' By this order I intend to dispose of an application under Order XXXIX rules 1 and 2, C.P.C. (C.M.A.
No,$572 of 1999) wherein the plaintiffs have prayed for interim injunction in the following terms:- "To restrain the defendant jointly and/or severally and/or any person claiming through or under them from using the bungalow constructed on Plot No,43/3-F, Block-6, P.E.C.H. Society, Karachi, for the purposes of running of a school or for any other purposes except for residential purposes."
2. Facts relevant for the disposal of this application are that the plaintiffs have filed a suit for declaration and perpetual injunction stating therein that they had purchased Bungalow bearing No,43/3-E, Block-6, P.E.C.H.S., Karachi (hereinafter referred to as the said bungalow) admeasuring 2000 sq.Yds. Under a registered deed of conveyance dated 7th May 1999. The entire locality where the plaintiffs said bungalow is situated was leased out by defendant No,8 exclusively for residential purposes under identical lease in Form "B", mentioning in Clause 7 of the lease that the buildings or erections built on the leased plot shall be used for residential purposes only and shall not be diverted to other use without express consent in writing of the lessor and further for breach of this covenant the lessor shall be entitled to forfeit the lease and to resume the plot. Further case of the plaintiffs is that in the first week of August. 1999 they found a sign board of "Jaffar Public School" at the gate of the bungalow in front of their bungalow. They immediately-approached the defendant No,2 to show their concern over the use of the residential bungalow for the purpose of running a school and requested the defendant No,2 not to allow any part of his property for any use other than residential purpose as the same would be violative of express covenants relating to the use of property. The plaintiffs also served a notice dated 18-8-1999 on defendant No,2 in this regard. The plaintiffs also stated that despite all these efforts, school has started functioning in Bungalow No,43/3-F, in front of their bungalow which has created a nuisance for the plaintiffs and other residents of the area as detailed in the plaint, giving cause of action to the plaintiffs to file this suit for declaration and permanent injunction.
3. Alongwith the plaint the plaintiffs have also filed the listed application under Order XXXIX, rules 1 and 2. C.P.C. With the prayer as reproduced above. In support of this application, plaintiff No,1 has filed his own affidavit wherein he has briefly reiterated the averments made in the plaint and emphasized on the point of nuisance which is being caused to the plaintiffs due to opening of school by the defendants.
4. On notice of injunction application Mrs. Yasmeen Jaffar, the Principal of Jaffar Public School (defendant No,1) has filed her counter-affidavit wherein she has challenged the maintainability of the suit being barred by section 42 of the Specific Relief Act. She has further stated that plaintiffs' bungalow is not situated in a purely residential area as another school in front of plaintiffs' bungalow (namely Headstart-II) is already functioning. The deponent also denied that the plaintiffs are residing in Bungalow No,43/3-E, Block-6, P.E.C.H.S., Karachi. Regarding defendant No,2 she stated that Y.S. Deewan had expired on 23-4-1986 therefore, all allegations in that reference made by the plaintiffs are false. Regarding notice dated 18-9-1999 she further stated that although- that notice' was issued on behalf of eleven persons but in the suit only the plaintiffs have come forward which shows that the notice was sent with mala fide intentions. Mrs. Yasmeen Jaffar in her counter- affidavit also stated that there are about 65 schools functioning in the PECH Society area, out of which 37 schools are functioning in Block-6 of PECH Society and 25 schools in the immediate vicinity of plaintiffs' bungalow and thus the area of Block-6 PECH Society is not an exclusive residential area. She also denied the allegations of nuisance levelled by the plaintiffs due to the functioning of Jaffar Public School and gave details of the arrangements made by the school with the cooperation of CPLC for proper care and management of the area.
5. On behalf of the defendants Mrs. Hamida, the defendant No, 6 has filed her counter-affidavit wherein she has stated that she is one of the co-owners of Bungalow No,43/3-F, Block-6, P.E.C.H.S., Karachi, and in that area it is common that schools are established in residential houses. In paragraphs 5 and 6 of her affidavit she has also given the details of other schools which are established and functioning in close vicinity of the bungalow of the plaintiffs. She further stated that at the time of purchase of said bungalow already 25 schools were operating and functioning in the immediate vicinity of this bungalow and after seeing all these things, plaintiffs opted to purchase this bungalow, hence they could not urge the grievance of nuisance.
6. I have heard the arguments advanced by the parties' learned counsel.
7. Mr. K.A. Wahab, Advocate for plaintiffs summarized the relevant facts from the plaint and contended that the facts stated in the plaint have not been disputed by the defendants but they had only attempted to justify the opening of school by defendant No,1 in Bungalow No,43/3-F, Block-6, P.E.C.H.S., Karachi, on the ground that already several other schools are established and in operation in the same area. In this context, learned counsel contended that it was not for the plaintiffs but for the defendants Nos. 8 and 9 to have taken immediate action against such schools which are illegally running in residential bungalows. So far as the plaintiffs are concerned they are direct sufferers due to the opening of school by defendant No,1 in a residential bungalow opposite to their bungalow as they have been facing nuisance due to opening of this school, which should be closed immediately. He further contented that taking the best case of the defendants it could be said that two wrongs do not make one right. Mr. K.A Wahab placed reliance upon the following eases:
(1) 1992 CLC 2540.
(2) PLD 1993 Karachi 631.
(3) 1999 CLC 66.
(4) PLD 1996 Lahore 442.
(5) 1990 CLC 448.
(6) Order of this Court dated 28th May, 2001 in Suit No, 152 of 2001.
8. Mr. Kazim Hassan, Advocate for defendants Nos.2 to 7 did not dispute the facts stated by Mr. K.A.
Wahab and the nuisance which is being caused due to opening of school in residential bungalow but he referred to paragraphs Nos. 5 and 6 of the counter-affidavit of defendant No,6, Mst. Hamida, to show the details of 65 schools which are already functioning in P.E.C.H. Society the area where the defendant No,1 has opened its school. Learned counsel stressed that passing of an order of injunction in favour of plaintiffs will be thus a discriminatory order as it was the duty of the defendants Nos. 8 and 9 to have taken prompt steps for controlling this illegal activity of opening of school in residential bungalows.
9. Mr. Shoaib Ashraf, Advocate for defendant No,1 also advanced his arguments on the same lines and urged that an order of grant of injunction in favour of plaintiffs will be a discriminatory order inasmuch as there are already 25 other schools functioning in the close vicinity of the bungalow of plaintiffs but as yet no action has been taken by the plaintiffs or the defendants Nos. 8 and 9 against such educational institutions.
10. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the case record.
11. Perusal of photocopy of registered lease deed in Form 'B' executed by defendant No,8 in favour of defendants which is a standard form of lease executed by defendant No,8 in favour of its lessees of residential bungalows reveals that in clause 7 of such lease it has been specifically provided that the buildings or erections built or to be built thereon shall be used for residential purposes only and shall not be diverted to other use without the express consent in writing of the lessor and for breach of covenant the lessor shall be entitled to forfeit the lease and to resume the plot. Thus from a bare reading of this clause of lease it is obvious that use of residential bungalow for running a school therein is an act which is not only in breach of the express terms of lease document but also a patent illegality.
12. During the course of arguments even the learned counsel for defendants did not dispute this position that the bungalow of plaintiffs as well as the bungalow where the defendant No,1 is presently running its school are residential bungalows. The perusal of case record further reveals that on 18-8-1999 the plaintiffs have served a notice on defendants calling upon them not to venture for opening of school in a residential bungalow and copy of such notice was also sent to the Director-General, KDA and the Honorary Secretary, P.E.C.H.S., Karachi. From these facts at least this much is clear that the plaintiffs had been prompt in their action against the defendants. The arguments advanced by the learned counsel for defendants that there are already 65 educational institutions functioning in the residential bungalows in P.E.C.H. Society and out of these 65 schools/institutions 25 are situated in Block-6 of P.E.C.H. Society, may be relevant to show that how the concerned authorities viz. Defendants Nos. 8 and 9 and other authorities responsible to check this illegality, are unable to take prompt action against such illegal activities, but would hardly furnish any just or sufficient cause for allowing defendant No, 1 to run its school in a residential bungalow which would not only be a violation of the terms of lease covenant but also a source of nuisance for all the residents of area including the plaintiffs.
13. On 12-4-2001 while hearing the injunction application I had passed an order for joining Pakistan Employees Cooperative Housing Society and Government of Pakistan, Ministry of Works, as defendants Nos. 8 and 9 to this suit and after filing such amended plaint notices were issued to these, newly joined defendants. In response , the defendant No, 8 has filed its written statement wherein not only it has supported the case of plaintiffs but has also placed on record two public notices published in daily Dawn, dated 17th October, 2000 and 15th January, 2001 to show its efforts to stop this illegal practice. In addition to this, defendant No, 8 has also filed photocopies of two notices dated 9-8-2001 and 21-9-1999 addressed to some of the defendants in this suit, to show that at its level steps are being taken to curb the illegality of opening of schools in residential bungalows in P.E.C.H.S., Karachi. In the wake of these things, the plea of discrimination raised by the defendant No,1, to justify opening of its school in a residential bungalow is delusive and without substance. Even otherwise It is well-settled position that two wrongs do not make one right. Thus opening of any number of schools in residential bungalows will not furnish any justification for perpetuating such illegalities.
14. In the cases cited at the bar by the learned counsel for plaintiffs all the relevant aspects with reference to the effect of opening of schools in residential areas causing of nuisance by functioning of school in residential areas and the locus standi of the residents of the area, have already been discussed and examined at length and it has been consistently held that such activity cannot be allowed to perpetuate to the prejudice of the interests of residents of area who have locus standi to challenge such illegality. On the other hand learned counsel for defendants have failed to cite any provision of law or a single judgment supporting their only argument that on the pretext of discrimination, action against the defendant No,1 for grant of injunction will not be justified and illegality committed can be allowed to continue.
15. Considering all the above aspects of the case I have no hesitation to hold that in the instant suit the plaintiffs have succeeded to make out a prima facie case for grant of injunction as prayed in the listed application, balance of convenience is in their favour and they will suffer an irreparable loss and injury in case such injunction is refused. Accordingly, listed application is allowed as prayed. However, considering the fact that during the pendency of this suit on 12-4-2001 an order was passed by this Court whereby the defendant No,1 was restrained from allowing any fresh/new admissions in their school being run in Bungalow No,43/3-F, Block-6, P.E.C.H.S., Karachi, but by that time already several students must have been admitted and studying in the school of defendant No,1, and immediate closure of school may result in serious harm to their interests, defendant No,1 is allowed to continue its classes in bungalow No,43/3-F, Block-6, P.E.C.H.S., Karachi, uptil the end of this academic year or up to 30th June 2002, whereafter school in bungalow No,43/3-F, Block:6, P.E.C.H.S., Karachi shall be closed and the said bungalow shall not be used, except for residential purpose.