ATA-UR-REHMAN, J.---This is an application under Order VII, Rule 11, C.P.C. Filed by defendants on the grounds that the plaintiffs have no locus standi/cause of action to file the present suit and that the suit is not maintainable under section 42 of the Specific Relief Act.
2. The plaintiffs filed this suit for declaration, permanent and mandatory injunction against the defendants on the ground that they are owners/residents of various premises situated in Park Lance Area of Block V. Karachi Development Authority Scheme No.5, Clifton, Karachi: the plot of the land bearing No.F-55, Block-V, Scheme No.5, Clifton, Karachi originally measured 2200 Sq. Yards was got bifurcated by the K.D.A. In four Plots bearing Nos.F/55, F-55/1, F-55/2 and F-55/3 each measuring 550 sq. Yds: the defendants purchased the Plots Nos.F-55 and F-55/1 and got them again amalgamated in one plot numbered as F-55 measuring 1100 sq.Yds., hereinafter referred to as the suit-property. When the original plot was bifurcated into four plots one bungalow on each plot was allowed to be constructed thereon: after getting amalgamated the said plots the defendants can raise construction only one bungalow on the suit-property: the defendants Nos.2 and 3 in contravention of Rules and Regulations are raising construction of three bungalows on the suit-property; they have also not left the required compulsory open space and exceeded the covered area; ythe defendants- contrary to the regulations raised the height of the rooms of the 1st floor at 12 ft". The aforesaid acts of the defendants are likely to cause shortage to the plaintiffs properties water, sewerage and the electricity which has been provided only for 'F' type of the plots.
The authorities failed to take any action against the defendants in spite of repeated complaints by the plaintiffs. The plaintiffs, therefore, prayed for:--
(a) a declaration that the defendants are entitled to construct only one bungalow on one-third area of the Plot of land bearing No.F-55, Block V, Kehkashan, Clifton, Karachi, and are liable to leave compulsory open spaces of 10 ft. On each side and 5 ft. On the back side of the said plot of land;
(b) For a permanent injunction restraining the defendants their servants, agents, employees, from carrying on illegal construction contrary to the approved plan and the Zoning Regulations and construction Bye--laws on the Plot of land being F-55, Block-V, Kehkashan, Clifton, Karachi:
(c) For a mandatory injunction directing the demolition of the illegally constructed area on the abovesaid plot of land at the coss of the defendants.
3. The contentions raised by the counsel for the defendants are that the plaintiffs in the plaint have not claimed any right to the property or legal character: plaintiffs have only alleged violations of law by defendants; the plaintiffs have prayed for negative declarations; reliefs claimed by the plaintiffs cannot be granted under section 42 of the Specific Relief Act which is exhaustive. He relied upon the cases of Sheoparsan Singh v. Ramandan Prasad Singh (AIR 1916 PC 78), Mrs. Zarina Gauhar v. Province of Sindh and 3 others (PLD 1973 Notes 1), Shafqatullah Qadri v. University of Karachi (PLD 1954 Sindh 107-116), Al-Haj Abdur Rehman Bhuiya v. The Commissioner of the Narayanganj (PLD 1959 Dacca 515), M.A. Naseer v. Chairman; Pakistan Eastern Railways (PLD 1965 SC 83-89), Alavi Sons Ltd. v. The Government of East Pakistan and others (PLD 1968 Kar. 222), M.
Farooq Khan v. Sulaman A.G. Panjwani (PLD 1977 Kar. 88), Abdul Rehman Mobashir v. Syed Amir A.I Shah and others (PLD 1978 Lah. 113), Global Production Limited v. Habib Credit and Exchange Bank Ltd. (1998 CLC 156), Muhammad Harridan Shaikh v. The Chairman Board of Secondary Education, Karachi (PLD 1998 Kar. 59). He contended that mere contravention of regulations ad. Does not entitle the plaintiffs to file suit; it is to be shown by the plaintiffs that the contravention has caused actionable loss to the plaintiffs; to support this contention he has relied upon the cases of Ghulam Sarwar Awan v. Government of Sindli (PLD 1988 Kar. 414), Moosa Bhunji v. Hashwani Sales and Services Ltd. (PLD 1982 Kar. 940), Datari Construction Co. (Pvt.) Ltd. v. A. Razzak Adamjee and others (1995 CLC 846-863), Anjum Arain, Bhera v. Abdul Rashid and others (PLD 1982 SC 308). It is contended that breach of lease, if any is a matter between the lessor and lessee and none else; he referred to case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 Supreme Court 423). To show the difference to a right to maintain the suit and writ petition, he has referred to case of Abdul Waheed Butt v. Mrs. Asma and 4 others (1989 CLC 1936) and Suleman Mala v. Karachi Building Control Authority (1990 CLC 448).
4. In reply to the arguments/contentions of the counsel for the defendants the counsel for the plaintiffs submitted that the defendants are raising construction in violation of the approved plan which fact is supported by the report of the Commissioner. He contended that by committing such violation the construction raised by the defendants shall cause water shortage and other problems like sewerage, electricity and will deprive the plaintiffs of their right of open spaces; the plaintiffs being the owners of the adjacent plots have to protect their right and interest and have locus standi to file the suit; neighbours have independent right to maintain the suit and the defendants have a corresponding legal obligation not to violate the law and the plaintiffs have a remedy in law for the enforcement of their' right under section 9, C.P.C. He submitted that while dealing with the application under Order 7, Rule 11, C.P.C. The contents of the plaint have to be seen and are-- to be taken as true; he relied upon the cases of Jewan v. Federation of Pakistan (1994 SCMR 826), Abdul Baqi v. Malik Mitha Khan and others (1990 MLD 1906) and the judgments passed in High Court Appeals Nos.45 and 46 of 1998. He further contended that the actions of the defendants have adversely affected the properties of the plaintiffs and, therefore, the plaintiffs can file a suit; according to him where there is right there is remedy. He relied upon the case of Fazlur Rehman v.
Younus A.I Gillani (1999 MLD 1565), Krishma Kali Malikj v. Babulal Shaw and others (AIR 1965 Cal. 148), Mr. Nawab Begum v. Dr.. M.A. Mahboob and 2 others (1989 CLC 2252). It is contended by him that the prayer clause not be read in isolation of the body of the plaint and the substance and not the form of the plaint which has to be looked into. He referred 1999 MLD 1565(supra) and Hasna Hena Akhtar Begum v. Dacca Improvement Trust (PLD 1969 Dacca 82). According to him even otherwise the relief can be moulded in the circumstances of the case, he referred the case of Samar Gul v.
Central Government and others (1986 Supreme Court 35). He submits that even if section 42 of the Specific Relief Act is exhaustive the suit is not barred under section 42 of the Specific Relief Act. He submits that the view taken in case PLD 1954 Sindh. 107 (supra) supports the case of plaintiffs. In this case it was held that the section 42 was exhaustive and AIR 1916 PC 78 (supra) has been relied .Upon. It is contended by him that Indian Supreme Court in the case of Ramanaraghawa Reddy v.
Seshu Reddy (AIR 1967 Supreme Court 436). Held that the view taken in AIR 1916 PC 78 (supra) was not correct as it failed to take notice of an earlier decision of the Privy Council reported in (1899) 26 IA 16 and (1913) 40 IA 182. According to him the present case does not involve the legal character and the case-law cited by the defending counsel for the plaintiff was distinguished in 1999 MLD 1565 (supra). He contended that the contentions raised by the defendants shall entail that the neighbour can file the suit for the enforcement of legal obligations and the Rule and Regulations by defendants. He contended that the cases reported in PLD 1982 Karachi 452 and 1995 CLC 846 (supra) are not applicable in view of the fact that said cases related to the final disposal of the case. He has also referred to the cases of Abdul Razzak v. Karachi Building Control Authority (PLD 1994 SC 512) and Datari Construction Company Ltd. v. A. Razzaq Adamjee (supra). He contended that the violations committed by the defendants are actionable. He further contended that the ouster of the jurisdiction has to be strictly construed and he referred to the case of Abbasia Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus (PLD 1997 SC 3). It is also contended by him that even if no declaration is granted injunction can be granted by the Court and referred to the cases of Muhammad Ilyas Hussain Cantonment Board Rawalpindi (PLD 1976 SC 785) and Shahid Mahmood v. Karachi Electric Supply Corporation (1997 CLC 1936).
5. The counsel for the defendants in reply to contention of the counsel for the plaintiffs stated that as laid down in the case of Mrs. Nawab Begum (supra) the contraventions are actionable only at the instance of those aggrieved and section 42, Specific Relief Act was held to be applicable; he submits that in that case the easement rights of the plaintiffs were affected but in this case only contravention of regulations has been alleged. He contended that in petitions like reported in 1990 CLC 448, right in strict sense is not required and the cases referred by the counsel for plaintiffs pertain to the easement rights and the action was brought by the aggrieved persons. He further contended that the case-law cited by the counsel for plaintiff are not relevant at this stage when the application under Order 7, Rule 11, C.P.C. Is being considered. He submitted that at this stage only plaint is to be looked into and relief under Order 7, C.P.C. Cannot be granted contrary to limitation laid down in cases of Smt. Thakamna Mathew v. M. Azmatullah Khan (1993 SCMR 2397) and Muhammad Nawaz Khan v. Islam Din (1991 MLD 1523).
6. The main grounds for moving the present application are that the plaintiffs have neither claimed any right to the property nor legal character and alleged violation of law and further that the negative declarations have been sought. A perusal of the plaint shows that the plaintiffs in paras.
(5), (6), (7), (8) and (9) of the plaint claimed that the constructions so raised by the defendants are in contraventions of the regulations, in that the defendants are raising three houses instead of one; the defendants covered the compulsorily open space and exceeded the covered area; the defendants in contravention to the regulations are raising the height of the rooms up to 12 ft"; the defendants by contravening the regulation will cause shortage of water, sewerage and electricity of the plaintiffs; the plaintiffs are the owners of the adjacent plots to that of the defendants.
7. The sum up of the above is that there is a legal obligation on the authorities concerned to check that the construction on each plot is raised strictly according to the plan prescribed in that particular scheme and likewise it is a legal obligation on the builder to follow those regulations. In other words it can be said that if the authority and the builder concerned are not observing the regulations they are violating the rights of the owners of the adjacent plots It may, however, be true that the right of a person so violated or inflicted by the authority or a builder may be of various nature; in some cases it will be serious and in other cases it may be very trivial in nature. It is, however, a matter of evidence to determine the quantum and magnitude of the loss to be caused to the plaintiffs, Under the Court order a Commissioner was appointed who has inspected the disputed premises and submitted the report wherein it is stated that the defendants are violating the rules and regulations.
8. In view of the above number of factual and legal controversies arise from the statements made in the plaint; such as whether the plaintiffs have vested right, rights in strictness or only interest of inferred or nature whether the defendants are under the obligation to follow the Rules and Regulations framed for the particular scheme; whether the violations thereof by the defendants are likely to cause the breach of benefits, if any, to be enjoyed by the plaintiffs; whether the violation of such nature will cause actionable loss to the plaintiff; whether the restriction of leaving the open space is for the benefit of all plot-holders/residents of the scheme; whether by raising three houses instead of one on the said property the defendants are likely to cause the shortage of water, sewerage and electricity facilities to the properties of the plaintiffs; whether the bifurcation .Of the plots by K.D.A. Is legal and proper; whether the substance of the plaint read with the prayer clause of the plaint gives rise to a cause against the defendant; whether in view of the substance of the plaint the declaration sought by the plaintiff is of negative in nature; whether the plaintiff will be disentitled to decree of permanent injunction in case he fails to seek the decree of declarations.
These questions can be adjudicated upon only after recording of the evidence of the parties.
9. The law and the findings of the Courts are to be applied on the facts of each case and not otherwise. The plaintiffs if desire and, if permitted by law I can also get the plaint amended and application of joining K.B.C.A. As party is already pending. It cannot be said that it is a "still born suit" and at this stage the plaintiff cannot be non-suited; the allegations made in the plaint require a full-fledged inquiry after recording he evidence. The defendants can also raise the same objections at the time of final adjudication of the suit.
The application is, therefore, dismissed with no order as to costs.