' Applicant above-named, being aggrieved by order dated 23rd December, 1980 of the learned District Judge, Karachi, in Civil Misc. Appeal No, 153 of 1979 by which he confirmed the order dated 31st May, 1979 of the learned Vth Civil Judge, Karachi, by which he had dismissed application under Order XXXIX. Rules 1 and 2, C. P. C. For grant of interim injunction, has preferred this petition on the following facts and grounds :-
1. Briefly the facts of the case are, that the respondents undertook the projects of constructing houses. They planned such a project of flats to be constructed as bungalow at plot No, 255, R. A.
Lines, Ingle Road, Karachi known as "Paradise Palace". In June, 1973, they started booking for the flats as advertised in 'Dawn' Karachi dated 20th May, 1973. The Respondent No, 2 is a director of respondent No, 1 and it is stated, that the respondents with ulterior motives on 31st July, 1973 got a plot No, 255-A demarcated from plot No, 255, R. A. Lines, Karachi, which had been reserved for swimming pool project and have transferred its ownership in the name of respondent No,
2. The appellant in June, 1973 approached the respondent for purchase of flat and was shown a map by the respondents, which depicted four separate blocks of flats to be constructed on each floor, while ground floor was left for the constructions of garages. In the map there were certain spaces left open on all the four sides. In front of the 4 blocks, two children parks and a swimming pcol was to be constructed. The appellant after examining the plan entered into an agreement on 21st June, 1973 for purchase of a flat bearing No, A/7, Block D, on third floor for a sum of Rs, 65,000. The area of the flat was agreed to be 1,447 sq. Ft. Appoximately. The amount was to be paid in three instalments. It is alleged that subsequent to the agreement dated 21st June, 1973 the respondent got prepared a revised plan of the said bungalow on 25th March, 1974, which changed the approved plan dated 26th June, 1973 inasmuch as each block of flats was to be constructed upto 6th floor, instead of 4 floors. There were some changes with regard to the open space left on each side in the revised plan. It is alleged by the applicant that because of the revised plan the space provided for light and air between the blocks of flats and towards the Eastern side of the flats was reduced, which is against the terms of the agreement. The covered area of the flat is also stated to have been reduced. The sub-division of plot No, 255, R. A. Lines was contrary to the agreement. The flats were completed and the applicant obtained a flat by getting the lease-deed executed in her name. It is further alleged, that the respondents charged double amount of Rs, 1,07,210 against the total sum agreed of Rs, 65,000 which was charged by the respondents as an increase of costs of construction. It is further alleged in the plaint, that the respondents started constructions on the open space in front of the four blocks of flats on plot No, 255, R. A. Lines and on the space which was left for children park and swimming pool but the said constructions were demolished by the Cantonment Board. The respondents it is alleged again started constructions on the open space, which is against the rules, terms and conditions of lease-deed with the applicant. In the plaint the applicant sought declaration to the effect, that the open space provided on plot No, 255, R. A. Lines and now numbered as plot No, 255, A It A. Lines was meant for children park and swimming pool. A mandatory injunction was also sought restraining the respondents from denying the provisions of children park and swimming pool to the occupant and permanent injunction restraining the respondents from raising construction on the open space 1. e. Plot No, 255-A.
2. An application under Order XXXIX, rules 1 and 2, C.P.C. Was file alongwith the plaint, for grant of temporary injunction, which was composed by the respondents, on the ground, that the applicant has nothing to do with the ownership of plot No, 255-A, which is shown distinctly a separate number in the said plan, whereas the applicant's right is confined only to the area shown in the lease deed, which cannot be extended to any other land. The respondents have denied having agreed to construct a swimming pool and the space for the amusement park for the children of the applicant.
3. The learned Civil Judge dismissed the application for temporary injunction observing in the impugned order, that the applicant had no prima fade case for grant of injunction and that the balance of convenience was also in favour of the respondents and that the applicant will not suffer any loss, if temporary injunction is refused, The learned District Judge while dismissing Misc. Appeal filed by the appellant against the order of learned trial Court has further observed, that the applicant has based her suit challenging the validity of the revised plan which was approved on 25th March, 1974 whereas the suit was filed on 16th May, 1979 and further that the sub-division of the plot was granted by Military Estate Officer, Karachi on 31st January, 1973 and the plan was approved by the Cantonment Executive Officer on 10th February, 1975, which order of sub-division of plot and approval of plan by the concerned authorities have not been challenged in the suit as illegal or against the provisions and rules of the Cantonment Board.
4. That applicant being aggrieved by order dated 31st May, 1979 of the learned trial Court, filed a Misc. Appeal No, 152/79, which was also dismissed by the Vth Additional District Judge, Karachi vide order dated 23rd December, 1980 and has consequently filed the above petition in this Court, on the grounds mentioned in above petition.
5. 1 have heard the learned Advocates of the parties and have gone through both the orders of the learned lower Courts and relevant documents produced by the parties and have given into consideration various authorities cited by the learned Advocates of the parties.
6. Learned counsel for the applicant in support of his above petition submitted as under.
(a) That the original agreement between the parties was subject to the original plan dated 26th March, 1973 in which the area which now forms plot No, 255-A was meant for swimming pool etc. And was not to be used for purposes of raising of any other constructions and as such mere attachment of the new plan with the lease agreement between the parties which no doubt bears the signature of the applicant, does not alter the original agreement between the parties and consequently applicant had prima facie case for grant of interim injunction, but unfortunately both the learned lower Courts on account of misreading and material irregularity in appreciation of the law, refused such interim injunction to the applicant. In view of this, learned counsel, while relying on a case reported in AIR 1946 Bom. 469, submitted, that the orders of both the learned lower Courts are liable to be set aside and the applicant is entitled to interim injunction as prayed by him in his application under Order XXXIX, rules 1 and 2, C. P. C.
(b) That by the proposed construction on separated plot No, 255-A, the easement of light and air of the applicant will be affected, in case, the above ground (a) urged by the applicant does not find favour with this Court. In view of this, learned counsel submitted. That on this ground alone, applicant is entitled to interim injunction as prayed and this important legal point has been overlooked by both the learned lower Courts.
(c) That although the constructions have been raised on the plot No, 255-A opposite to the flat of the applicant, still the other portion of plot No, 255-A is lying vacant, where swimming pool etc. As originally agreed between the parties could still be constructed and as such the interim injunction could still be issued in respect of this open space of land, which is available in plot No, 255-A, as there was an implied contract between the parties in this connection. In support of this, learned counsel has relied on cases reported in AIR 1949 East Pb. 301 and AIR 1956 Born. 151 as well as on case in 1941 E R 1143.
(d) That respondents practically admitted applicant's case in his pleadings as assertions made in the plaint were not disputed by the respondents in their counter-affidavit. In spite of this, learned lower Courts failed to take into consideration that legal position and as such the orders of both the learned lower Courts are liable to be set aside. In support of this, learned counsel has relied on a case reported in PLD 1967 Lah.
218.
7. Learned counsel for the respondents on the other hand submitted, that since with a lease agreement he plan of the proposed construction is attached, the said plan alone could be considered as agreement between the parties. In this plan, plot No, 255-A is shown as vacant and there is no mention of constructing swimming- pool or other facilities as asserted by the applicant.
Learned counsel further submitted, that plot No, 255-A does not belong to respondent No, 1, with whom applicant has entered into an agreement and it belongs to respondent No, 2 in his personal capacity and as such the agreement, if any, between the applicant and respondent No, 1 is not legally binding on respondent No,
2. Learned counsel further submitted, that constructions on plot No, 255-A opposite to the flat of the present applicant have been raised up to third storeys already and are complete except for plastering etc. And as such applicant's application for grant of interim injunction has become infructuous. Learned counsel further submitted, that the constructions raised on plot No, 255-A opposite the flat of the applicant are in accordance with the approved plan and there is distance of over 20 feet between the said constructions and the flat of the applicant and as such the question of alleged easement of light and air of the applicant being disturbed does not arise at all. Learned counsel further submitted that the applicant has not given required details, how he acquired the alleged right of easement in respect of light and air from plot No, 255-A nor he has given any details how the construction already raised have affected his alleged easement right of light and air and as such grant of interim injunction on this ground does not at all arise, on the basis of the application and affidavit of applicant, under Order XXXIX, rules 1 and 2, C. P. C. Learned counsel further submitted, that the orders of both the learned lower Courts are based on cogent reasons and applicant's application for interim injunction has been rightly rejected by both the learned lower Courts.
8. Learned counsel for respondents further submitted that this is a Civil Revision under section 115, C. P. C. And in the face of two concurrent findings of the learned lower Courts, which are neither arbitrarily nor capricious, the above Revision is not maintainable. In support of this, learned counsel relied on cases reported in PLD 1973 Kar. 718 and PLD 1975 Kar. 694 and 464 as well as on Illustrations (a) and (b) of section 7 of the Easement Act, in respect of prima facie case for interim injunction. Learned counsel also relied on cases reported in PLD 1978 Lah. 113 and 498.
9. I have carefully considered the above submissions made by the learned counsel for the parties and have goat through the authorities cited by them. The original agreement entered into by the parties dated 21st June, 1973 does not have any plan attached to it nor anything is mentioned in the said agreement for providing swimming pool etc. As alleged by the applicant in his plaint. On the contrary, the plan which has been attached with the registered lease-deed shows, plot No, 255-A as completely independent plot and as vacant and there is nothing in the said plan to show, that swimming pool etc. Were to be constructed on plot No, 255-A. In the face of this registered lease-deed and plan attached thereto, the contention of the learned counsel for the applicant in respect of implied agreement between the parties at the time of signing agreement dated 21st June, 197 cannot be considered at this stage, as there is nothing on record to raise any presumption about this implied oral agreement between the parties. The authorities relied upon by the learned counsel for the applicant are based on different facts and are not applicable to the facts of the present case at all. In view of this, I see no reason to disagree with the findings of both the learned lower Courts, that the applicant has failed to establish prima fade case, for grant of interim injunction on this basis. As far as grounds for infringement of easement right of light and air are concerned, learned counsel for the applicant admitted that superstructures have already been raised and/or almost completed, except for plastering etc. And as such in my opinion grant of interim injunction at this stage would be infructuous. Beside this, I have gone through the application and affidavit for interim injunction filed by the applicant, alongwith this suit, before the learned trial Court and do not find anything so as to establish prima facie case for infringement of the alleged easement of light and air, by the constructions which were or have been raised and which now exists on plot No, 255-A. In view of this, the findings of both the learned lower Courts in his connection, which are also based on cogent reasons, cannot be interfered with in the above petition, under section 115, C. P. C. As learned counsel for the applicant has failed to point out any illegality or material irregularily in the orders of both the learned lower Courts. In view of this, the authorities cited by the learned counsel for the respondents, namely, PLD 1973 Kar. 718 and PLD 1975 Kar. 464 and 694 are fully applicable to the present case, as applicant has even failed prima facie, to establish nuisance in respect of alleged violation of his easement right is in respect of light and air.
10. The last contention of the learned counsel for the applicant, that respondents practically admitted applicant's case in his pleadings, as assertions made in the plaint were not disputed by respondents in their counter-affidavit, also in my opinion, has no force. In this connection, I find that in para 5 of the counter-affidavit filed by the respondents to the injunction application in question, the respondents have described the claim of the applicant as set in the plaint, as imaginary and mala fide. This assertion at least shows, that the respondents have not admitted the claim of the applicant as set in the plaint. It may further be noted, that in affidavit-in-rejoinder filed by the applicant, the averments made in para. 5 of the counter-affidavit have not been specifically denied. In view of this, it cannot be said that both the learned lower Courts have failed to consider alleged admission of the pleadings of the applicant by respondents in their counter-affidavit, as in my opinion, there is no such admission of pleadings of the applicant, by the respondents.
11. In view of my above conclusions, I am of the opinion, that both the learned lower Courts have rightly refused interim injunction to the applicant, as he has failed to make out any prima facie case for grant of such injunction, as prayed by him in his application in question.
12. Therefore, I find no merits in the above Revision petition, which is consequently dismissed with costs. However, before parting with the above Revision petition, I would like to mention, that any observations made by me in respect of the plaintiff's assertions in the plaint, and/or on the merits of the applicant's suit, shall not be binding on the learned trial Court, while disposing off the applicant's suit on merits.