M/s Computer Data Systems (Pvt.) Ltd.,. the petitioner filed the present civil revision from the order dated 12.5.2003 passed by learned Addl. District Judge, Rawalpindi, whereby reversing the order of the trial Court dated 29th of February, 2003, the application of the petitioner under Order XXIX Rule 1 and 2 CPC for the grant of temporary injunction was rejected.
2. Plaintiff/petitioner instituted a suit for declaration to the effect that alternate additional revised building plan approved by the Cantonment Board Rawalpindi in respect of Property No, 55/1, Bank Road, Saddar Rawalpindi is void, unlawful and the same be cancelled and that Respondent No, 1 (Mst. Shahnaz Zafar) is having no proprietary rights over the suit property. Also declaration was sought that the plan approved by Respondent No, 2 would entail excessive harassment as it has potential and imminent danger to life, property and privacy and a source of permanent in connivance and nuisance. Further it would cause great damage to the plaintiff's machinery. A .decree for permanent injunction restraining the Respondent No, 2 from raising construction on the third and sixth floor on the suit property by any means and using a stair-case for construction purpose and a mandatory injunction directing the Respondent No, 1 from removing and pulling the structure raised on fourth floor was also sought.
3. The case set up by the plaintiff/petitioner in the suit was that he is owner in possession of two rooms on the roof of second floor of the Property No, 55/1, Bank Road, Saddar Rawalpindi, and occupying the same since 1994, he claimed tenancy since 1989 in respect of Floor No, 2 and pleaded that therein he has established. It Training Institute wherein he is extending training to more than 200 students. His Institute is known as Computer Data Center and has accreditation with NNC Education Ltd. and London Metropolitan University, U.K. The Course run by the Computer Center is a three years course. In Paragraph No, 2 of the plaint it was stated that original owner had constructed the building upto second floor after getting site-plan sanctioned from the Cantonment Board, Rawalpindi. The Respondent No, 1 is owner in said property to the extent of 320 sq. ft. whereas the entire area of the said building is more than 20,000 sq. ft. It was also averred that Respondent No, 1 is not in possession of even a single inch in the said property and there is absolutely no specific area which could be claimed by her as her ownership except 320 sq. ft.
Further it was stated in the suit that Respondent No, 1 submitted a site plan to the Respondent No, 2 describing it as an addition/alteration site plan seeking permission to raise further four floors over and above the sanctioned structure. According to the plaintiff/petitioner such sanction could not be allowed by the respondent Board because neither parking area could be increased in front of the building nor staircases could be widened to accommodate manifold visitors upto seventh floor nor alleviator could be provided in building because according to the plaintiff there was no space either inside or outside the building for the purpose. It was also stated that the additional alternation plan of 3rd to 6th floor was sanctioned by the Cantonment Board on the direction made by this Court in writ petition and that Respondent No, 1 is now making preparation to start the construction.
4. The plaintiff objected to the construction on Plot No, 55/1 beyond the second floor on the ground of serious inconvenience, permanent source of nuisance, harassment and it would cause a restrain to the plaintiff/petitioner from his lawful right and a huge damage to the expensive and sensitive machinery such as computers, software. The sanction of the building plan of additional floors was challenged oh the ground that it was against the byelaws and existing construction policy of Respondent No, 2 also against the principles of Architecture, injurious to the rights of the plaintiff/petitioner.
5. Alongwith the suit an application under Order MIX Rules 1 and 2 CPC was also filed and a temporary injunction in the following terms was sought: "In view of the abovementioned circumstances, it is therefore, moist respectfully prayed that temporary injunction be granted restraining the defendants from interfering and intermeddling into the peaceful possession and 'business and further retraining the Defendant No, 1 from raising construction on the 3rd to 6th color over the suit property by any means and using the stair case for construction purpose, be kindly granted in favour of the plaintiff. Any other relief which this Honourable Court may deem fit and proper be also granted to the plaintiff in the interest of justice."
6. Contesting the suit both the respondents filed separate written-statements and written replies to the application for temporary injunction. Respondent No, 1 raised a plea that the suit filed by the plaintiff/petitioner was barred as his earlier suit on the same cause, of action was filed and withdrawn when the stay order was declined by the trial Court. It was also contended that suit was not filed by the petitioner with honest motive and it had no cause of action and that other equally efficacious remedy against the sanction of the plan by the Cantonment Board in the form of appeal, was not. exhausted. On merit only the tenancy of plaintiff on second floor was admitted.
The respondent claimed the ownership on the basis of a sale-deed a copy whereof was appended with the written statement and it was submitted that the plan was sanctioned by the Cantonment Board in accordance with law and the construction is complete. Only the finishing work was going on. It was also contended in the written statement that plaintiff himself admitted to have purchased two rooms on the 3rd floor and he could not approbate and reprobate. Possession on the 3rd floor and above was asserted by the Respondent No, 1 and it was stated that construction on the upper floors was stopped in view of the restraining order which restarted after its vacation and the plaintiff on his failure got the property sealed again to obstruct the construction.
7. Respondent No, 2, Cantonment Board, Rawalpindi in its written statement stated that the Respondent No, had constructed 3rd and 4th floors without sanction, therefore, the Board recommended for compounding the violation on the payment of composition of Rs, 20,000/- which the lessees had paid for the regularization of 3rd and 4th floors subject to the approval of competent authority. The Cantonment Board accorded sanction of plan on 28th of January 2000.
This sanction was accorded by the Government after a lapse of at least 5 years. Further it was stated by the Board that technical staff of the Board inspected the site and observed certain deviation. Therefore, the site plan was withheld. However, the Respondent No, 1 filed Writ Petition No, 2927/2000 in the High Court, during the hearing of this writ petition learned counsel for Respondent No, 1 made a statement that no deviation shall be made during the construction at the site from the approved plan and if any deviation, is found that would be dealt with in accordance with law. In view of the statement of learned counsel for Respondent No, 1, the High Court directed the Cantonment Board to hand over the sanctioned plan to the Respondent No,
1. Cantonment Board. also admitted sanction of building plan for 5th and 6th floors vide Board Resolution No, 76 dated 14th of October, 1995. Before according sanction the Board also obtained No objection Certificate from the Military Estate Officer.
8. The learned trial Court accepted the application under Order XXXIX Rules 1 and 2 CPC filed by the plaintiff and confirmed the interim stay order granted earlier. The consideration prevailed with the learned Civil Judge to accept the application of plaintiff/petitioner was that if respondent succeed to raise construction it would dispossess the plaintiff from the premises where he is running his business and from the rooms which are owned by him, the plaintiff would suffer irreparable loss. It was also pointed out by the learned Civil Judge that one of the issues which required determination in the case was whether the foundation already raised for the construction of the building were sufficient to bear the weight of construction of 3rd, 4th and 5th stories or not and warranted a technical and expert opinion which according to the learned Judge could only be thrashed out by way of evidence.
9. Aggrieved from the grant of temporary injunction, Respondent No, 1 filed an appeal which was disposed of by the learned Addl. District Judge, Rawalpindi vide impugned order dated 12th May 2003. The appeal of Respondent No, 1 was allowed and the order of trial Court was reversed and the application of the plaintiff/petitioner was rejected. Being aggrieved from the order of the appellate Court, the plaintiff/petitioner filed the present revision petition.
10.Reasons which prevailed with the learned Addl. District Judge are given in para 10 and 11 of his judgment which were that admittedly there is a sanctioned plan existing in favour of Respondent No,
1. Secondly, the Cantonment Board had admitted that construction on 3rd and 4th floors was raised which was compounded on the payment of fee of Rs, 20,000/- by the competent authority on 28th of January, 2000 and the building plan for 5th and 6th floors was already approved by the Board vide Resolution No, 76 dated 14 of October, 1995. Thus according to the learned Addl. District Judge plaintiff/petitioner had no prima facie case. Regarding the irreparable loss and balance of convenience it was observed that the Cantonment Board had approved the plan after considering all the relevant facts. Respondent No, 1 had mortgaged property to obtain the loan for construction and obstruction in the construction is increasing his liability. As such, balance of convenience tilted in favour of Respondent No, I and if construction at this stage is further stopped it would cause irreparable loss to the Respondent No, 1.
11.Learned counsel for the petitioner assailed the order of the learned Addl. District Judge and submitted that prima facie case in the facts and circumstances as spelled out in the plaint was not properly appreciated, and the Court below perfunctory dealt with the question of irreparable loss and balance of convenience. It was argued that the plaintiff/petitioner is admittedly in occupation/possession of the second floor as a tenant and owner of two rooms on the 3rd floor, therefore, he has a right of easement. Reference was made to Sections 22, 28 and 35 of the Easement Act and it was argued that it was the basic right of the plaintiff/petitioner to enjoy his rights of possession as well as easement rights without any interruption and according to him the proposed construction by the Respondent No, 1 was violative of his rights. Next it was argued that the sanctioned plan was not properly passed as the Cantonment Board did not consider the parking facilities, existing staircases and the strength of the existing foundation so as to sustain the weight and burden of further construction above the second storey. It was argued that on the 3rd floor there were two rooms which are owned by the plaintiff/petitioner and further construction of 3rd, 4th, 5th and 6th floors would cause an irreparable loss to the plaintiff/petitioner. In support of his contentions the learned counsel referred to the case of Datari Construction Company vs. A Razak Adamjee (1995 CLC 846) Mst. Kausar Musa Jee vs. Niaz Ahmad (2000 SCM R 1823) Qamarud Din Soomro vs. Administrator Municipal Committee Ratoderao (2000 CLC 633) Multiline Associates vs. Ardeshir Cowarjee & others (1995 SC 423) Messers Continental (Pvt.) Ltd. vs. Government of Sindh through Secretary House Town Planning Department Karachi (1996 CLC 417) Abdul Razzak vs. Karachi Building Controlling Authority (PLD 1994 SC 512) Muhammad Saleem vs. Salamat Ullah (1988 CLC 2313) and Bakhtawar etc. vs. Amin etc. (1980 SCM R 89).
12.On the other hand, the learned counsel for the Respondent No, 1 contended that there was neither any material irregularity nor legal infirmity in the order passed by the learned Addl. District Judge. The revision petition was not maintainable. On merit he argued that the plaintiff/petitioner has filed and earlier suit on the same cause of action and when temporary injunction was declined he withdrew the suit. This constitute an estoppel and filing of the second suit was with mala fide intention. Referring to the sale-deed it was argued that the Respondent No, 1 is the owner through purchase and after the sanction of the plan for construction upto 6th floor, she was entitled to raise construction and that the construction on 3rd and 4th floor was complete to the extent of the structure and some finishing work in the 3rd and 4th floors was going on.
13.After hearing the parties and perusal of the record it appears that there are some facts admitted by both the parties which are as under:-- (i)Plaintiff/petitioner is a tenant on the entire second floor and is running an Information Technology Institute.
(ii)Plaintiff/petitioner is owner of two rooms on the 3rd floor. Entire ground floor is in the ownership and possession of the National Bank of Pakistan.
(iii)The Cantonment Board has sanctioned alternation plan for construction upto 6th storey.
(iv)Construction of 3rd and 4th floors was admitted by Cantonment Board and the Competent Authority accepted to regularize the same by imposing a compounded fee which was paid by the Respondent No, 1.
(v)Plaintiff/petitioner sought a mandatory injunction for demolition of the 4th floor which Prima facie shows that the construction upto 4th floor was in existence.
(vi)There is no parking space provided within the building itself and the facility of car parking is on the adjoining roads around the building.
(vii) Plaintiff/petitioner is running a Computer Institute where on his own showing about 200 students are continuing with the courses of three years duration.
14.From the existing facts it appears that neither the National Bank of Pakistan who is the owner and occupant on the basement and ground floor nor the owner of second floor under whom the plaintiff/petitioner claims tenancy thrown any challenge to the plan sanctioned by the Cantonment Board, Rawalpindi. In the written statement by the Board the sanction of the plan by the Cantonment Board vide Resolution No, 76 dated 14th of October, 1995 is admitted. It is also admitted that construction of the 3rd and 4th floors was raised by Respondent No, 1 unlawfully but it was compounded by the Cantonment Board under the orders of the Competent Authority by the i,e, Government of Pakistan.. It is also admitted that before the sanction of the plan the NOC was also issued by the Military Estate Officer. Sale-deed copy whereof was brought on the record by Respondent No, 1, prima facie shows her purchase of rights of 3rd to 6th floors from his previous owners. The building is situated on. a commercial road and the entire area around the building is also commercial. It is catering for commercial area where sufficient number of buildings upto 5th and 6th floors are in existence. In view of these facts the question is whether the plaintiff/petitioner who enjoys tenancy on second floor and claims to be the owner of two rooms on 3rd floor could seek a restraint order against the owner in respect of the other floors as regards the construction on the ground that his easement rights as well as his rights of enjoyment of the property are being jeopardized. For disposing of the interloctitory application a conclusive finding is avoided and only a tentative assessm ent is made.
15.Prima facie arguments of petitioner appear to be attractive but plaintiff merely for the reason of ownership of two rooms on the 3rd floor and enjoying an advantage of running a computer Institute on second floor as a tenant would not have a prima facie case as against owner in respect of the other floors to impose easement. Prima facie it would tantamount to abridging their rights to enjoy their properties. It appears that the plaintiff/petitioner is jealous about his own rights disregarding the rights of the others. It would be unfair to curtail the rights of other absolute owners to enjoy and improve their property merely because of the plaintiff/petitioner seeks more peaceful enjoyment of his tenancy and ownership in respect of two rooms. In multi-stories commercial buildings the rights of owners and the occupants have to be balanced and the easement rights have also to be considered in a manner that it does not put a complete restraint on the rights of others. As per showing of the plaintiff himself, as is evident from its prayer for mandatory injunction, that the construction upto 4th floor is in existence, any further preventive order would entail to deprive the Respondent No, 1 from her legitimate rights to hold, own and enjoy her property. To my mind, therefore, the petitioner has no prima facie case and it would be seen after recording of evidence whether the version of the plaintiff would bring about a firm ground for culminating into a decision in his favour.
16.From the run down of the facts it appears that Respondent No, 1 has been endeavoring for obtaining the sanction of the plan for quite some time and the plan was sanctioned vide Cantonment Board Resolution No, 76 dated 14th October 1995 but it was not delivered and when the construction was raised by Respondent No, 1 for 3rd and 4th floors, it was considered as violation and ultimately this violation was compounded by imposing a fine of Rs, 20,000/- by the competent authority vide order dated 28.1.2000. Respondent No, 1 has to seek delivery of sanctioned plan by .filing a Writ Petition No, 1878/2003 in this Court. The plaintiff/petitioner has also filed a suit which was withdrawn and thereafter filed the second suit. The property was also sealed by the Court under the provision of Section 145 of Cr.P.C. against which a writ petition was filed and decided by this Court. The chequered history of the case shows that Respondent No, 1 who prima facie appears to be owner in respect of major part of 3rd floor and 6th floor is being deprived of her right to enjoy property. The learned Addl. District Judge took note of the fact that the loan obtained by the Respondent No, 1 is multiplying. Irreparable loss means such loss which cannot be adequately remedied by award of damages and the balance of convenience means the balance of mischief or inconvenience to the parties. In the circumstances of the case, no irreparable loss would accrue to the petitioner. On the other hand, balance of convenience tilt in favour of Respondent No, 1 who is being obstructed from completing the finishing part of the construction on 3rd and 4th floor and raising any further construction on 5th and 6th floors. Therefore, I tend to agree with the reasoning of the learned Addl. District Judge.
17.In the light of the above, this civil revision has no merit and is dismissed. The order of learned Addl. District Judge is upheld. There shall be no order as to costs. I would add that opinion expressed in disposing of this civil revision shall have no bearing on the case at the trial of the suit.
The learned trial Court shall be free to decide the issue before it without being influenced by any observation made in this order.