1. ' The above application has been filed by the plaintiffs under Order XXXIX, Rules 1 and 2, and section 151, C.P.C. For restraining defendants Nos.1, 2 and 3 (hereinafter referred to as the 'said defendants') from raising construction on their Plot No, 102, Garden East, Karachi, which is owned by the said defendants. Defendant No,4 is Controller of Building and defendant No,5 is Secretary, Board of Revenue, Government of Sindh.
2. ' The above application is resisted by the said defendants and so also defendant No,4.
3. ' The plaintiffs claim to be the owners of plot No, 99 which is adjacent to Plot No,
102. According to the plaintiffs, in terms of lease granted by defendant No,5 in respect of plots situated in Garden East, construction can be raised only on 1/4th area of the respective plots and after leaving compulsory 15' wide open space. It is alleged that the said defendants have started construction with an intention to raise multi-storeyed building and have completed the structure of ground floor up to the roof level in defiance of the aforesaid terms of the lease, the approved plan and the Karachi Building and Town Planning Regulations, 1979, in that they have raised construction within the compulsory open space. According to the plaintiffs the construction raised has deprived the plaintiffs of their easement rights of privacy, light and air and on completion of the construction, the plaintiffs will be more extensively deprived of the said easments. It is alleged that the said defendants intend to construct multi-storey building, as they have started booking flats on second third and fourth floors.. Four bed rooms of the plaintiffs' bungalow are on the North Western side of the plot and the windows in the proposed building would over look the walls of the suit plot, with the result that the Pardah observing inmates of the plaintiffs' bungalow would be compelled to stay indoors and it will not be possible for them to open the windows of their room or freely move about in the corridor of their bungalow. It is alleged that defendant No,4, despite the complaints dated 15- 7-1993, 27-7-1993 and subsequent reminders,, has failed to take any action against the said defendants.
4. ' The said defendants in their counter-affidavit have denied the allegations made in the plaint and have pleaded that the construction is being raised in accordance with the approved plan. It is averred that they are required to leave ten feet compulsory open space towards the plaintiffs' plot and not fifteen feet as alleged, as against that they have left more than ten feet. It is also denied that they intend to raise multi-storey building or that they have booked flats on second, third and fourth floors. The existence of alleged corridors in the plaintiffs' bungalow has been denied, It has been denied that the proposed construction would in any way infringe the so-called easement rights of privacy, light and air. It is urged that the construction is being raised in accordance with the approved plan and relevant rules and regulations. It is frankly disclosed by the plaintiffs that initially there were some deviations which were objected to by defendant No, 4, who took action and demolished the offending portion. They have challenged the locus standi of the plaintiffs as on forfeiture of the plot, they have ceased to be owners of the plot.
5. ' Kazi Mumtaz Iqbal, the Deputy Controller of defendant No,4 has filed counter-affidavit denying the allegations made by the plaintiffs. It is disclosed in the counter-affidavit that the plan for construction of ground plus first floor was approved on 28-6-1993. It is further disclosed that on Plot No, 101, there is building consisting of ground floor, first floor and some structure on the second floor, on the one side of the plaintiffs' plot is Plot No, 100 which consists of four storeyed building, while on the main front of the disputed plot there is also building consisting of four floors. It is stated by him that the said defendants have maintained compulsory open space of 10 feet towards the plaintiffs' plot and so also plot No, 101, the other neighbouring plot abutting the other side of the said defendants' plot. According to him the said defendants had erected RCC columns towards main road in violation of the approved plan, against which action was taken and the columns were demolished. Presently new columns have been erected within the permissible limits. It is disclosed by him that the covered area is permissible to the extent of 1/3rd of the area of the plot in terms of Administrator of Karachi's order dated 1-5-1952 and thus the said defendants have acted legally.
6. ' The plaintiffs alongwith the suit had also filed an application 'under Order XXXIX, Rule 7, C.P.C. For appointment of Commissioner for inspection of the said defendants' plot. It was allowed. Mr. Yousuf Moulvi, Advocate was appointed as Commissioner to report with regard to the state of construction and as to whether the construction was being raised in the compulsory open space and also in violation of the approved plan.
7. ' I have heard the learned counsel Mr. Amir Hani Muslim for the plaintiffs, Mr. Umer Yousuf Deda for the said defendants and Mr. Muhammad Iqbal Memon for defendant No,
4. None appeared for defendant No,5.
8. ' The learned counsel for the plaintiffs referring to the averments made in the plaint and the report of the Commissioner has contended that the said defendants have not left the compulsory open space up to 10 feet and are raising construction on the area more than 1/4th of the plot in violation of the terms of lease. It is further urged by him that the said defendants have carried out booking on second, third and fourth floors proposed to be constructed in violation of the approved plans and in case they raise such construction the plaintiffs will be deprived of their right of easements of privacy, light and air. With regard to compulsory open space it is specifically urged by him that according to the report of the learned Commissioner the said defendants have left open space of 9'41" on plaintiffs side and about 9'-2" and 9'-3" at different places on the rear side.
9. ' It was next contended by him that defendant No,4 failed to take action against the said defendants, who are not entitled to any notice under section 20-A of the Sindh Building Control Ordinance (V of 1979). It was lastly urged by him that the Court has the power to appoint Commissioner without notice to the defendants.
10. ' In support of his contention he referred to the following authorities:--
(1) 1989 CLC 739 (Yaqoob Ahmed and others v. Jason Construction (Pvt.) Ltd.
(2) 1990 CLC 628 (Saeed A. Shaikh v. Siddique)
(3) 1990 CLC 448 (Suleman Mala v. KBCA)
(4) 1992 M LD 527 (Feroza Hajiani and others v. Abdul Ra7zak and another).
(5) 1990 CLC 1842 (Wazir All and 5 others v. Hanif
(6) 1992 CLC 729 (Noor Muhammad and another v. Building Control Authority and 2 others).
(7) AIR 1953 Mad. 717 (In re. P. Moosa Kutty).
11. ' The learned counsel for the said defendants submitted that the construction is being raised in accordance with the approved plan and in case there was any deviation which could not be regularised in terms of the Building Regulations, action was taken by defendant No,4 and the offending building structure was removed. The existing structure being in accordance with the rules and regulations of the building, it is to be presumed that the right of the alleged easments of the plaintiffs will not be disturbed. It was further urged that the right of privacy, as claimed, is not available to the plaintiffs and as such the plaintiffs are not entitled to the relief of injunction prayed for.
12. ' It was urged that the plot of the plaintiffs was forfeited for having raised unauthorised construction and they have ceased to be the owners thereof. The plaintiffs having themselves violated the law relating to compulsory open space, cannot enforce the same against the said defendants, who even otherwise have not violated the rules relating to compulsory open space. It was also urged by him that even if the appointment of the Commissioner be permissible without notice, the inspection could not have been carried out without advance notice to the defendants. He relied on the following authorities:--
(1) 1984 CLC 1479 (PG Braganza v. Border Area Committee).
(2) PLD 1980 SC 193 (Fail-e-Raizique v. Zaman Shah and others).
(3) PLD 1983 Kar. 11 (R.G. Sehwani Cooperative Housing Society Ltd., v. Haji Ahmed and 3 others;
(4) 1991 M LD 1112 (Razzaque Adamjee and others v. Datari Construction and another);
(5) PLD 1993 Kar. 237 (Ardeshir Cowasjee and 4 others v. Multi Line Associates, Karachi and 2 others); and
(6) PLD 1959 Dacca 299 (Fazal Karim Khan v. Naderuzzaman and others).
13. ' Mr. Iqbal Memon, the learned counsel for defendant No,4 supported the learned counsel for the said defendants and urged that the said defendants have raised construction in accordance with the approved building plan and the Building Regulations and in so far as the construction was in violation of law, has been already demolished by the functionaries of the authority.
14. ' The learned counsel for the plaintiffs in reply referred to 1989 CLC 2173 (Akhtar Hamid Ghori and 4 others v. Saima Estate Developers and another), 1989 CLC 2252 (Mst. Nawab Begum v. Dr. DA.
15. Mahboob and 2 others).
16. ' It has been already noted above that the application for inspection was granted by the Court without notice to the defendants. The learned counsel for the plaintiffs in support of his contention that application under Order XXIV, Rule 9, C.P.C. Could be granted without notice, has relied on AIR 1953 Mad. 717 which lays down that the Court can, in appropriate cases, where issuance of notice may defeat the very purpose of such application, can order inspection without prior notice of the application to the other side. However, a distinction is to be made between grant of application without notice and inspection to be conducted by the Commissioner appointed for the purpose. If it be conceded that the Court has the powers to grant such application without prior notice to the opposite side under the given circumstances of the case, for exemple, where the very purpose of inspection may be defeated if the notice is ordered, the Commissioner appointed for the purpose of inspection of the property or local investigation, is not absolved from his duty to conduct the inspection only after notifying date and time of the inspection to the parties concerned so that they have reasonable notice. The learned Commissioner's report, therefore, is to be kept out of consideration. Even otherwise, keeping in view the pleadings of the parties, nothing is likely to turn up on consideration of the said report.
17. ' The said defendants have repeatedly asserted that they do not intend to raise any construction beyond first floor for which building plans have been approved. The plaintiffs have not placed on record any material to lend support to their allegations that the said defendants have booked flats on second, third and fourth floors. The plaintiffs' apprehensions in this regard are unwarranted.
18. The permissible covered area under the present dispensation is 1/3rd of the plot in the Garden East as per Notification dated 1-5-1952. The compulsory open space provided to be left is 10' from the boundary line. The present open space in between the plots in question belonging to the parties, is 9'-11". The aforesaid area does not include space of eight inches of the land belonging to the plaintiffs along the boundary, covered by the boundary wall. The compulsory open space, that is to be left open by the said defendants, is to be measured from the boundary line of their plot and not the boundary wall. Therefore, the land, which has been covered by the boundary wall constructed by the said defendants on their own land, is to be counted in computing the compulsory open space left by the said defendants towards the plot of the plaintiffs. The open space left on other two sides of the plot by the said defendants, cannot be said to affect the alleged rights of the plaintiffs in any manner, as nothing has been alleged specifically in the pleadings. It, therefore, cannot be said that the said defendants have violated the condition regarding compulsory open space towards plaintiffs' plot.
19. In the case of R.G. Sehwani Cooperative Housing Society Ltd., v. Haji Ahmed and 3 others (PLD 1983 Kar. 11), while interpreting section 105 of the Transfer of Property Act, it has been laid down that contravention of restrictive covenants of lease can be enforced only by the lessor and not the third parties.
20. ' In view of the above legal position the submission of the learned counsel for the plaintiffs that the said defendants be restrained from raising construction on any area beyond one-fourth of the area of the plot in question, is prima facie without any substance.
21. Reverting to main contention of the learned Advocate for the plaintiffs that the structure already raised, that is to say up to roof level, has infringed plaintiffs' right of privacy and disturbed easements of light and air and further construction will more extensively infringe the said rights, it may be observed that in so far as the so-called right of privacy is concerned, the plaint is absolutely silent as to whether such right is being claimed as prescriptive or customary right. The plaint also does not disclose the .Bare minimum requirements of founding such right, as has been laid down in Fazl-e-Razique v. Zaman Shah and others (supra). The pleadings being scant with regard to the alleged right of light and air, hi terms of the provisions of Easements Act, 1882, it cannot be said that the plaintiffs have disclosed prima facie case, existence whereof is sine qua non, for grant of interim injunction.
22. It is noted that the plaintiffs themselves have constructed multi-storey building on Plot No, 100 which is adjacent to the plot of the said defendants. In this view of the matter, they cannot prima facie as it would appear, be allowed to turn back and complain about the so-called infringement of privacy.
23. ' The case-law referred by the learned counsel for the plaintiff also does not advance his case.
24. ' In Yaqoob Ahmed and 4 others v. M/s. Jason Construction (Pvt.) Ltd. (1989 CLC 739), the defendants had got approved plans for raising 10 storeyed .Building and in violation of the above approved plan they were found to have raised 16 storeys. The plaintiffs were granted relief, of injunction as the above construction of the additional 6 storeys was irl violation of the approved plan and they were restrained from raising further or additional floors. It was also found by the Court that the projection concerns on each floor, which were constructed by the defendants, were only 34 inches away from the boundary wall between the plots of the plaintiffs and the defendant and thus the defendants were found to have encroached upon the compulsory open place which was to be left between the two plots.
25. ' In Wazir Ali and 5 others v. Hanif (1990 CLC 1842), it has been observed that a neighbour can object to the construction of the building in his neighbourhood provided he is able to establish that his right of privacy, light and air will be disturbed and infringed. The defendants having obtained permission to raise ground plus three floors, the learned Judges observed that in such circumstances it could not be inferred that the fourth floor, construction by the respondent, was not likely to infringe the appellant's right of privacy, light and air.
26. ' The case of Mst. Hawabai v. Haji .Ahmad and another (1987 CLC 558) is distinguishable from the facts of the present case as in that case the construction was admittedly being raised without the approved plan and that construction of the upper floor was being raised adjacent to the plaintiff's boundary wall without leaving any compulsory open space whatsoever.
27. ' In the case of Saeed A. Shaikh v. Siddique and another (1990 CLC 628) the cases of Yaqoob Ahmed v. Tason Construction (Pvt.) Ltd. (1989 CLC 739) and Mst. Hawabai v. Haji Ahmad and another (1987 CLC 558) were considered and distinguished inasmuch as in the said cases the construction was being raised without any approved plan and such construction was found, in the circumstances of those cases, enough for grant of injunction. It was further found that in the former case a 16 storeyed building was constructed and in the latter case a multi-storeyed building, infringing the easements of light and air of the plaintiff in violation of the approved plans. Since it is admitted position that in the present case the construction is being raised in accordance with the plans approved by the competent authorities, the rule laid down in the said authority is not applicable in the circumstances of the present case. It may further be observed that in the case of Saeed A. Shaikh (supra), it was found that the defendant had left 7/1-2 feet space between his construction and that of the plaintiff's boundary wall. The Court accordingly put the defendant to terms in ordering that no construction will be raised within 10 feet. Of the boundary wall of the plaintiff's house and it was clarified that the injunction order granted would not restrain the defendant from raising construction on the remaining portion of the premises which is not within 10 feet of the plaintiff's wall.
28. From the material on record, it is prima facie established that the plaintiffs have raised unauthorised construction on the plot on which they are residing and in respect whereof the right of privacy, light and air are being claimed. It is also established that on the adjacent plot No, 100 which is also owned by the plaintiff they have raised multi-storeyed building. The above acts of the plaintiffs have led to forfeiture of the plots by the lessor. The question arises, whether a party, guilty of violating the building construction laws, could be permitted to seek the relief under the same law which has been violated by the said party, on the basis of rights of privacy or infringement of light and air. Mr. Mian Mahboob Ahmad, Judge, Lahore High Court, now Chief Justice, in the case of Lt.- Col. (Retd.) P.G. Braganza v. Border Area Allotment Committee and another reported in 1984 CLC 1479, has rightly observed as under:-- ".............. There are established violations of law committed by the petitioner about the terms and conditions under which allotment in dispute was made to him under the Border Area Scheme.
29. There ought not to be any cajole with the proposition that any person who has been violating law cannot be allowed to succeed in the discretionary relief that can be granted to an aggrieved person by this Court in exercise of its Constitutional jurisdiction. It is a must and should always be expected of a person invoking Constitutional jurisdiction of this Court to seek relief by approaching the Court with clean hands and claim a relief only when he is himself not violating the provisions of law, especially of the law under which he is claiming the entitlement."
30. Since the injunction is a discretionary relief, the above principle is fully attracted, while considering the application for such relief.
31. ' The application under consideration is, therefore, dismissed. Order of ad interim injunction passed earlier is hereby recalled.