ANWAR ZAHEER JAMALI, J.--- The plaintiff, a registered sub-lessee in respect of flat No. 302, third floor, in the project commonly known as "Uzma Apartment" constructed over Plot No. 6, Sheet No. 8, Civil Lines Quarter, Karachi (hereinafter referred as suit plot), has brought this suit for declaration and permanent injunction against the defendants in the representative from. The suit is accompanied with an application under Order 39, Rules 1 and 2, CPC (CMA No. 6063 of 2003) containing following prayer:- "that pending disposal of suit this Honourable Court be pleased to pass orders restraining the defendants from selling, transferring, alienating and/or creating any third party interest and disposing of the suit property i.e. Project namely "Uzma Apartment" on plot of land bearing Survey No. 6, Sheet No. 8, (Old Survey No. 28), sheet No. F-11, admeasuring about 5343.00 sq. Yards situated in Civil. Lines Quarters, Karachi or any portion thereof in any manner whatsoever and further restraining the defendants from disturbing the rights/interests of the plaintiffs in the project by raising any construction on the suit property particularly on the portion reserved for amenity purposes of residents of the Building namely "Uzma Apartment" and otherwise committing such acts as detrimental to the interest of the plaintiffs or otherwise acting in a manner prejudicial to the interest of the plaintiff."
2. On 25.10.2003, while, issuing notice of aforesaid application to the defendants, an order for maintenance of status quo was passed by this Court in respect of suit plot. The defendant No. 4 has, therefore, apart from filing counter-affidavit to CMA No. 6063 of 2003 also moved an application under Order 39, Rule 4, CPC (CMA No. 6122 of 2003) for vacating such interim order.
3. On behalf of defendant No. 2 counter-affidavit has been filed by the Deputy Controller of Buildings Saddar Town, Karachi, while no body has appeared on behalf of defendants Nos. 1 and 3 to contest the CMA No. 6063 of 2003.
4. Precisely, the case of the plaintiff is that in the year 1980 building plans for construction of two blocks of multistoried building over the suit plot was approved by defendant No. 2, under the Sindh Building Control Ordinance, 1979. The approval of building plans was, inter a/ia, based on the ratio of area of suit plot admeasuring 5343 Sq.Yds. And it contained amenities like reserved are for car parking and children park for the benefit of subleases of the flats. The defendant No. 3, the builder of "Uzman Apartment" project, in violation of such approved plans raised construction of only one block, that too in violation of the approved building plans, depriving the plaintiff and other sublessees of "Uzman Apartment" from the amenities in terms of approved building plans of the said project. The plaintiff and other residents of the project were using open space for car parking and children park but the defendants Nos. 3 and 4 inspite of protest of plaintiff and other residents started raising construction of wall on half portion of the suit plot. Subsequently, it transpired that defendant No. 3 had sold half privately subdivided suit plot to the defendant No. 4. The grievance of the plaintiff is that such illegal sub-division of the suit plot is in violation of various provisions of Karachi Town Building and Town planning Regulation 2002 and the approved building plans, thereby depriving the plaintiff and other sub-lessees of the project from various amenities on the basis of approved building plans of the project "Uzma Apartment", therefore, the plaintiff is entitled for grant of injunction restraining the defendants in terms of the prayer made in her application.
5. The defendant No. 2 in their counter-affidavit to CMA No. 6063 of 2003 have stated that the building plans for construction of two blocks of building, each consisting ground plus 7 floors, were approved by their department in respect of the suit plot admeasuring 5342 .Sq.Yds., but the owner of the suit plot raised construction of only one building in violation of approved building plans. The amenities of the project were approved on the ground floor of the building but at the time of construction same were violated and covered by unauthorized construction of flats by defendant No. 3. The defendant No. 2 further stated that sub-division of plot will not create any hurdle in any easementary rights of the plaintiff and other residents of the suit plot. Later on, on behalf of defendant No. 2, vide statement dated 24.11.2003 copy Of approved building plans alongwith letter dated 19.12.1998 and copies of four notices dated 27.1.1983, 14.2.1983, 17.12.1985 and 25.2.1986 issued by defendant No. 2 to the defendant No. 3, regarding raising of unauthorized construction in violation of approved building plans have also been placed on record.
6. The defendant No. 4 in his counter-affidavit challenged the maintainability of the suit, being barred under Order 2, Rule 2, CPC, and further asserted that, he is absolute owner, in physical possession of subdivided half portion of the suit plot measuring 2790 Sq. Yds. By virtue of registered conveyance deed dated 23.5.2000 and such mutation has also been effected in his favour in the record of rights. This half portion of the plot has separate boundary wall and separate gate for entrance. The sub-division of this plot was officially approved and new survey number 6/1 was assigned to it. However, defendant No. 4 did not dispute about the approval of building plans of the project on the basis of total are of 5343 Sq.Yds., providing for construction of two blocks of building with common amenities for car parking and children park. Besides, in his affidavit in rejoinder to application under Order 39, Rule 4 the defendant No. 4 also stated that defendant No. 3, the builder, who had booked all the flats in the project had even converted the car parking space into flats and sold the same for handsome amount to the purchasers and executed registered sub-lessees in their favour through one lftikharuddin. He further .Disclosed other facts to show that institution of present suit is an attempt of blackmailing by same persons who are now demanding Rs.10,00,000/- from him as consideration for withdrawing this suit.
7. Mr. Muhammad Anwar Tariq, Advocate for plaintiff, in his detailed arguments referred the approved building plans of the project, showing the reserved space for car parking and children's park on the basis of construction of two blocks of flats in the project. He submitted that even the defendant No. 4 has admitted in his counter-affidavit/affidavit in rejoinder about the fraudulent game played 'by the defendant No. 3 at the time of construction of this project, whereby, by raising unauthorized construction the occupants/sub-lessees of the flats have already been deprived of some of the space reserved for car parking and children's park. He referred regulations Nos. 5-2.23, 18-3.1.1 and 18-3.1/2 from the Karachi Town Building and Town Planning Regulations 2002 and urged that no space reserved in the project on the basis of approved building plans for providing facilities of car parking and children part can be utilized for any. Other purpose and that the plots earmarked for flats cannot be considered for subdivision into small plots. Learned counsel placed reliance upbn Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCM R 2883) and contended that under no circumstances even the defendants Nos. 1 and 2 can allow conversion of space for amenities provided in the project for any other purpose wh.Ile in the instant case the not result of collusive game played between the defendants Nos. 3 and 4 by sale of half portion of suit plot in favour of defendant No. 4 is that under the cover of such sale and sub-division they intend to done away with such facilities of the plaintiff and other residents of the project.
8. Conversely Mrs. Surriya Rahim contended that half portion of the plot admeasuring 2790 Sq.Yds.
Has been sub-divided and sold by defendant No. 3 to defendant No. 4 -under a registered conveyance deed with clear title and possession has also been delivered, therefore,, no exception can be taken by the plaintiff or other residents of the project on the pretext of depriving them of reserved space for car parking and children park or on any other alleged easementary rights. She further referred to the sublease executed in favour of plaintiff to show that under this deed rights conferred to her are only confined to the area at which her flat has been built, and nothing more.
9. As to the locus standi of the plaintiff with reference to the reliefs claimed in the suit, learned counsel placed reliance upon Muhammad Amin v. The State (2000 SCM R 1784), Haji Haroon Mandrah and another v. Abdul Rahim and others (2001 CLC 1312) and Din Muhammad Qureshi v.
Government of Sindh and others (2003 CLC 245) and contended that the plaintiff and other residents of the project are occupying their flats without issuance of occupancy certificate and completion certificate of the project by defendant No. 2 in favour of defendant No. 3, therefore, they have no locus standi in the matter.
10. Mrs. Surriya Rahim next contended that after rejection of plaint in the earlier Suit No. 1042 of 2003 instituted by the plaintiff, present suit is barred under Order 2, Rule 2, CPC. She also contended that Karachi Building and Town Planning Regulations, 2002, which have come into force in the year 2002, are not applicable as defendant No. 4 has purchased half sub-- divided portion of suit plot from the defendant No. 3 vide registered conveyance deed dated 23.5.2000, when same were not in force.
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8. Mrs. Zahida Naqvi, learned counsel for the defendant No. 2 in her arguments referred approved building plan of the project and contended that for each block separate .Reserved car parking space has been provided, therefore, construction of wall, sub-dividing the two blocks of the project, and sale of sub-divided suit plot to defendant No. 4 will not cause any prejudice to the occupants of the flats. She further contended that by sub-division of the project, open space between the two blocks reserved for children park admeasuring 63 x30 Sq. Yds. Will also be accordingly sub-divided.
She lastly referred four notices placed on record by defendant No. 2 to show that regarding unauthorized construction over the suit plot defendant No. 2 had taken appropriate action against defendant No. 3 in accordance with law.
12. I have carefully considered the arguments advanced by learned counsel for the parties and perused the case record as well as the case-law cited at the bar. In the instant case it is an admitted position that the building plans, containing provisions for construction of two blocks of multistoried buildings (ground + seven upper floors) with other amenities over the suit plot admeasuring 5343 Sq. Yds. Were approved by the defendant No. 2 on 19.2.1980, as per the terms contained, in the letter issued by them and subject to the specifications provided in the said approved building plans. A careful perusal of building plans reveals that there is no bifurcation of car parking space, children park or the open space with reference to each block of the building to be constructed in the-project and for the purpose of providing convenience access in both the blocks (one already constructed by defendant No. 3 and the other which is/was to be constructed on the subdivided plot now claimed by defendant No. 4) three entrance gates, each having width of 12 feet, have been provided towards the eastern, western and southern side of the suit plot. Not only this, but the scheme of water supply arrangements and sewerage facilities for the sub-lessees of both the blocks of the building in the project also seems to be common. A close look at the approved building plans further reveals that sub-division of the suit plot, as claimed by defendant No. 4, will not only disturb the area of children park provided in-between the two blocks of the buildings but will also deprive the plaintiff and other sub-lessees/residents of the block of building already constructed by defendant No. 3 from availing the facility of car parking in the half subdivided plot now claimed by the defendant No. 4 under the registered conveyance deed dated 23.5.2000. The counsel appearing in this case on behalf of defendants Nos. 2 and 4 were unable to show that irrespective of the applicability of Karachi Town Building and Town Planning Regulations, 2002, or otherwise how and on what basis plaintiff or other sub-lessees of the constructed block of building in the suit plot could be denied facility of car parking in the sub-divided portion of suit plot or even access in the area left open under the approved building plans for the common benefit of residents of the project, which is all the more significant and necessary looking to the factual position at site that, till the unauthorized construction is removed, the defendant No. 3, by raising unauthorized construction of flats on the ground floor in violation of the approved building plans has already denied the sub-lessees residing in the constructed block of the project from such space of car parking; which was otherwise reserved for this purpose. In this background of the matter filing of copies of four notices pertaining to the years 1983 to 1986 by defendant No. 2 regarding unauthorized construction raised by defendant No. 3, seems to be nothing but an eyewash. In this context learned counsel for the defendant No. 2 was unable to place anything on record to show that what further action was taken by defendant No. 2 after the service of last notice dated 23.2.1986 upon the defendant No. 3 and why unauthorized construction raised by defendant No. 3 could not be removed in last more than seventeen years.
Learned counsel for defendant No. 2 was also unable to give any plausible explanation for filing copies of building plans of the suit plot vide statement dated 24.11.2003, showing imaginary bifurcation of the suit plot. This, however, prima facie reflects collusion between defendants Nos. 2 and 4.
13. It is a matter of common experience that when project for construction of residential flats are launched by the builders, normally brochures are issued, advertisements are published in newspapers and publicity is made through electronic media to attract and convince the buyers by showing them the extra facilities which will be provided by the builders in the project for their common use, advantage and benefit, in addition to the lease hold rights of their respective flats. In such circumstances, arguments of Mrs. Surriya Rahim that the rights of plaintiff and other sub- lessees of Uzma Apartment are restricted to the extent of undivided area of their respective. Flats irrespective of such commitments seems to be on weak footing. .The other submission of the learned counsel for defendant No. 4 with reference to the provisions of Order 2, Rule 2, CPC is also without force as an order of rejection of plaint does not debar a party from filing a fresh suit on the same debar a party from filing a fresh suit on the same cause of action after removing such technical/legal objections, which had resulted in rejection of plaint in the earlier suit. Similarly, reference of three reported judgments in the context of locus standi of the plaintiff has also not force as the view taken in those cases is based on different premises. In the present suit the plaintiff being registered sub-lessee of a flat in the suit plot cannot be denied her right of seeking various reliefs against the builder/defendant No. 3 and the subsequent buyer (defendant No. 4) of a portion of the suit plot merely on the pretext that the builder has failed to obtain completion certificate and occupancy certificate from the defendant No. 2. In case such plea is entertained in the facts and circumstances of present suit, it will amount to giving premium to the defendant No. 3 of his own wrong.
14. Indeed, the defendant No. 4 is claiming title in the sub-divided half portion of the suit plot admeasuring 2790 Sq. Yds. An the basis of registered conveyance deed dated 23.5.2000, but such title of defendant No. 4 is subject to all legal obligations of defendant No. 3 in respect of suit plot reason being that a buyer cannot get a better title in the property than the one held by its seller.
15. It will be apt to mention here that for deciding the fate of an application for grant of injunction under Order 39, Rules 1 and 2, CPC, in addition to examining the question of irreparable loss and injury in case of refusal of injunction and balance of convenience the Court has to see only a prima facie case and not an indefeasible case in favour of a party seeking injunction. In the instant. Case, as discussed above, plaintiff has succeeded to make out prima facie case in her favour by showing that she and other sub-lessees residing in the constructed block of Uzma Apartment over the suit, plot will be deprived of their amenities in case at this stage the defendant No. 4 is given a free hand in respect of subdivided suit plot when the claim of the plaintiff in respect thereof is yet to be decided with reference to the reliefs claimed in the suit. Further on the basis of above discussion I find that balance of convenience is also in favour of plaintiff and she will suffer irreparable loss and injury in case of refusal of injunction.
16. For the foregoing reasons CMA No. 6063 of 2003 is allowed as prayed while CMA No. 6122 of 2003 is dismissed.
17. Before parting with this order I deem it appropriate to mention that observations made in this order are of tentative nature and subject to final adjudication at the time of final disposal of the suit. .