1. ' Through this application, the plaintiff has prayed that the suit may be decreed on the basis of admissions made by the defendants in the written statements and counter-affidavits filled in the suit.
2. ' Briefly stated the relevant facts are that the plaintiff is owner and resident of Plot No.F-22/1, Block 5, K.D.A. Scheme No.5, Clifton, Karachi. This plot is a part of big plot admeasuring 2000 square yards which has been sub-divided into four plots of 500 square yards each bearing No.F-22, F-22/I, F- 22/II and F-22/III. Adjacent to Plot F-22, on northern side there is Plot F-23, owned by defendant No.2, who had rented out the same to defendant No.1, which is a private television network operating in Karachi. The defendant No.1 has opened its office Plot No.F-23 and is using the same for commercial purposes. According to plaintiff large number of persons- who are mostly actors and actresses, participants in its talk shows and other staff visit the Plot No.F-23 (hereinafter referred to as the suit property). Succinctly stated the case of the plaintiff is that the activities at suit property are causing nuisance to the plaintiff, his family and all other residents of the locality. The suit property being a residential plot is being misused for commercial purposes without any permission for change of the land use or conversion of the residential plot into commercial plot in accordance with the law. It is further alleged that the commercial use of the residential plot is violative of the terms of the lease and has made the lives of the people living in the vicinity miserable. The plaintiff has sought the following reliefs:--
(a) Declare that the commercial activities including but not limited to running office/studio by the defendant No.1 at Plot No. F-23, Block 5, K.D.A. Scheme No.5, Clifton, Karachi, are illegal as well as violation of the terms of the lease and liable to be stopped and prohibited.
(b) Declare that the commercial activities including but not limited to running office/studio of the defendant No.1, shooting/recording activities, entertainment activities, late night parties with loud music at Plot No.F-23, blockage of traffic by parking on the street outside Plot F-23 and other neighbouring houses amount to nuisance by the defendant No.1 and interferes with the rights and interest of the plaintiff as well as other residents and are absolutely prohibited.
(c) Declare that the construction work on Plot No.F-23 in violation of the approved plan, on mandatory open space as well as on and close to the plaintiff's wall is illegal and liable to be demolished by the defendants.
(d) Grant a permanent injunction prohibiting the defendants from allowing' or using Plot No.F-23, Block 5, K.D.A. Scheme No.5, Clifton, Karachi, for any commercial activities/purposes including but not limited to use an office/studio, for recording shooting, playing of loud music or holding loud parties, blocking flow of traffic by parking vehicles on the road as well as near the plaintiff's bungalow and further prohibiting the defendant No.1 from creating/causing any nuisance in any manner whatsoever, and from disturbing the peaceful and quiet atmosphere of the neighbourhood in any manner and from carrying out any construction on the said premises in violation of law/rules approved plan/rights and interest of the plaintiff.
(e) Award appropriate sum to the plaintiff by way of damages against the defendant No. 1.
(f) Any other relief which this Honourable Court deems just and proper in the circumstances of the c4se.
(g) Grant costs of the suit."
3. ' The application under consideration has been submitted on the basis of admissions contained in the written-statement of defendant No.1, to the effect that the suit property is residential plot and the construction thereon has been approved for residential purposes and that the whole building on the suit property has been converted into commercial use as against the approved building plan for residential purpose. The defendant No.4, K.B.C.A., has also stated' in para.1 of the written statement that the complaint has been received in this behalf and is under process for initiating action under the provisions of Sindh Buildings Control Ordinance, 1979. The defendant No.3 has also admitted in their statement that the suit property is residential and must be used for residential purpose only. The defendant No.1, in their counter-affidavit to C.M.A. 1835 of 2003, (application under Order 39, rules 1 and 2, C.P.C.) had admitted that they are running a private television network in the suit property. In para.5 of their counter-affidavit, it is stated that the suit property has been taken on rent from its owner Adam Abdul Shakoor son of Abdul Shakoor from 1st March, 2002 to be used for commercial purposes only and since then the company is using it for their commercial purpose. However, they have contended that the plaintiff has never objected to the commercial use of the same., It is further averred that they have applied to the KBCA for grant of permission to use the premises for commercial purpose under section 6(3) of Sindh Buildings Control Ordinance, 1979 during the tenure of its tenancy, which is in process. It is also stated that the permission from landlord was already taken in advance for use of residential plot, for the commercial purposes.
4. ' Again the defendant No.1 in its counter-affidavit to C.M.A. 2008 of 2003 (application under section 94 read with section 151, C.P.C.) has stated that, "It is not denied that defendant No.1 is operating Private Television network/carrying on Commercial Activities from Property No.F-23. It is respectfully submitted that on 1st March, 2002, .The company acquired double storeyed bungalow constructed on Plot No.F-23, situated in Block 5, K.D.A. Scheme No.5, Clifton, Karachi measuring 2000 sq. Yds., for commercial use only, as such the company is using the aforesaid property for their commercial activities and are running Indus News, Indus Vision and Indus Music Channel, which is not at all disturbing the plaintiff or the neighbourhood."
5. ' I hawe heard the learned Advocates for the parties Mr. Khalid Jawaid,has submitted that the defendant No.1, has admitted clearly in unambiguous, unqualified and unequivocal terms that the suit property is residential one and is being used for commercial purpose, although the conversion has not been allowed so far.
6. ' He has therefore, submitted that in view of the admission made by the defendant No.1, as well as defendant No.4, K.B.C.A., the suit may be decreed as prayed.
7. ' Mr. Zayyed Khan Abbasi, learned counsel for the defendant No.1, has not denied the factual position that the suit property is a residential one and is being used for commercial purposes. The admissions contained in the counter-affidavit reproduced above, have not been rebutted. The sole contention of Mr. Zayyad Khan is that the defendant No.1, has applied for change of the land use and the application is under process.
8. ' Mr. Raja Sikandar Yasir, learned counsel for defendant No.4, has conceded that the defendant No.1, has admitted in his written statement that the suit property is residential land and is being used for commercial purposes illegally and unlawfully. He has further stated that K.B.C.A. Is intending to initiate prosecution for commercial use of Residential plot and is further, contemplating action for demolition of the unauthorized construction. However, he has not given any timeframe within which the proceedings shall be initiated and has not explained as to why the K.B.C.A. Failed to perform its duty, under the law, after the Misuse of plot and unauthorized construction came to their knowledge. At this stage, I can only observe that for the reasons best known to the K.B.C.A., they have failed to perform their duty under the law and it is for the Nazim City District Government, Karachi under whose administrative control the K.B.C.A. Is now working, to inquire into the matter and take proper action for inaction on the part of the concerned officers of K.B.C.A. Be that as it may, the fact remains that there is a clear and unambiguous admission of the fact on the part of defendants Nos.1 and 4 and consequently, the suit is decreed under Order 12, rule 6, C.P.C., in the following terms:--
(i) It is declared that all commercial activities being undertaken by the defendant No.1, during the course of running their television network at Plot F-23, Block 5, K.D.A. Scheme No.5, Clifton, Karachi are illegal and in violation of the terms of lease and consequently, they are liable to be stopped/prohibited from continuing such commercial activities.
(ii) It is declared that the illegal construction made on Plot F-23, in violation of the approved plan is liable to be demolished by defendant No.4 in accordance with the law.
(iii) The defendant No.1, is permanently prohibited and restrained from pursuing the commercial activity in connection with their TV Network from the premises bearing Plot F-23, Block 5, K.D.A.
9. Scheme No.5, Clifton, Karachi, until and unless the commercial use of the plot is allowed to them by the competent authority in accordance with law.
(iv) It is directed that the K.B.C.A. Shall process the application for commercial use of the suit property in accordance with the provisions contained in the Karachi Building and Town Planning Regulations, 2002 and with particular reference to para.18.4 thereof. It is specifically directed that notice shall be issued to the plaintiff and all other residents adjacent to the suit property before passing any order on the application for conversion of the plot.
(v) The K.B.C.A. Is directed to initiate action in accordance with the law as stated by Mr. Raja Sikapdar Yasir, and report compliance after one month from today.
10. ' The parties are left to bear their own cost.
2. In view of the judgment as above, the application has been rendered infructuous, which stands disposed of accordingly.