1. ' This is an application moved by the plaintiff under Order 39, Rules 1 and 2 read with section 151, C.P.C. Wherein the plaintiff has prayed that the defendant No,3 or any person claiming through her be restrained from using as shop or occupying or letting out for commercial purposes the suit property in any manner. Briefly the plaintiff's case is that the defendant No,3 who owned residential House No,318 in Usmania Housing Society. B-Road, Nazimabad, Karachi (hereinafter referred to as the suit property) converted the same into commercial permises without getting it approved from the competent authority of K.DA. And the Karachi Building Control Authority. Subsequently however, the present defendants Nos,4 and 5 were joined as they were said to be occupants/tenants of the shops in the suit property. The claim of the plaintiff is that because of conversion of suit property into commercial the plaintiff and her family is to suffer distrubance, family privacy, security, traffic problems, nuisance and also some time law and order situation. The defendant No,3 has filed her counter-affidavit in denial of the above allegations and has submitted that no such rights of the plaintiff as claimed above are going to be violated. She has stated in her counter-affidavit that on the adjoining residential Plot 41 connected with the plaintiff's Plot No,42 there are three spacious shops which are being run in the name of (1) Al-Karam Medical and General Store, (ii) Amin Pan Shop and (iii) Maqsood Auto. It is also stated by the defendant No,3 in her counter-affidavit that there is a "Chandiwala Karkhana" on Plot No,311 and also that some shops are situated on residential Plots Nos,361 and 372. These shops are all either adjacent to the plaintiff's house or in the same vicinity.
2. ' I have heard learned counsel for the parties. Mr. Muzaffarul Haq, learned counsel for the plaintiff has urged two grounds. The first contention of the learned counsel is that right of privacy of the plaintiff is being violated while his second ground is that the conversion of the residential premises into commercial is without any permission from the competent authority and, therefore, is liable to be pulled down. As against this Mr. Abdul Fahim Khan appearing for the defendant No,3 has reiterated the stand of the defendant No,3 as given in her counter-affidavit. He has further submitted that the plaintiff has failed to show, even prima facie, the ingredients required to establish the right of privacy. It is also an admitted fact that there is an intervening broad road in between the house of the plaintiff and the suit property. The plaintiff has also not denied the fact that the other shops do exist in the vicinity. Mr. Muzaffarul Haq, learned counsel for the plaintiff in support of his contention has placed reliance on the following cases:-- (1). Mst. Sardar Begum Farouqi and 6 others v. Rashida Khatoon and 2 others (1990 CLC 83), and (2)
3. Abdul Waheed Butt v. MRs, Asma and 4 others (1989 CLC 1936).
4. ' In the above two cases the matters were taken before the D.B. Of this Court in Constitution petitions. Whereas in the present cast this is a civil suit that has been filed before this Court. In both of the above Constitution petitions the main point involved was raising of construction without lawful permission from the competent authority and, therefore, the injunction was granted restraining further construction whereas in the present case it is an admitted position that the construction had already been completed. In the above cited case of Abdul Waheed Butt v. MRs, Asma and 4 others the learned D. B. Of this Court has very specifically distinguished between the suit and the Constitution petition. It has been observed as under:-- "There seems to be a marked distinction between a right to maintain a suit and right to maintain a Constitutional petition. In the former case a plaintiff should have a legal right, whereas in the latter case a petitioner may not have personal legal right in stricto sensu, but may have some interest in the subject-matter of the writ petition."
5. ' The 3rd case referred to by the learned counsel for the plaintiff is that of Shah Muhammad v.
6. Ramzan (AIR 1921 Sindh 155) wherein a learned Division Bench of the then Sindh Chief Court has observed that local custom of privacy extending to the roof of the house would not be excluded merely because the legal custom mentioned in the illustration (b) to section 18 of the Easements Act refers to portions of a house "which are ordinarily excluded from observation." As against this Mr. Abdul Fahim Khan has placed reliance on the case of Haji Fazal-i-Raziq v. Syed Zaman Shah and others (PLD 1980 Supreme Court 193) wherein their Lordships have held as under:-- "Further, before such custom can be recognized it will be necessary to investigate whether it has the essential attributes of a custom, namely that it must he immemorial, it must be reasonable. It must have continued without interruption since its immemorial origin, and it must be certain in respect of its nature generally as well in respect of the locality where it is alleged to obtain and the person whom it is alleged to affect. It is then that the custom acquires the force of law and judicial notice can be taken of it under section 57 of the Evidence Act. It was thus that Sulaiman, CJ., in B.
7. Nihal Chand and another v. Mst. Bhagwan Dei AIR 1935 All. 1002 took judicial notice of the particular custom as it was of general prevalence and commonly recognized. A mere opinion as to the existence of a custom by the Court as being in existence and taking judicial notice of it is far from fulfilling the essential requirements of taking judicial notice of a notorious fact, namely the customary easement. Therefore, the Courts below were clearly in error in holding the right of privacy to exist when it was not specifically pleaded nor evidence was led to establish it."
8. ' This judgment of the Hon'ble Supreme Court was followed by a Division Bench of this Court in case of Naseer Ahmad v. Hafiz Muhammad Ahmed and 17 others (1984 CLC 340) wherein there Lordships were pleased to set aside the interim injunction granted by the learned Single Judge of this Court. Also in case of R.G. Sehwani Cooperative Housing Society Ltd. v. Haji Ahmad and 3 others (PLD 1983 Kar.11) a learned Single Judge of this Court had dismissed three suits which did not fulfil the test laid down in Haji Fazal-iRaziq's case, PLD 1980 SC 193. In the light of the above case-law, the facts of the present case show that there are other shops in existence in the vicinity and that there is an intervening road between the plaintiff's house and the suit property. The plaintiff in his application has nowhere mentioned the period from which the plaintiff has been enjoying the right of privacy or if any, such right existed nor the plaintiff has even asserted that such right existed in the locality. The assertions made by the plaintiff do not fulfil the ingredients to show that the right of privacy as laid down by the Hon'ble Supreme Court in case of Haji Fazal-i-Raziq existed in the present case. As regards the construction without any lawful permission, it may be observed that the two cases cited above, referred to by the learned counsel for the plaintiff do not apply to the present case as in the present case admittedly the construction had been completed and the shops are in occupation of tenants. Obviously it is for this reason that no interim relief was sought by the plaintiff against the defendants 1 and 2. For the above reasons I do not find any substance in the present application which is dismissed with costs. These observations are tentative for the purposes of this application and would not come in way of parties at the time of the final disposal of the suit.