1. ' This order will govern the disposal of CMA No,3513/83, dated 15th October,1983 filed by the plaintiff in Suit No,241/82 and CMA No,3381/83 filed by the plaintiff in Suit No,592/83.
2. ' The plaintiffs in Suit No,241/82 are the owners in occupation of first and the second floors of building bearing Survey Sheet No,PR-2, S.No,3/1 and 3/2 (old S.No,F/3/18/19), situated at Preedy Street, Preedy Quraters, Sadar, Karachi. The plaintiffs 1 to 4 are the legal heirs.Of one Mst.Safia Begum w/o late Syed Matloob Hassan, who was transferred tenement No,1/1 on the 1st floor by the Settlement Authorities vide PTD No, KYC/12307/Dsc-II, dated 27th January, 1967. Tenement No,2/2 which is on the 2nd floor was originally transferred to one Mst. Amina Begum wife of Badaruddin vide PTD KYC/210/Dsc-II, dated 29th September,1963 who sold the same to one Dr.Syed Mohammad Asghar and on whose death it devolved on one Syed Mohammad Jamil and on his death the present plaintiff No,5 inherited the same. Tenement No,G/1 on the ground floor of building was originally transferred to one Dr.S.D.Anklesaria Dinshawji vide PTD KYC/330/Dsc-II, dated 21st August,1963 who sold it to Fakir Mohammad son of Khan Bahadur and Azeem Khan son of Abdul Manan jointly. Later on Azeem Khan died and his share in the property devolved on defendants 2 to
4. Besides these persons there are also other transferees of the premises on the first and the second floors but they are not party to any of these suits. It is alleged by the plaintiffs in Suit No,241/82 that the defendants are intending to convert the residential premises in their occupation namely, G/1, into a market which will adversely affect the load bearing capacity of the walls on the ground floor and as the building is a very old one such alterations and additions would result in serious danger to the safety and life of the occupants of the upper floors. It is also alleged by the plaintiffs that their alleged right of easement of privacy, light, air and the passage are likely to be disturbed by such conversion of the premises by the defendants. Alongwith Suit No,241/82 an interim application (CMA No,2483/83) was filed by the plaintiffs for grant of a temporary injunction seeking to restrain the defendants from making any structural alteration in the premises namely G/1 of the building and from converting a residential flat into a commercial premises and from doing or causing to be done any act or thing likely to result in the demolition of the said main building or in diminishing the easements of privacy, Light, air and passage and/or obstructing the peaceful use of their tenements and/or disturbing the ordinary comfort of their life or of those residing with them in any manner whatsoever till the disposal of the suit. This application was however dismissed as premature by the Court on 21st September, 1983 when after notice the learned counsel for the defendants appeared in Court and made a statement that the defendants had neither collected any material on the site nor any construction or alteration can be made in the premises owned by the defendants until and unless they obtain sanction under sections 6 and 7 of the Sind Building Control Authority. The Court, however, while dismissing the above application as premature left it open to the plaintiffs to move fresh application as and when they suspect any construction activities on the site.
3. ' It appears that after about 17 days of the dismissal of the above interim application in Suit No, 241/82, one Rafiq Ahmed, who claims to be the Contractor engaged by the defendants in Suit No,241/82 instituted Suit No,592/83, for permanent injunction against the defendants (who were plaintiffs in Suit No,241/82) to restrain them from obstructing the proposed additions and alterations in accordance with the approved plan, in the premises bearing No,G/1, on the ground floor of the building. Alongwith the suit he also filed an interim application for grant of a temporary injunction till the disposal of suit against the defendants restraining them from obstructing him in execution of construction, alteration, addition or conversion of premises G/1, without due process.
4. This interim application was placed before me for orders on 9th October,1983 when I ordered notice for 13th October,1983 and meanwhile granted ad interim injunction against the defendants as prayed. On 13th October,1983 when the learned counsel for the defendants appeared before me he pointed out that in the interim order served on the defendants the words "without due process of law" as mentioned in the application of plaintiff were not incorporated. I accordingly clarified that the order served on the defendants should be read as inclusive of the expression "without due process of law." The learned counsel for the defendants on that date also expressed apprehension that the proposed alteration and addition in the premises on the ground floor is likely to endanger the safety of the upper floors and therefore I further modified my order dated 9th October, 1983 to the extent that while making construction in accordance with the approved plan in premises G/1 the plaintiff shall take all necessary and Possible steps to ensure the safety of the 1st and second floors and damage caused to the 1st and .Second floor premises in the course of construction on the ground floor, it shall be the responsibility of the plaintiff. The hearing of at the request of defendants was adjourned to 20th October, 1983, and counter-affidavit and the rejoinder were directed to be filed in the meanwhile. On 20th October, 1983 the learned counsel for the defendants filed an application for extension of time to file counter-affidavit and also prayed for adjournment as he was not well and with the consent of learned counsel for the plaintiff the hearing was adjourned to 3rd November,1983. It appears that on 20th October,1983 when Mr.Masood Hussain made a request before me for extension of time for filing counter-affidavit, he had already filed an application (CMA No,3513/83) on 15th October,1983 in the other Suit No,241/82 for grant of temporary injunction which came up for orders before my learned brother Ibadat Yar Khan, J, and the learned Judge while directing notice of that application to defendants in Suit No,241/82 ordered maintenance of status quo in the meanwhile. CMA No,3513/83 came up for hearing before my learned brother on 26th October,1983 when it was adjourned to 1st November,1983 in presence of counsel for both the parties. On 1st November,1983 this application once again came up for hearing before the learned Judge when he observed that the controversy in Suit No,241/82 and Suit No,592/83 are same and therefore in order to avoid the possibility of two conflicting orders being passed it was ordered by the learned Judge that both the Suits should proceed before one and the same Judge. At that time the learned counsel who appeared for the defendants in suit No,241/82 made a statement before the learned Judge that his client has stopped all constructional activities after service of the status quo order on 24th October,1983. This statement made by Mr.Abbas Zia, however, was not accepted by Mr.Masood Hussain and therefore the learned Judge appointed Nazir of this Court to make an inspection of the site and submit his report. The hearing of both the suits was accordingly adjourned to 7th November,1983. On 7th November,1983 when both the suits were placed before the learned Judge he expressed the view that since the order dated 13th October,1983 passed in Suit No,592/83 by me was later in time, both the suits may be placed for further hearing of the two applications before me. At the request of the learned counsel for both the parties the learned Judge fixed the hearing of both the applications on 8th November,1983. In these circumstances the above-noted applications alongwith an application under Order VII, rule 11, C.P.C. Filed by the defendants in Suit No,592/83 came up for hearing before me on 8th November,1983. On that date after hearing the learned counsel for the parties I disposed of application under Order VII, rule 11, C.P.C.Filed by the defendants in Suit No,592/83 and adjourned the consideration of application under Order XXXIX, rules 1 and 2, C.P.C. Filed in both the suits by the plaintiffs to 15th November,1983. On 15th November,1983 I heard detailed arguments on both the injunction applications in the two suits and reserved orders thereon. However, on 17th November,1983 Mr.Abbas Zia, the learned counsel for the plaintiff in Suit No,592/83 presented an application under section 151, C.P.C. In Chamber on which I ordered notice to the defendants. In view of the application under section 151 filed by the plaintiff in Suit No,592/83 I reheard the application on 7th December, 1983 and reserved orders thereon once again.
5. ' From the above narration of the facts it is quite clear that the plaintiffs in Suit No,241/83 are in occupation of the 1st and the 2nd floors of the building while the defendants in Suit No,241/82 are in occupation of the ground floor premises. Both the plaintiff and the defendants are the transferees or the persons claiming through the transferees of the respective premises in their occupation. It is also prima facie established from the documents brought on record that the premises on the ground floor which is occupied by the defendants in Suit No,241/82 is used for a long time as Hotel and this premises is now being converted by the defendants in Suit No,241/82 under a duly approved plan which has been sanctioned by the Building Control Authority into a commercial market. Mr.Masood Hussain, learned counsel for the plaintiffs in Suit No,241/82 and defendants in Suit No,592/83 mainly contended before me that the approved plan produced in Suit No,592/83 by the Contractor (plaintiff) was obtained by the defendants in Suit No,241/82 by practising fraud and misrepresentation on the Building Control Authority. It is next contended by the learned counsel that the proposed additions and alterations in the building are likely to endanger the support enjoyed by the upper floors of the premises and proposed construction is also likely to adversely affect the right of easement namely, privacy, light, air and the common passage enjoyed by the plaintiffs who are residents of the upper floors of the building. Alternatively it is contended by Mr. Masood Hussain, that the agreement on the basis of which plaintiff in Suit No,592/83 has instituted the suit was executed by only one of the transferees namely, Fakir Mohammad and therefore the said agreement is not valid and binding. In reply to the above submission of Mr. Masood Hussain, Mr. Abbas Zia, the learned counsel for the plaintiff in Suit No,592/83 and defendants in Suit No,241/82 contends that the approval of the plan by the Building Control Authority shall be deemed to have been regularly done as under the Evidence Act unless contrary is proved there is presumption in law that all official acts are duly performed. It is also contended by the learned counsel that if there is any fraud or misrepresentation as alleged by Mr. Masood Hussain, it is open to his clients to move the Building Control Authority who under the relevant law possessed sufficient power to recall such a sanction which has been obtained as a result of fraud and misrepresentation. Mr. Abbas Zia, further contended that although the agreement in favour of the plaintiff in Suit No,592/83 is executed only by one of the transferees of premises No,G/1, but this document is fully accepted by the other co-owners who have now executed a general power of attorney duly registered before the Sub-Registrar, Attock, in favour of Fakir Mohammad authorising him to do all acts including the power to enter into an agreement of the nature which is executed by Fakir Mohammad with the plaintiff in Suit No,592/83. Alternatively, Mr. Abbas Zia, the learned counsel for plaintiff in Suit No,592/83, contends that Fakir Mohammad, the executant of the agreement being admittedly one of the co-owners of the premises and in exclusive possession of the same was entitled under the law to enter into the agreement Annexure 'H' with the plaintiff in Suit No,592/83 as the aforesaid agreement did not amount to disposal of the property but only related its improvement. In addition to the above submission Mr. Abbas Zia, further stated at the re-hearing of these applications that in order to dispel the apprehensions expressed by Mr. Masood Hussain, with regard to the safety of 1st and second floors premises on account of the proposed alterations on the ground floor premises, his client is prepared to accept the appointment of a licensed Architect under Nazir of this Court who may inspect the premises to find out if the proposed additions and alterations on the ground floor premises is likely to endanger the safety of the upper floors of the building and his client will start the construction only after the Architect so appointed certifies to this Court that the proposed construction is not likely to affect adversely the upper floor premises in the building.
6. After hearing the learned counsel for the parties at length I am of the view that the plaintiff in Suit No,592/83 has succeeded in making out a prima facie case for grant of injunction subject to certain conditions which 1 will state in the end of this order. It is an admitted position that the attendants in Suits No,592/83 and plaintiffs in Suit No,241/82 have no right, title or interest in the premises on the ground floor which is jointly owned by the defendants in Suit No,241/82. It has also come on record that ground floor premises was being used and is being used for a long time as a Hotel and the proposed alterations and additions in the ground floor premises by the defendants in Suit No,241/82, to convert the same into a commercial market has been approved by the Building Control Authority which has sanctioned the plan for the proposed alterations and additions. Under law every official act is presumed to have been duly performed unless contrary is proved. Mr. Masood Hussain does not challenge the genuineness of the approved plan but only contends that it has been obtained by the defendants in Suit No,241/82 by practising fraud and misrepresentation on the Building Control Authority. If it is so it is open to the plaintiffs in Suit No,241/82 and defendants in Suit No,592/83 to move the concerned authorities for recalling the aforesaid sanction as it is contended before me that the Building Control Authority which granted the sanction of the plan possesses sufficient power under the relevant Act to recall or cancel a sanction obtained by fraud and misrepresentation. In so far the contention of Mr. Masood Hussain, that the proposed construction/additions and alterations on the ground floor are likely to interfere with the alleged rights of easement of his clients namely, privacy, light and air is concerned, the same will be investigated at the trial of the suit when evidence is available. For the present it cannot be said that these rights will be disturbed by the proposed construction as admittedly the alterations and additions are being done on the ground floor premises and these alleged rights are claimed in respect of premises situated on the upper floor. It is not disputed before me by Mr. Masood Hussain, that the proposed construction on the ground floor will not in any way affect the common passage used and enjoyed by the occupants of the upper floor but it is asserted that as a result of conversion of ground floor premises into a commercial market the free use of this passage will be disturbed, as construction of a commercial market on the ground floor will lead to congestion which may affect the free use of passage as well. The area where the building is situated is predominently commercialized area of the city and Mr.Masood Hussain, admitted before me that close to this building there are large number of commercial premises. I, therefore, for the present find no justification in the argument of the learned counsel that by conversion of the present premises on the ground floor which was admittedly used by the defendants in Suit No,241/82 as a Hotel the right of passage enjoyed by the plaintiffs in Suit No,241/82 will in any way be disturbed or interfered with. In so far the contention of Mr. Masood Hussain, that the agreement under which the plaintiff in Suit No,592/83 proposes to carry out construction was executed by only one of the transferees the same also does not hold good any further as firstly, Mr. Abbas Zia, the learned counsel for the plaintiff in Suit No,592/83 states before me that this agreement has the full consent and authority of all the defendants in Suit No:241/82 and he has also now produced before me a registered general power of attorney executed by the L.Rs, of co-transferee Azeem Khan in favour of Fakir Mohammad the executant of agreement Annexure 'H' which authorises Fakir Mohammad to-make additions, changes or alterations in the premises to his choice. The approval of the plan authorising additions, alterations and conversion of the ground floor premises into a market by the Building Control Authority is a prima facie evidence that such sanction has been accorded by the Authority after applying his mind and after taking into consideration all the relevant circumstances necessary for grant of such a permission. Although the contention of Mr. Masood Hussain, that as a result of proposed additions and alterations on the ground floor the safety of the upper floor would be endangered must have been looked into by the Building Control Authority, while sanctioning the plan for the proposed additions and alterations but in order to dispel the fear expressed by Mr. Masood Hussain, the learned counsel for the plaintiffs in Suit No,592/83 has come out with the proposal that his client is prepared to consent to the appointment of an Architect under the control of Nazir who may inspect the premises before start of addition and alteration work with a view to find out if the alterations and additions would in any way endanger the right of support enjoyed by the occupants of upper floor and the safety of upper floor premises. I, therefore grant temporary injunction in Suit No,592/83 as prayed subject to the condition that before making the proposed construction the building will be inspected by a licensed Architect to be appointed by the Nazir of this Court at the cost of the plaintiff in Suit No,592/83 who will certify that the proposed construction is or is not likely to affect adversely the safety of upper floor premises and the right of support enjoyed by the occupants of these in any manner. The two interim applications in Suit No,592/83 and 241/82 are disposed of in accordance with the above order. The plaintiff in Suit No,592/83 will deposit with the Nazir tentatively a sum of Rs,1,000 towards expenses for appointment of a licensed Architect.
7. Injunction granted.