1. ' SAJJAD ALI SHAH, J.--This petition is filed Under Article 199 of the Constitution of Islamic Republic of Pakistan by nine petitioners from whom five namely (1) Mrs. Hamida Khuhro, (2) Mrs. Naeem Malik,
(3) Abdul Razzak Adamjee, (4) Zahid Adamjee and (5.) Ibnul Hassan filed applications under order I, Rule 10, C.P. C. Amongst them they filed four applications as two of them Mts. Hamida Khuhto and Mrs. Naeem had filed joint application, while the remaining three filed separate applications.
2. Above-mentioned applications were filed in Suit No,888/1988 for declaration, which is filed by M/s Datari Construction Co.(respondent No,2 in this petition) challenging withdrawal of approved plan by Karachi Building Control Authority (respondent No,3 in this petition) in respect of building to be built on Plot No,G/19 in Block 5 KDA Scheme'No,5, Clifton, Karachi. Suit is pending in the Court of VIth Senior Civil Judge (East) Karachi (respondent No,1 in this petition). All the four applications under Order 1, Rule 10, C.P.C. Were dismissed by the trial Court vide order dated 9th July, 1988. It would not be out of place to mention here that the case of intervenors before the trial was that they reside in residential area where disputed plot is also situate on which nine-storeyed building is proposed to be constructed when in that locality there is permission for construction of four storeys only.
3. Objection was raised that construction on the disputed plot as proposed would interfere with privacy, relative calmnes and peace in the area and would aggravate traffic congestion and water, electricity and other co-related amenity problems. Intervenors also pleaded that they would be deprived of their rights of peaceful enjoyment of their property.
4. ' Applications under Order I, Rule 10, C.P.C. Were dismissed on the grounds inter alia that intervenors were not necessary parties and suit could be decided even without their participation. In the said suit only question of cancellation of building plan is involved. If the rights of intervenors as to their privacy and comfort are affected, they could establish them by filing separate civil suit, where they could be allowed to adduce evidence in support of their claim. Prayer of intervenors was resisted on the ground that if it was allowed, it could change the nature of the suit. It was held by the trial Court that intervenors were not directly interested in the issues between the parties to the suit.
5. ' Having failed in their attempt to be joined in the suit proceedings as parties, intervenors surprisingly did not file revision application under section 115 of Civil Procedure Code in spite of the fact that there was no legal impediment in the way df doing so.
6. ' Instead, intervenors have filed Constitutional Petition in the High Court challenging the order of trial Court in suit proceedings dismissing their applications under Order 1, Rule 10, C.P. C. Incidentally it may be mentioned that in suit' proceedings Karachi Building Control Authority (respondent No,3 in . This petition) as defendant filed application under section XXXIX Rules 1 and 2, P.P.C. In addition to the stay application which was already there on the record filed by plaintiff in the suit. Trial Court allowed stay application of plaintiff in the suit and dismissed stay application .Of defendant in, the suit, against which appeal is filed which is pending before learned ADJ. Trial Court also rejected application under section VII Rules 10 and 11, C.P. C. Filed by defendants in the suit, against which revision is filed, whcih is pending before learned ADJ. Only intervenors have declined to file revision against dismissal of their applications under section I, Rule 10, C.P.C. And elected to file Constitutional Petition in the High Court.
7. ' While confronted with this question as to why forum of revision was not utilised which was available under the ordinary law u/s 115 CPC, Mr. Naeemur Rehman Counsel for Petitioners replied that it was not done for three reasons. Firstly that cause of action in the' suit is different and comes in the way inasmuch as withdrawal of approved plan is not illegal according to the petitioners.
8. Secondly intervenors do not have in, strict juristic sense a legal claim to be agitated before the ordinary Court. Thirdly writ is competent even when revision is available. Since the first two reasons mentioned above are inter-related, we propose to deal with them together.
9. ' So far the first reason is concerned it is not understandable as to how and why cause of action in the suit should come in the way of petitioners if they wanted to join the suit proceedings as intervenors. Perhaps they wanted to strenghen the case of defendants in the suit that approved plan was 'rightly and validly withdrawn. They were disappointed when the trial Court held that they were not necessary parties as they were not directly interested in the issues between the parties and secondly if they claim any legal rights, it is open to them to establish such rights in a separate suit.
10. ' Now applications under Order I, Rule 10, C .P.C. Alongwith supporting affidavits filed in the trial, Court are available in the record of this petition, perusal whereof shows that stand taken by petitioners/Intervenors is that they are against construction of multistoreyed building for the reason that nuisance would be caused and their rights with regard to privacy and comfort would be affected. Applications and supporting affidavits mentioned above 'do not show that intervenors were under impression that they did not have in strict juristic sense legal rights or claims to be agitated before the ordinary Court. If this was correct, they would not have attempted to join the proceedings in the suit. It is apparent that they had become wiser after such observations were made in the order by the trial Court, whereby their applications were dismissed. Now once they pursued remedy in the ordinary law, they should continue following other remedies provided in the framework of ordinary law and exhaust the remedy of revision. It is also open to them to file separate suit to establish their rights if they have any.
11. ' It would be pertinent to point out that it has been done so already and as a matter of fact two petitioners/Intervenors namely Abdul Razak Adamji and Hameed Adamji have filed in represitative capacity Suit No,570/1988 in this High Court on the original side on behalf of residents of the area. n the said suit the defendants are Datari Construction Company and Karachi Building Control Authority, Prayer in the plaint in the said suit is for declaration that defendants are not entitled to commercialise the plot as it would create public nuisance shattering calm and peaceful atmosphere of the area. It is therefore beyond dispute that suit is proper and efficacious remedy, which is being diligently pursued, as such petitioners 'cannot be allowed to additionally invoke constitutional jurisdiction. There is no gainsaying that number of petitioners is large and some of them did not attempt, to join as intervenors or are not plaintiffs in the suit for the reason that cause is common and suit is in representative" capacity and moreover efficacious remedy is being followed.
12. ' So far third reason is concerned that writ petition is competent even when remedy of revision is available, learned counsel for petitioners did not press this point whole-heartedly any further for the reason that in the instant case revision available was nOt departmental remedy of revision but it was remedy of revision in the ordinary law arising from civil suit under section 115 of Civil Procedure Code.
13. ' In support of contention that Constitutional petition is competently filed learned counsel for petitioners cited case of Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 Supreme Court 223) and submitted that for maintenanee of proceedings of this nature it is enough if applicant discloses that he has personal interest in the performance of legal duty, which if not performed would result in loss of some personal benefit. In the reported case Supreme Court held that the Improvement Trust had under taken to provide a, facility to the residents of the locality contained the scheme duly sanctioned by the Government and then' subsequent' deprivation of such facility would confer a valuable right upon the residents of the scheme to compel the Trust to discharge its obligation of executing the scheme as sanctioned by the Government. Perusal of reported case shows that party had directly4filed Constitutional petition which was dismissed by the High Court and then appeal in Supreme. Court was also dismissed but with obsevations favourable to the appellant. In the instant case facts as stated above are different and the petitioners or some of them attempted to join suit proceedings between other parties . To enforce their claims and when their applications were dismissed they refused to file revision allowed under ordinary law. Subsequently some of petitioners filed a s4parate suit in representative capacity against the same parties in which cause of action is substantially the same, hence in presence of that efficacious remedy, it is not open to the petitioners to file Constitutional petition.
14. ' This petition is not maintainable for other reason also. In the prayer clause cf petition are impugned some other orders passed in suit proceedings by the trial Court on 7-7-1988 on application under Order VII Rules 10 and 11, C.P.C. And under Order XXXIX, Rules 1 and 2, C.P.C. Against which affected parties have filed appeal and revision which are pending in the competent Courts and if this petition is admitted and entertained then it would amount to depriving the Courts of competent jurisdiction to hear those matters.
15. ' In our view as stated above, after dismissal of applications under Order 1, Rule 10, C.P.C., it was open to the petitioners/ Intervenors to file revision under section 115, C.P.C. We are fortified in our view by ruling of the Supreme Court ,in the case of H .M. Saya and Co. Karachi v . Wazir All Industries Ltd. , Karachi and another (PLD 1969 Supreme Court 65) wherein it is held that a stranger to suit or proceeding is competent to file appeal if he is adversely affected by order passed in such suit or proceeding. Of course it goes without saying that if instead of appeal, remedy of revision is made available under the framework of that law, the same is to be availed. If intervenors wish to oppose construction of multi-storeyed building on the ground that their rights relating to easements and privacy are infringed, the can file separate suit and not a Constitutional petition. In this context reference can be made to the order dated 17-2-1982 passed by Division Bench of 'this High Court in unreported case C.P, No,888/1981 entitled Shahid Mansoor v. Dy. Controller Building and others, certified photo copy of which is available in the record.
16. ' For ,the facts and reasons stated above, we find no merit in this petition, which is dismissed in limine.