1. Mrs. Zahida Naqvi, Advocate requests for time to file comments but Mr. Mustafa Lakhani, Advocate opposes the request. He requests for hearing of the petition Accordingly we have taken up the matter for hearing for Katcha Peshi as well as the hearing of the C.M.A. No. 1950 of 1995. This petition has been filed for seeking the following relief:
(a) Direct the respondent No.1 to act in accordance with law in stopping the illegal and unauthorized construction of building on Plot No. L.R.4/9, Excise No.III, 6-S-40, Abigal Street, Off Nishter Road, Karach.
(b) Direct th6 respondent No.1 to demolish all the entire illegal and unauthorized construction on Plot No.1.R. 4/9, Excise No.III, 6-S-40, Abigal Street, Off Nishtar Road, Karachi.
(c) Direct the respondent No.1 to abstain from regularising/approving/ condoning the illegal and unauthorized construction of Building on Plot No.1.R.4/9, Excise No.III, 6-S-40, Abigal Street, Off Nishtar Road, Karachi, and/or abstain from allowing respondents Nos.2, 3 and 4 to raise construction to any manner beyond approved plan, if any.
(d) Award costs of this petition, and/or
(e) Grant such other relief or reliefs in view of the nature and circumstances of the case.
2. The contention of the petitioners is that they owned adjacent plot and have already raised their building, ground plus four floors while the respondents Nos.3 and 4 who are the husband and son of respondent No.2 have recently started raising unathorized and illegal construction of multistoreyed building on their said plot against the approved plan, if any, approved by the respondent No. 1.
3. The main contention raised by the learned counsel during the course of argument when this matter came up for Katcha Peshi is that the respondent No.3 has no approved plan and the construction which is being raised by them is without any lawful authority and is an illegal construction which the respondent No. l are required to demolish. On the previous date of hearing Mrs. Zahida Naqvi, Advocate for respondent No. 1, had placed on record the copy of the order passed by VIth Senior Civil Judge, South, Karachi, on 7-5-1995 in Suit No.541 of 1995. This suit was filed by one Mrs. Aisha Bai against the present respondent No. 1 wherein the said plaintiff has sought the injunction praying that the Court be pleased to restrain the present respondent No. l from demolishing any construction on the said plot and from taking any action on the notice issued by K.B.C.A. On 30th April, 1995 till the final disposal of the said suit and in view of the above prayer the VIth Senior Civil Judge, South, Karachi, passed an order as under: "Heard the plaintiff's counsel, other side filed the application for time in this circumstance, let the status quo be maintained to the extent of approved plan till next date of hearing 16-5-1995."
4. The above facts of the case show that in consequence of the notice issued by the petitioner to all the respondents, the respondent No.1 has already taken action by issuing notice on 30-4-1995 but no further action was taken by respondent No.1 because of the interim order passed in the abovesaid suit. In spite of submitting copy of this order in the present petition on 25-5-1995 in presence of the counsel for the petitioner, no action has been taken by the petitioner for getting the said order vacated. It may also be observed that in presence of said order, which is passed by a competent Court, no order can be passed in the present matter. In the said circumstances there is likelihood of creation of anomaly. It may be observed that the present petitioner, if aggrieved by the said order of the VIth Senior Civil Judge, South Karachi, could have filed an appeal as laid down in the case reported in PLD 1969 SC page 65 (H. M. Saya & Co., Karachi v. Wazir A.I Industries Ltd., Karachi and another) or to have joined as party in the said suit and could seek vacation of the said order. Even otherwise, the said order shows that the parties are directed to maintain status quo to the extent of approved plan. From this it can be safely assumed that in case there is no approved plan or if any construction is being raised contrary to the approved plan, it will be opened for the Court to take action under Order 39, Rule 2(3), C.P.C. Or under the Contempt of Courts Act against the guilty persons.