1. ' This is a representative suit for public nuisance filed by the plaintiffs under section 91, C.P.C. On behalf of the residents of Blocks Nos.5, 7, 8 and 9, K.D.A. Scheme No, V (Clifton), Karachi with the permission of Advocate-General, Sindh.
2. Case of the plaintiffs is that they are, inter alia, residing in the above Scheme having purchased the plots from K.D.A. And constructed residential premises thereon. M/s. Shaista Estate (Pvt.) Ltd.
2. Had in 1984 obtained a permission to construct a multi-storeyed commercial building near the premises in suit on Plot No, G-7, Block No,9, K.D.A. Scheme No, V, Karachi. The residents of Clifton area came to know in May, 1988 that the Defendant No,1 had also obtained permission to construct a multi-storeyed building on residential Plot No,G-19, measuring 3,546.66 sq. Yds. Consequently a notice was sent to the Defendant No,2, K.B.C.A. By Mr.Makhdoom Ali Khan, Advocate protesting against the grant of said permission, whereupon defendant No,2 withdrew the permission granted to both these construction companies. On this Defendant No,1 gave notice under section 20-A of Sindh Building Control Ordinance, 1979 to defendant No,2 requiring them to restore his permission, but without waiting for mandatory period of 60 days, Defendant No, 1 filed a suit (Suit No,888 of 1988) for declaration and injunction in the Court of VIth Senior Civil Judge, Karachi(East) against Defendant No,2 for restraining them from cancellation of permission granted earlier. Alongwith the suit the defendant No,1 also filed an application for interim injunction.The Civil Judge initially granted ad interim injunction as prayed and later confirmed the same. The plaintiffs and some other persons on coming to know of this, applied to be made parties, but their application was rejected with the observation that they were at liberty to file separate suit against Defendant No,l.
3. Hence this suit alleging that this 9 storeyed building will not only create a public nuisance specially in the absence of supporting basic infrastructure, but will also result in overpopulation, disturbing the calm and peaceful atmosphere of the area and inconvenience to them and consequent injunction.
4. ' M/s. Shaista Estate (Pvt.) Ltd. Filed a Writ Petition No,D-248/1985 which was granted by this Court.
5. Two appeals are pending in Supreme Court (Appeals Nos.8-K and 9-K of 1987) filed by plaintiffs and others challenging the said decision.
6. ' An application for interim injunction was also filed in this suit by the plaintiffs. On 4-8-1938 status quo order was passed by the Court whereon defendant No,1 undertook not to raise constrtuction beyond hollow plinth ground floors plus two floors in accordance with the approved plan on 15-3- 1988.
3. Defendant No,1 has contested the suit and has filed a written statement wherein preliminary legal objections as to the maintainability of the suit, its being barred under Specific Relief Act, non- joinder of K.DA. And pleas of estoppel, waiver and acquiescence have been raised. It was admitted that Defendant No,1 had obtained permission for construction of hollow plinth ground floor plus seven-storeyed building and not of nine-storeyed building from Defendant No,2 and that when on the notice of the Advocate, Defendant No,2 withdrew the said permission, Defendant No,1 filed Suit No,888/1988. It was denied that the said hollow plinth ground floor plus seven-storeyed building was going to cause any nuisance to the Plaintiffs or other residents of the locality or was likely to result in overpopulation, inconvenience etc.
4. Defendant No,2 have also filed a written-statement wherein they have admitted that they had first approved a multistoreyed building plan of Defendant No,1 and on protest being made against it, reduced it to two-storeyed building plan. It was additionally pleaded that according to Building and Town Planning Regulations, Defendant No,1 could get approval for a residential building consisting of hollow plinth and ground plus two floors, but Defenant No,1 managed to get approval for hollow plinth and ground plus five floors on 15-3-1988. Not only that, but thereafter he managed an approval for two additional floors i.e, 6th and 7th floors on 26-5-1988. It was submitted that no injunction can be granted in respect of anticipated, apprehended, speculative and intangible fear.
7. ' On the pleadings of the parties following issues were framed :-"(1) Whether the suit is misconceived and not maintainable?
(2) Whether the reliefs claimed are barred under the Specific Relief Act?
(3) Whether the suit is bad for non-joinder of K.DA. As defendant?
(4) Whether the suit is barred under the principles of estoppel; waiver and acquiescence?
(5) Whether the proposed construction of defendant No,1 on their property G-19, Block 5, K.DA.
8. Scheme No,5, Clifton Karachi will constitute a public nuisance for the reasons stated in the plaint?
(6) Whether the defendant is liable to be restrained from raising construction of their property in accordance with the approval dated 15-3-1988 and 26-5-1988.
(7) What is the effect of Annexures 'X' and `X/1' to the written-statement of defendant No,2?
(8) Whether the construction of the proposed multistoreyed building will violate the privacy of the plaintiffs and other neighbours?
(9) To what relief(s), if any, is the plaintiff entitled?
(10) What should the decree be?"
9. ' The evidence in this case which was recorded by Mr. Justice (Retd.) Zahoorul Haq, who was appointed as Commissioner with the consent of the parties, consisted of oral as well as documentary evidence.
10. ' The plaintiffs produced following witnesses in support of their case :--
(1) Khalid Mukhtar Siddiqui, Deputy Controller, Buildings (Designs), Karachi Building Control Authority.
11. ' He has stated that according to Karachi Building and Town Planning Regulations, 1979 on 'G' category plots to which the plot in question belongs, a building not exceeding 12.3 metres in height or three storeys whichever is less, can be allowed to be constructed. He admitted that as far as he was aware there was no rule and regulation about approving additional floors, after the final approval of the Building Plan. He has also admitted that while granting approval for additional floors, they had first taken into consideration the structural justification and obtaining charges for additional floors and no other factor. He further stated that till the end of 1988 no N.O.C. Was required from Electricity, Gas, Telephone, Water and Sewerage Agencies. It is thereafter that N.O.Cs.
12. From these agencies have become obligatory. In his cross-examination this witness has admitted that there are number of highrise buildings on the main Clifton Road which are between Clifton Bridge and Naher-e-Khayyam. He stated that it was the Director General, who at that time was Mr. Z. A. Nizami, who used to grant permission for additional floors. Minor deviations in the completed plan are approved after notice is given to the public and no objection is received from them. Right of easement was of no concern to the authorities.
(2) Naveed Hussain, an expert Architect.
13. ' He has stated that Clifton was designed as a medium density area allowing buildings with ground plus two floors. He has stated that the projected building is likely to produce shortage of water supply, electricity and traffic problems in the locality. It would place greater burden on the sewerage. If such highrise buildings are constructed in the area, its infrastructure cannot take that load. The soil of Clifton is not suitable for highrise buildings. Two buildings Angel Apartment and Memar have collapsed. In his cross-examination he admitted that there were hundred flats in Summer Palace and that in fifth Plan of Karachi Bulk Water Supply 100 millions gallon per day would be increased, but it would be effective only in 1993.
(3) Ejaz Ahmed, Deputy Controller, Buildings, Zone-11, K.B.CA.
14. ' He has seen the brochure of Defendant No,1 and stated that the typical floor plan thereof is not according to the approved plan. The building in question is situated in residential area and the plots around it are almost all residential. He admitted that on 'G' type plots ground plus three floors are permissible with maximum height of 128 metres. He also admitted that sometime back 'G' type plots could be converted into commercial plots, but it was not being done for the last seven years.
15. He also admitted that there were buildings on both sides of the main Clifton Road starting from Clifton Bridge.
(4) Naveed Zafar. Deputy Director, Environment in the Master Plan and Environment control Department.
16. ' He has stated that the effect of series of high-rise buildings is sthat there is air pollution, traffic problems, noise, water, sewerage and electricity problems resulting in adverse effect on health and character of the residents.
(5) Plaintiff Abdur-Razaq.
17. ' He has stated that the had moved into the present house in 1965. Clifton was then regarded as a posh area and all service facilities were available. It was the most secure part of Karachi. After 1965 there was increase in traffic and crimes and deterioration in water supply, sewerage and other services. Highrise buildings also adversely affected privacy.
(6) Iqbal Hyder, a resident of the locality.
(7) Zahid Adamji, and
(8) Muhammad Hussain.
18. ' On behalf of Defendant the following witnesses have been examined:-
(1) Sardar Ikramullah of Southern Gas Co.
19. ' He was examined and he has produced the No Objection Certificate.
(2) Ex.DW-2/1.
20. ' This is a Certificate by K.DA. That there is water and sewerage facility available in Block-5 for construction of Plot No,G-19.
(3) Muhammad Hafeezullah of K.DA.
21. ' He has produced resolution of the Governing Body permitting construction of hollow plinth. He stated that additional floors have to be sanctioned in accordance with Town Planning Regulations, 1979. In case of any difficulty the matter may be referred to Director General.
(4) Nandoo Ganesh, Sub-Engineer, Karachi Water and Sewerage Board.
22. ' He stated that there is adequate water supply in Clifton area. He admitted that there were a number of complaints.
(5) Abdul Majeed Khatti, Executive Engineer, K.E.S.C.
23. ' He stated that electric supply in the Clifton area is enough and will still increase in future. He stated that they estimate the power requirement by highrise buildings and make assessment on the basis of their own formula.
(6) Syed Shahnawaz Shah, Executive Engineer, Planning Department, K.E.S.C.
24. ' He has stated that Grid Station in the Clifton has already been sanctioned and the work has been allotted for construction.
25. ' My findings on these issues with reasons therefor are as under:--ISSUES NOS.1 and 2.
26. ' The prayer in the plaint reads as under :- "The plaintiffs, therefore, pray for declaration:
(a) That the Defendants are not entitled to commercialise the plot in the Clifton Area as it would create a public nuisance; especially in the absence of supporting basic infra-structure, overpopulation and shattering of the calm and peaceful atmosphere of the area known as Kehkashan K.DA. Scheme No,5 as stated in para. 16 above;
(b) Permanent injunction restraining Defendants from erecting a multi-storeyed building which would create overpopulation, a public nuisance and shattering of calm and peaceful atmosphere as stated in para. 16 above;
(c) Any other relief this Honourable Court deems fit."
27. Prayer (a) seeks a negative declaration to the effect that Defendant No,1 is not entitled to commercialise the plot in question. The defendant's written statement and the entire evidence on record clearly establishes that Defandant No,1 neither applied for commercialisation of the said Plot No,G-19, Block-5, K.DA. Scheme No,5, Clifton, nor was any permission for commercialisation granted by Defendant No,2 or by the K.DA. In any event the declaration sought in prayer (a) is not in respect of the status or character of the Plaintiffs and therefore, no such declaration can be granted under section 42 of the Specific Relief Act.
28. ' Mr. Liaquat Merchant, learned counsel for Defendant No,1 gave an undertaking that Defendant No,1 would not apply for commercialisation of this plot. Hence I hold that the prayer in clause (a) is not available to the Plaintiffs, but this fording is made subject to the undertaking given by Mr. Liaquat Merchant.
29. ' Regarding'the relief sought in clause (b) of the prayer, it was contended by Mr. Liaquat Merchant, learned counsel for Defendant No,1 that it was in respect of an apprehended or anticipated public nuisance which, according to the Plaintiff, will be caused when the multistoreyed building of Defendant No,1 is constructed. He relied upon sub-section (g) of section 56 of Specific Relief Act and cited the following:-
(1) (1957) 1 All E R 894 CA. (Attorney Gen. v. PIA Quarries Ltd.).
(2) (1954) 2 All E.R. 561 (Soutport Corpn. v. Esso Petroleum Co.).
(3) (1871) L.R. 11 Eq. 338 (Harrison v. Good).
(4) (1752) (1752 I Dick 163) (Fish Monger's Co. v. East India Co.).
(5) (1975) Ch. 43 (Hooper v. Rogers).
30. ' It was next contended that the Plaintiffs have no justiciable right regarding the grant and approval of the building plans to defendant No,1 by Defendant No,2 and therefore, their case before this Court is limited only to their grievance regarding nuisance. Since the nuisance was only an apprehended one, therefore, even the prayer contained in clause (b) was not maintainable. I do not agree with this contention of the Defendant's counsel. Nelson in the book on Law of Injunctions (Second Edition) at page 394 has stated "to justify an injunction restraining a threatened nuisance it must appear; (1) that the thing feared is really 'threatened', i.e,, 'there must be such a great probability, that, in the view of ordinary men, using ordinary sense, the injury would follow,' and (ii) that if it takes place it must be 'reasonably clear' that it will constitute a nuisance." The construction of nine-storeyed building or as the Defendants have shown, a seven storeyed building with a hollow plinth ground floor in a calm, quiet and posh locality like Clifton, where up to now, highrise buildings exceeding ground plus 2, or more were rarely allowed, would in view of a man of ordinary prudence is certain to cause injury and would create a nuisance to the residents of the locality, particularly to the residents of those houses which are in the East and North of such a building, as it would block the wind direction in the summer season and the sunlight in the winter and is likely to cause nuisance on the face of it. Similar view was taken by me in the case of Yaqoob Ahmad and 4 others v. Messrs Jason Construction (Pvt.) Ltd. Reported in 1989 CLC 739, where interim injunction was granted by me in that case and it was observed as follows:- "Admittedly the Plaintiffs building is to the North of the defendants' building and immediately next to it and therefore such a huge edifice in the South of plaintiffs building is bound to obstruct the sun in winter season and the breeze in summer season when these are most essential and there is also an imminent danger of its collapse on plaintiffs building. No doubt the plaintiffs have not specifically pleaded that their easement of light and air has been interfered with but by their contention that the above construction has caused grave harm, insecurity and irreparable loss to the life and property of the plaintiffs, such a situation can be inferred and is sufficient to make out a case of injury and damage which is not likely to be remedied."
31. ' My learned brother Saleem Akhtar, J. In the case of Hawa Bai v. Haji Ahmed reported in 1987 CLC 558, held that construction violating easement rights of light, air and privacy of plaintiff intended to be raised by the Defendant without approval of plan by a Building Control Authority and without consent of Plaintiff could not be allowed, even on the undertaking offered by the Defendant to the effect that in case proposed construction violate the easement rights of Plaintiff, same would be demolished by the Defendants on his own cost. In the recent case of Suleman Mala v. Karachi Building Control Authority and 3 others reported in 1990 CLC 448, a Division Bench of this Court relying upon the above two decisions as well as the decisions of this Court in some previous cases held as follows :-- "When constructions are raised without an approved Building Plan or in derogation of a plan, where approved, or in transgression of rights, interests or easements such as those of privacy or light or air, these all are remediable and enforcible matters though in different degrees and in different modes. The concept of burden of proof is also somewhat differently applicable in these matters.
32. Thus, is relation to constructions involving lack of approved plans or transgressions of such plans or violations of the law, rules, or regulations, issues are simple enough, as the same can be determined without involving any serious countroversies as to facts. And relief is not far to find.
33. However, in relation to absolute, as distinguished from generic rights of an easementary nature, such as of light or air or those based on customs etc. Such as of purdah or those guaranteed under the Constitution such as privacy of home, disputes may involve complicated controversies of facts, except where such rights are themselves taken due care of under the rules and regulations of the local Authority or the schemes relevant to an area.
34. ' In the latter class of cases, observance of rules or adherence to the relevant schemes would ensure such rights, as well. Remedies, therefore, would be readily available."
35. The English rulings cited by the counsel for Defendant No,1 relate to cases of uncertain fear such as fear of future water pollution, diminution of value of property, petty annoyance and form of activities that was indispensible to brokers, and would not apply in this case. I am, therefore, of the clear view that whereas no anticipatory injunction can be granted as a general rule, but it can certainly be granted in anticipation where the plaintiff is able to show that from the apprehended act, nuisance is practically certain to result.
36. I am, therefore, of the clear view that when a person constructs a building in violation of an approved plan or in complete absence thereof, it is presumed that the rules and regulations of house building and the easement rights of those possessing and owning nearby houses are likely to be disturbed. No doubt in a case where the Defendant has raised construction strictly in accordance with the approved plan, the presumption will be that the rules and regulations of building control and the easement rights of the neighbourers have been properly taken care of.
37. Even in that case the Plaintiffs can show that the rules and regulatioins have not been observed and that the easement rights of the neighbourers have been disturbed. The Courts can interfere when the construction has been raised without an approved plan or when it is in violation of an approved plan and in such a case the onus is on the Defendant to show the absence of violation and infringement. The Court can even interfere in the latter case when the construction is strictly in accordance with the approved plan, but the onus will be on the Plaintiff to show that thcre is breach of building rules and bye-laws and infringement of easement rights in such a case and the Court will have to keep in view the principles on which an authority having jurisdiction to decide the case, acts in exercise of that jurisdiction, while in the former case it is not so. Finding accordingly.
38. ' ISSUE NO.3.
39. ' This issue was not pressed by the Defendant's counsel. ISSUE NO.4.
40. ' It is contended by the Defendant's counsel that the K.DA. Governing Body's Resolutions Nos. 220 and 676 were passed in 1980 and 1981 respectively which permitted construction of multistoreyed buildings and commercialisation in Clifton Area. There were multistoreyed buildings in various blocks of Clifton especially on Main Clifton Road commencing from Clifton Bridge onwards upto the round-about opposite to the plots of the plaintiff and Defendant No,1. No objection was taken by the Plaintiff or other residents of the area to stop the construction of such multi-storeyed buildings.
41. Even the withdrawal of N.O.C. In respect of M/s. Shaista Estates was challenged by a constitutional petition which was allowed. Hence the Plaintiff's suit was barred under the principles of estoppel, waiver and acquiescence.
42. ' The contention of the Defendant's counsel has not impressed me very much. No doubt some high-rise buildings have been constructed as mentioned above, but these are not in so close proximity with the Plaintiffs plot as is the building of Defendant No,1. Apart from that these buildings are not so high as the building in dispute is. Hence finding in the negative.
43. ' ISSUE NO.5: ' It is contended by the Defendant's counsel that it is evident from paragraph 16 of the plaint that the nuisance apprehended by the Palintiffs is clearly anticipatory in nature. The allegations in the plaint are vague and general and based on mere apprehensions. There is nothing in the evidence to indicate that a high-rise building, by itself constitutes a public nuisance as alleged and the suit is, therefore, clearly premature. I do not agree with the contention of defendant's counsel. As to whether the construction of the high-rise building of Defendant No,1 will result in nuisance on account of various apprehensions and situations which the plaintiffs apprehend, anticipate and fear, would depend on the height and size of the building, its proximity with the plaintiffs' building, the direction and soil on which it is situated and on the fact whether all precautions have been taken and formalities have been observed to prevent the occurrence of such nuisance and problems.
44. ' In any event the overpopulation, traffic hazards, bad roads, congestion, smoky and polluted environment, creation of sanitary condition, break down of essential services like electricity, gas, telephone and considerable reduction of water supply and other security problems present in overpopulated areas, are matters which are relative to the general conditions prevailing in a locality and Court has to see that the same remain within reasonable limits. The responsibility for providing roads, sanitation, essential services, utilities and security of life and liberty, is, no doubt, the responsibility of the Government, but Defendant No,1, or for that matter any other person, cannot be allowed to lightly disrupt or threaten the same. It is common knowledge that in view of the growth in population and with a view to keeping up with the pace of development, K.D.A. And defendant No,2 in consultation with the Government of Sindh decided to permit cominercialisation of certain properties and permission for raising of multistoreyed buildings for residential use and in certain cases commercialisation of the ground floor and residential use of upper floors. Such buildings have been raised for the past over eight years in Clifton and other areas pursuant to the approval of plans and permission by K.D.A. And Defendant No,2. It is also an admitted position that the population of Pakistan and Karachi is increasing regularly, and there is a general influx in the city of Karachi. Therefore, provision for residence of persons, who cannot afford to stay in bungalows on plot of lands from 500 sq. Yds. Onwards, has to be made. The lower and middle income group can only stay in flats and it is illegal, unlawful and against the Constitution and Fundamental Rights to deprive citizens of Pakistan from staying in Clifton area on the alleged apprehension that an increase in the population of Clifton Area by persons living in flats/multistoreyed buildings will result in air and noise pollution and breakdown of essential services and utilities, so far as the same remains within reasonable limits and does not come into conflict with the easement rights of any person. N.O.Cs. From utility and public service agencies such as K.E.S.C., Water and Sewerage Board and Southern Gas Co. Have been obtained by Defendant No,1 which establishes that relevant facilities are available or will be made available to the building of Defendant No,1 on the plot in question and the evidence discloses that there will be no unreasonable shortage or disruption in the supply of electricity, water or gas to other occupants of the area, if the building of defendant No,1 is constructed and occupied. The maintenance and widening of roads to meet the increase in population and consequent vehicular traffic is the responsibility of the Government and K.DA. Pollution caused by smoke emitted from motor vehicles is a universal problem all over the world and Karachi is no exception. However, Karachi being a sea port and on account of the presence of ozone, particularly near Clifton, the level of pollution of air is much less than other places and strong winds in Karachi also help to clear the pollution. The Plaintiffs have not proved or established the case of absolute nuisance. Their allegations are merely based on apprehension and anticipated problems which do not exist at present and may not arise to an unreasonable extent as growth and development go hand in hand. The Court has to see that the construction of a building does not exceed reasonable limits. If it exceeds reasonable limits, it is likely to cause the various problems mentioned above resulting in public as well as private nuisance. Finding accordingly.
45. ' ISSUE NO.6: ' The Defendant's Plot No,G-19, though immediately next to, but is several hundred feet away from the Plaintiff's Plots Nos.G-5 and G-10 and there exists a 240 ft. Wide road between the two plots in addition to service roads on both sides. The Plaintiff's property is situated in Block-9, while the defendant's property is in Block-5. There are other multistoreyed buildings in Block-9 where the Plaintiffs reside. Hence if the Defendant's building remains within reasonable height and size and' strictly in accordance with the rules and regulations, it cannot give a cause of action to the Plaintiffs.
46. ' It is an admitted position that the building plans of defendant No,1 were approved and passed by defendant No,2. It is also an admitted position that the withdrawal/cancellation of the said plans was pursuant to the notice dated 18-6-1988 addressed to Defendant No,2. The order of cancellation/withdrawal dated 18-6-1988 was passed by Defendant No,2 on the same date as the notice itself. The order was passed without a show cause or opportunity of hearing given to Defendant No,1 and has been suspended/stayed by the VI Senior Civil Judge vide his order dated 7-7-1988 which holds the field as it has not been set aside in appeal and a Constitutional Petition filed against the said order was dismissed by this Court.
47. ' It is also an admitted position that the Plaintiffs have no justiciable right with regard to the grant of approval of building plans and his cause of action is against the creation of nuisance and infringement of his rights of easement, so long as he does not prove that the approval is illegal and ultra-vires. The issue with regard to approval of building plans is, no doubt, a matter between Defendant No,1 and Defendant No,2. Moreover the order of the VIth Senior Civil Judge dated 7-7- 1988 is final and holds the field and the order of defendant No,2 dated 18-6-1988 stands stayed/suspended and the Defendant No,2 has been restrained from interfering, preventing and/or obstructing the construction of Defendant No,1 pursuant to the approved building plans.
48. ' Even otherwise in law, the Defendant No,1 is not liable to be restrained from carrying on with their construction under the relevant approval dated 15-3-1988 and 26-5-1988 so long as it is not stayed/suspended by an order of a Court of law. In this connection it is further pointed out that the Defendant No,1 having acted upon the approval of building plans acquired a legally vested right and such vested right cannot be taken away in an arbitrary manner.
49. ' ISSUE NO.7: ' Defendant No, 2 has filed, with his written-statement, a letter dated 23-6-1988 from Government of Sindh to Director General, K.DA. With regard to formation of a Committee for clearance of high-rise building projects. This letter has no application to the plans of defendant No,1 as the same were approved much before this Committee came into existence. In any event all relevant approvals/N.O.Cs. From public utility agencies were obtained by defendant No,1. The other letter dated 11-8-1988 from the Government of Sindh to the Director General, K.DA. Advising the latter to withhold all N.O.Cs./sanctions etc. Has also no application as the approvals/sanctions in respect of the construction of defendant No,1 on the said plot were granted much earlier. Past and closed transcations which have been acted upon cannot be suspended, withheld or withdrawn in law.
50. ' ISSSUE NO.8: It is evident from the evidence on record that no case of violation of privacy of the plaintiff or any other person has been established. In any event the construction on the said plot of defendant No,1 is more than 300 ft. Away from the property of the plaintiff and that there exists 240 ft. Dual carriage road plus two service roads between the two properties. There is nothing on record to indicate that the first two plans approved by Defendant No,2 for construction of the multistoreyed hollow plinth ground floor plus five storeys building of Defendant No, 1 unreasonably infringe on the privacy of the adjoining residents/occupants/neighbours. In any event the matter of privacy in the fast developing city of Karachi and the social environment in Clifton area is nonexistent. Reliance was placed on the judgment reported in famous case of Fazl-eRaziq (PLD 1980 SC 193) and the decisions of this Court, which followed the above decision, in the cases of Muhammad Munir v.
51. Ahmad All Memon (PLD 1982 Kar. 425), Moosa Bhunji v. Hashwani S & S. Ltd. (PLD 1982 Kar. 940) and R.G. Sehwani Co-op. Housing Society v. Haji Ahmad (PLD 1983 Kar. 11) and it was contended and rightly so, that the Plaintiffs evidence had not fulfilled the test laid down by the Supreme Court.
52. Finding accordingly.
53. ' ISSUES NOS. 9 and 10: I am, therefore, of the considered view that whereas Defendant No,1's structure of hollow plinth ground floor plus five storeys is in order and does not call for any interference, the additional two floors i.e, 6th and 7th floors specially approved by Director General, K.D.A. On 26-5-1988 are liable to be declared unlawful and violative of the public and private easements.
54. ' I, therefore, decree the Plaintiffs' suit to the extent that Defendan No,1 shall not construct beyond the hollow plinth plus five storeys, and grant such declaration and injunction. Nazir has reported about certain violations in the construction already raised by Defendant No,1. The Karachi Building Control Authority is at liberty to take suitable action against such violations. In the peculiar circumstances of this case, it is ordered that the parties shall bear their own costs.