permission and/or approval of defendants Nos. 2 to 4 at the request of defendant No, 1 is permitted and if approval of Defendant No, l's building plans for the construction of a multi-storey building on Plot No, D--35 (ground plus four floors) comprising shops on the ground floor and offices/ apartments on the four floors on top thereof, is given by Defendants 2 and 3.
(b) Permanent injunction restraining the defendants Nos. 1 to 4 and their agents, employees, servants, contractors engineers, architects, partners, directors. Attorneys or workmen and all persons acting for, through or under them from raising any construction of any shops and/or apartments and restrain them from raising, constructing any residential building comprising more than two floors (ground plus one floor) on residential plot No, 35-D, Al-Hilal Co-operative Housing Society, University Road, Karachi, in any manner whatsoever.
(c) Permanent injunction against Defendants Nos. 1 to 4, jointly and/ or severally, and against their agents, employees, servants, restraining them from approving and/or sanctioning the building plans for raising any construction of any commercial building or shops and restrain them from raising, constructing any residential building comprising more than two floors (ground plus one floor) on residential Plot No: D-35, Al-Hilal Co-operative Housing Society Ltd., University Road, Karachi, in any manner whatsoever and if building plans have been approved they shall be cancelled by defendant No, 3.
(d) Injunction mandatorily directing the defendants, their servants, employees, agents, jointly or severally, to demolish and/or cause to be demolished any part of the commercial building or shops constructed on Plot No, D-35 Al-Hilal Co-operative Housing Society, University Road, Karachi and/or any part of multi-storey building," and/or Alongwith the suit the Plaintiffs/Respondents Nos.
1 and 2 had filed an application for grant of injunction under Order XXXIX, rules 1 and 2 praying that the appellant and Respondents Nos. 3 to 5 may be restrained from raising and/or continuing to raise any construction on the plot of land A bearing No, D-35 situated in Al-Hilal Co-operative Housing Society Area on the University Road, Karachi pending disposal of the above suit Ad interim orders was also prayed for in the interest of justice" in terms of the above prayer.
5. The grounds upon which the interim injunction was claimed are contained in the affidavit of respondent Haji- Abdul Karim in which he has stated that the construction of the multi-storeyed building by the appellant on Plot No, D-35 will infringe the right of the Plaintiffs/Respondents No, I and 2. It has not been asserted either in the plaint or in the said affidavit as to what are the vested rights of the Plaintiffs/Respondents which will be infringed if the multi-storeyed building is raised by the appellant on the plot. The main ground of the plaintiffs/respondents Nos. 1 and 2 appears to be that Respondents No, 3 to 5 have illegally allowed the respondents No, 1 and 2 to raise multi- storeyed building on the plot in question after having commercialised the plot. Appellant Haji Abdul Razzak filed objections to the injunction application of Respondents Nos. 1 and 2 and pleaded that the suit was not maintainable, that it was barred by the provisions of K. D. A. Order, 1957 and Sind Building Control Ordinance, 1979, that he had purchased the plot in the year 1979 for the purposes of raising a multi-storeyed building thereon after having obtained N.
0. C. And permission from relevant authorities and after getting the area commercialised through Master Plan Department of the K. D. A. It is also urged that the relevant authorities had the powers to grant N.
0. C. And permission for commercialization of the area. It is further urged that the suit has been filed by Respondents Nos. 1 and 2 in order to black-mail the appellant who has invested huge amount in the construction raised on the plot after having demolished the existing house. It is further urged that the appellant shall suffer irreparable loss if the construction is stopped because he is obliged under the law to complete the construction within a specified period of time and in the event of his failing to do so he will be subjected to penalty and legal consequences flowing therefrom. More than half of the property has already been booked by the appellant in favour of the intending allottees, which fact was in the knowledge of the plaintiffs/respondents.
6. The learned Single Judge after hearing the learned counsel for the parties allowed the injunction application of Respondents No, 1 and 2 in the following terms :- "In the facts and circumstances of the case I restrain the defendant No, 1 from constructing the building beyond the first floor. The defendant No, 1 is allowed to construct according to the approved plan and the building so constructed shall be restricted to ground floor and first floor.
Defendant No, 1 is further restrained that before or during construction or after completing the construction as permitted by this order, defendant No, 1 his agents, employees or representatives shall not transfer, sell, mortgage, lease, licence, hand over possession to any person or in any manner create any interest of third party in the building or part thereof. I further order that defendant No, 1, his agents, employees or representatives shall not use or occupy in any manner the\ building or any part thereof till further orders."
' The above conclusions were arrived at by the learned Single Judge on the basis of his findings that there was a prima facie case in favour of the plaintiffs/respondents Nos. 1 & 2, that balance of convenience is also in their favour and that in case any injunction is not issued, irreparable loss shall be caused to them.
7. The learned Single Judge has granted the injunction application of the Plaintiffs/Respondents Nos. 1 & 2 mainly on the ground that they have got a prima facie case. He has further .Held that as they have a prima facie case, therefore, there is likelihood of their suffering irreparable loss which question has been linked with the question of prima facie
8. So far as question of prima facie case is concerned, the main argument of the counsel for respondents Nos. 1 and 2 was that the K.D.A. Had no power to. Alter Scheme No, 7 so as to permit commercialisation of the building on plot in question which was allotted for a residential building.
Reference may here be made to clause (8) of the lease deed of the plot in question which stipulates, that the lessee i,e, the appellant shall not use the plot for commercial purpose except with the permission of the K. D. A. This means that the commercialisation of the plot was subject to permission of the K.D.A.
9. The plea of the learned counsel for respondents Nos. 1 and 2 before the learned Single Judge and also before us was that the power to permit alteration in the scheme could be exercised by. K.D.A.
Only if the scheme had not been completed and that as soon as the scheme is completed, the K.D.A. Becomes functus officio so far its power to alter the scheme is concerned. On this point the learned Single Judge has observed that there was no evidence whatsoever from their side as to whether Scheme No, 7 had been completed or not completed. The learned Single Judge further observed that since it was not proved that the scheme had not been completed, therefore, the K.D.A. Had exhausted its powers in respect of alteration of the scheme. The question of prima facie case was decided .By the learned Single Judge as follows :- "The entire controversy rests on determination whether the K.D.A. Has jurisdiction to alter the residential plot into a commercial plot. This fact as pointed out can be decided only after the evidence is brought on the record to show that scheme has not, been completed therefore at the moment it is not possible to express any view on this point as it will affect the merits of the case. In the absence of any evidence that the scheme has not been completed there being no other provision that may have been pointed out by the learned counsel for the parties that the K.D.A. Has power to grant permission to convert the residential plot into a commercial plot it seems that the plaintiffs have made out a, prima facie case."
10. It is a well-established rule of the law of evidence that a party who asserts a fact, is to prove the existence of that fact... If a party bases his case upon the existence of a certain fact then the burden of proving that fact is upon that party. In the present case the fact of the completion of the scheme by K.D.A. Has been asserted by Respondents Nos. 1 & 2, i,e, the plaintiffs. Hence the burden of proving the fact of completing of scheme No, 7 was upon the plaintiffs. In our view, for making out a prima facie case it was required that the plaintiffs bring on record some material or evidence in that regard. We, however, find that there is no material or evidence on the record on behalf of the plaintiffs to suggest that the Scheme had been completed. Neither in the plaint' nor in the counter- affidavits that they have been filed, by way of reply to the appellant's affidavits, the plaintiffs have asserted that the Scheme has been completed. Hence if the question of prima facie case is to 'be determined on the question of completion or otherwise of scheme No, 7, then on the basis of the state of record of this case, it has to be observed that they is no evidence or material in this case at this stage to the effect that the Scheme has been completed. Then, there is clause (8) of the lease deed which gives the right to K.D.A. To commercialize the plot. In these circumstances, we are of the view that the respondents I and 2 bad not out a prima facie case.
11. We have found it difficult to agree with the learned Single Judge that a prima facie case was made out by respondents Nos. 1 and 2. As observed earlier, in our view no prima facie case has been made out. As the respondents Nos. 1 and 2 have not made out a prima facie case, they were not entitled to grant of a temporary injunction. This appeal is allowed and the order dated 27th October, 1981 of the learned Single Judge is set aside. The result is that C.M.A. 2485/81 (temporary injunction application) of respondents Nos. 1 and 2 in Suit No, 456/1981 stands dismissed.