This is a suit for declaration and for perpetual/mandatory injunction filed in respect of Shop No,2, Plot No,16/2/2, SB-6, Parr Street, Saddar Bazar, Karachi (hereinafter referred to as the suit property) wherein plaintiff has filed an application under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A. 10792/1998) seeking temporary injunction against the defendants pending disposal of the suit. Defendant No,1 has also filed an application under Order XXXIX, Rule 4, C.P.C. (C.M.A.-11347/98) seeking vacation of the ad interim injunction granted by this Court. Since the facts and question of law are common in both these applications, I intend to dispose of the same through this common order.
2.. At the very outset, Mr. Muhammad Iqbal Memon has raised objection that the instant suit is liable to be stayed as the plaintiffs have filed an earlier suit bearing No,970 of 1998 (Karim Hussain v. Deputy Commissioner and others) in the Court of IIIrd Senior Civil Judge, Karachi. In support of his contention, he has referred to Annexures P/3 to P/5 which are copies of plaint and applications in the said suit. It was contended by Mr. Adil Baig that the present plaintiffs are different and that after filing the instant suit, he has withdrawn the earlier suit which fact, however, has not been disputed by Mr. Iqbal Memon. It was argued by Mr. Adil Baig that the question of seeking permission to file a fresh suit on the same cause of action after withdrawal of the earlier suit will not arise where the plaintiff has already filed another suit and has withdrawn the earlier one thereafter as of the instant case. He has placed reliance on the following cases:--
(1) Haji Ashfaq Ahmad Khan and others v. Custodian of Evacuee Property, Pakistan and others PLD 1966 (W.P.) Kar. 597;
(2) The Commissioner of Income-tax, N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406; and
(3) Irshad Ali v. Islamic Republic of Pakistan and 2 others 1981 CLC 111.
3. Withdrawal and adjustment of suits are provided in Order XXIII, C.P.C. In Rule 1, sub-rule (3) of Order XXIII, it is provided that where the plaintiff withdraws from a suit or abandons a part of a claim without first .Seeking leave of the Court for filing a fresh suit on the same cause of action, he shall be precluded from instituting any fresh suit in respect of the same subject-matter. In the case Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 at 350, it was held by a Full Bench of Hon'ble Supreme Court that where a subsequent suit has been filed during pendency of the earlier suit and the earlier suit has been withdrawn without permission of the 'Court to institute a fresh suit, then the subsequent suit is not effected by either Order II, Rule 2 or Order XXIII, Rule 1, C.P.C. Reference was made to the cases Ram Lal v. Upendra Datt AIR 1928 Lah. 710; Mungi Lal v. Radha Mohan AIR 1930 Lah. 599, Abdullah v. Bashiran Bibi .PLD 1981 Lah. 336 and The Commissioner of Income-tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 Supreme Court 406.
4. The rule laid down by a Division Bench of this 'Court in the case of Haji Ashfaq Ahmad Khan and others v. Custodian of Evacuee Property, Pakistan and others PLD 1966 (W.P.) Karachi 597, that the provisions of Order XXIII, rule 1, C.P.C. Would not be applicable where a subsequent suit has been filed during pendency of the earlier suit and that the earlier suit has been withdrawn with permission was upheld by a Full Bench of Hon'ble Supreme Court in the case Commissioner of Income-tax, N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406. This view was again reiterated by another Division Bench of this Court in Irshad Ali (supra).
However, this Court in the case of Dr. Akhtar Hussain v. S.M. Hanif and 2 others 1990 MLD 1652 took a different view that, under similar circumstances, provisions of Order XXIII, Rule 1, C.P.C. Will be attracted. Following the dictum laid down by the two Division Benches of this Court and by the Hon'ble Supreme Court, I overrule the objections of Mr. Iqbal Memon.
5. It is the case of the plaintiffs that they are joint owners of the suit property; that on 25-6-1998, they obtained 'repair permission' from Karachi Building Control Authority (Annexure P/1 to the plaint) and that in furtherance of the same they are making alterations in the suit property. This fact has been disputed by defendant No,1 being Building Control Authority as well as defendant No,2, Mackinon who is Manager of immediate next property. In order to resolve this controversy, on 7-1-1999, Nazir of this Court was appointed as Commissioner to inspect the site and to report about the nature and stage of the construction. Following is the relevant portion of the Nazir's report dated 4-2-1999 which is reproduced hereinafter as the defendants have placed much reliance on the same: "... ...On ground floor there is shop newly constructed having two old shutters, and inside the said shop there were fixed old almirahs having mirrors. The said shop having basement. Inside the shop fitting of old almirahs for jewellery items was found in progress. On the left side towards Shop No,1 there was stair case leading towards first floor constructed newly. The same was without plaster and protective wall. Under the staircase there was machine room. The passage of stair case was without flooring and the staircase had been newly constructed. The roof of the first floor and three R.C.C. Columns in a row had been demolished by Karachi Buildings Control Authority. The iron bars of the roof and columns were appeared. On the front side iron bars for protection wall at the height of three feet was appeared and same was not casts'. There was a projection on frontage where iron sign board of "Jewell Arcade' was fixed. On the rear side of first floor, the walls of masonry blocks were partly raised. The construction material i,e, wooden planks, crush, wooden bamboos, trolly, drum, iron winnioning net for sand and shuttering woods were lying there.
On its right side there is Plot No,18 SB-6, known as "Jehangir Kothari Building" which was old constructed building. On right side' there were old almirahs projection of Jehangir Kothari Building about 18 feet on second, third and fourth floors were appeared. At the time of inspection, no construction work was found in progress. The Nazir has already inspected the same site i,e, Plot No,16/2/SB-6, Shop No,2, in C.P. No,D- 1951/1998, on 11-1-1999 where the Deputy Controller of Buildings Mr. Zahid Naeem and Mr. Adnan Khan, Assistant Controller of Buildings of Karachi Building Control Authority, pointed out the Nazir that prior to this, on disputed shop, where one old shop on the ground floor and two upper floors were situated and its old stair-case was on the right side towards Jehangir Kothari Building, and there was gap of 18 inches between shop No,2 and Jehangir Kothari Building. Where Almirah projection are conspicuously appeared. The old photographs of subject property are available with Karachi Buildings Control Authority Record which were shown to the Nazir by Deputy Controller of Buildings at the time of inspection. The Deputy Controller of Buildings further pointed out the Nazir that the owner of Shop No,2 had sought permission for repair of shop from Karachi Building Control Authority and despite of repairing he demolished the entire old structure and newly constructed shop and its first floor without any approval of building plan. Therefore, the Karachi Buildings Control Authority has demolished the roof structure of first floor of said shop.
6. In the instant suit, the plaintiffs have filed copy of defendant No,l's letter dated 25-6-1998 Annexure P/1 with the plaint which shows that the permission was granted to them "to carry necessary repairs with minor addition and alteration in the building". However, three conditions were imposed by the Karachi Buildings Control Authority, namely, (i) such repairs work should be carried with same kind of material as originally used in the building; (ii) repair work should be carried under supervision of a licensed engineer/architect and lastly that the original shape of the building should not be disturbed except for minor addition and alteration. Other documents filed with the plaint reveals that the plaintiffs have subsequently filed a proposed building plan for ground plus three storeys and for that purpose they have deposited a sum of Rs,3,480 on 10- 104998, with the defendant Na.1/Karachi Building Control Authority which has not been approved so far, however on 16-11-1998 permission for removal of first floor was accorded to the owner of the shop vide Annexure P/10 filed with the plaint. From the pleadings and the affidavits of the parties, it appears that the old structure on the first floor was removed/demolished whereafter the plaintiff raised new construction which was subsequently demolished by the Karachi Buildings Control Authority/defendant No,l. In my considered view, such unauthorised construction raised on the 1st floor without approved plan was rightly demolished by the defendant No,1 . It was argued by Mr. Adil Mustafa Baig, Advocate, for the plaintiff that the shop in question is in its original shape and that only repairs work was done which fact is belied from the Nazir's report dated 4-2-1999. None of the parties have filed any objection to the said report, therefore, I have no reason to doubt the same. In addition to this report, parties have also filed several photographs with the respective affidavits which fully support the Nazir's report. It is settled law that no person could raise construction without first obtaining approved building plan from the Buildings Control Authority as provided under section 6(i) of the Sindh Buildings Control Ordinance, 1979. If any reference is needed see Mst. Hawa Bai v. Haji Ahmad and another 1987 CLC 558 and Wan Zamir Butt v. Karachi Metropolitan Corporation and another 1998 CLC 958.
7. It is to be noted that neither in the Sindh Buildings Control Ordinance, 1979, (hereinafter referred to as the Ordinance, 1979), nor in the Building Regulations framed thereunder the terms "Building Construction", "Repairs" and "Demolition", have been defined. However, an explanation is given under section .6 of the Ordinance, 1979 which define the term "construct" inclusive of "reconstruct" with its variation, addition and alteration. It is reproduced as follows:-- "1. (Explanation.--The word 'construct' with all its variation used in this section and hereafter shall include 'reconstruct' with all its variations and, additions, alterations.)
Keeping in view the above Explanation to section 6 of the Ordinance, 1979, and keeping in view the ordinary dictionary meaning of word "construction" as used in the scheme of Ordinance, 1979, in my considered view the term "building construction" or "reconstruction" will include all such activities which may change the nature and pattern of a building. This will include work of major repairs either to be carried out in the existing structure or after demolition of old construction. Therefore, in my tentative view the Karachi Buildings Control Authority has wrongly granted permission to carry out repairs when it was to be done after demolition of the old structure. In future, Karachi Buildings Control Authority is directed to entertain only such applications for major and material repairs which are submitted through licensed architects/engineers who should be made liable in future, for any deviation from the approved plan. I am fortified in my above view by the provision of sections 8 and 10 of the Karachi Building and Town Planning Regulations, 1979. Section 8 provides that all building works including demolition, addition, alterations or repairs in a building shall be done through a licensed architect, civil engineer, building technologist who will supervise such building work. Section 10 envisages that even demolition of a building or any structural alteration shall be done after an application on the prescribed form to execute such building works has been submitted to the Buildings Control Authority as provided under sections 9 and 12 and after its due approval. It is after such technicalities have been performed by a person whereafter permission is accorded for repairs, additions and alterations. In the 'instant case all these elements are absent. It will be advantageous to reproduce section 8(i) and section 10 of the aforesaid Regulations, 1979: ".. ...8.--(1) Every person who intends to carry out building works or to demolish a building or carry out additions, alterations or repairs in a building shall engage a licensed architect, civil engineer, building technologist to supervise the works."
"... ...10. Every person who intends--
(1) to make any addition or alteration to a building involving the removal or erection of any roof or any outer wall, or of any wall which supports the roof thereof or change the size of any existing room or passage thus affecting the light and ventilation of the building.
(2)........................................................
(3)........................................................
(4) to make any alterations in building involving--
(a) the sub-division of any room or a shop or any other part of the building so as to convert the same into two or more separate rooms or shops or parts of the building; and
(b) the conversion of any passage or space or a garrage in such building;
(5) to reconstruct any building or any portion thereof;
(6) to demolish a building. Shall submit an application to the concerned authority in writing on the prescribed form for permission to execute the works and in case where the engagement of a licensed architect, civil engineer/structural engineer/building technologist is necessary the name of licensed architect/civil engineer/structural engineer/building technologist whom he has engaged to supervise its execution. The licensed architect/civil engineer/structural engineer/building technologist shall submit to the concerned Authority an application on relevant form alongwith all the information and documents, as required under sections No,9 and 12... ..." All these facts adyersely reflect on the conduct of the plaintiffs as well as defendant No,1/K.B.C.A.
Further, the letter issued by defendant No,1 shows that it was issued to one Karim Hussain showing him to be the owner who had also filed earlier suit before the Civil Court, which was subsequently withdrawn. Nowadays, it has become practice of the builders to file different suits before different Courts in order to obtain favourable order. For this purpose, they conceal the acts of earlier suit or sometimes about the subsequent proceeding. Their acts are not limited to filing of suits but they are also filing Constitution petition during pendency of suit and vice versa. This is nothing but sheer abuse of process of law and should be prevented. In the above circumstances, I direct Additional Registrar (O.S.) to obtain from the plaintiff and from his/her counsel, a statement in writing in the matters of K.B.C.A.,. K.M.C. And K.D.A., that earlier to the said suit, no other suit or any petition was filed and if filed then what is its status. Such statement to be placed before the Judge dealing with these cases.
9. Instant suit has been filed by two women; one claims to be wife of Karim Hussain; the plaintiff in previous suit. From the above narrated facts it shows that the plaintiffs have not approached this Court with clean hands. They have failed to make out a prima facie case for grant of interim injunction particularly in absence of approved plan and accordingly. C.M.A. No,10792 of 1998 is dismissed while C.M.A. No,11347 of 1998 filed by K.B.C.A. Is granted. Consequently, Nazir's report is also accepted and is brought on record. However, the Karachi Buildings Control Authority is restrained for next (15) fifteen days from adopting any coercive method in order to enable the plaintiffs to approach the Appellate Court, if so advised.