1. ' 1 to 3. This order shall dispose of C.M.A. No,6965 of 2001 filed by the plaintiffs under Order I, rule 8, C.P.C. Read with section 151, C.P.C. For permission to sue in representative capacity by the plaintiffs, C.M.A. No,6801 of 2001 filed by the plaintiff under Order 39, rules 1 and 2, C.P.C. For grant of interim injunctions restraining defendant No,1 from carrying out any construction till disposal of the suit and C.M.A. No,8308 of 2001 filed by 25 persons as interveners to be joined as plaintiffs in the suit pursuant to the notice issued by this Court by order dated 14-9-2001. The above applications have been filed in the following background.
2. ' Defendant No,1 obtained approval for the construction of a building on Plot No,7SR-5, Serai Quarters admeasuring 5751.76 sq.Yds., for the construction of G-Loft+ 17 upper floors measuring a total built up area 341,769 sq. Ft. Which is in excess of permissible covered area equivalent to 13,300 sq. Ft. And the same is being constructed without the additional availability of water, sewerage, gas, electricity, parking and availability of municipal services e.g. Garbage collection. The people including the plaintiffs residing in the vicinity of the building, are very apprehensive that they would suffer a great inconvenience on account of the above mentioned huge 17 storied building being constructed on plot admeasuring 5751,76 sq. Yds. And covering 324,076 sq. Ft. Area, in addition to, being deprived of their privacy. The plaintiffs and the residents of the area are facing nuisance and they will suffer further as they would be deprived of their amenity which at the existing available level will be totally inadequate to meet the additional demands for the huge project. The proposed building next door will deprive the plaintiffs of their easementary rights of light, air, and their Constitutional right of privacy. Requisite clearance from Environmental Protection Authority has not been obtained. The plaintiffs and the residents of the area will be deprived not of their privacy, like right to life but in deterioration of their existing property value and will affect other Constitutional rights. The huge 17 storied building in already congested area would create considerably increased nuisance adversely affecting the existing residents and occupiers of the area beyond the limits of endurance and threshold of tolerance, which would be on account of increased traffic jams, pollution, diesel and petrol fumes, increased noise legal and total loss of peace and quiet of the area with shortage of water, electricity, gas and overflowing of sewerage. The building abuts of Grant Road and Napier Road to be 60 ft. And 100 ft. Both of which are presently heavily congested with vehicular traffic. The building itself is being constructed in violation of the approved plan contrary to section 6(1) of the Sindh Buildings Control Ordinance, 1979. The plaintiffs complained to the concerned quarters about the construction. However, they received no response. Defendant No,1 filed Suit No,994 of 2001 against the plaintiffs. On services the plaintiffs readily agreed and undertook that they have been acting according to law and will enforce their rights through due process of law. On such undertaking the suit was disposed of. The plaint has been presented in the above background with the following prayer:-- "(A) Declaration that--
(a) the building being constructed will be a source of nuisance beyond the limit of endurance and circle of tolerance-- (i)considerable noise and dust being caused on account of construction; (ii)it will deprive the plaintiffs of the available amenities as stated in para.5 above; (iii)will cause traffic Jams, great increased noise level and atmosphere pollution of diesel and petrol, fumes, and general environmental degradation; (iv)the building will deprive the plaintiff of peace and quiet and enjoyment of their flats as stated in para.8 above;
(b) that the building will deprive them of their easementary rights to light and air over the plot as stated in para.6 above;
(c) that the building is being constructed contrary to the Sindh Buildings Control Ordinance, 1979 as well as the approved plan;
(d) deprive the plaintiff of their privacy, contrary to Article 14 of the Constitution;
(e) the building will violate their Fundamental Rights granted under the construction under Articles 2A, 4, 9, 23 and 24 thereof; (B)An injunction restraining the defendant No,1 from constructing the building.
3. (C)A mandatory injunction requiring defendants Nos.2 to 6 to cancel the approved plan and withdraw their respective permission granted to defendant No,1 for purpose of constructing the high rise building and to demolish the building being constructed by defendant No,1 on the said plot.
4. (D)Damages to the tune of Rs,20,000,000 from the defendants jointly and severally for considerable noise and dust being raised during construction and great inconvenience caused thereby."
5. ' Alongwith the plaint, C.M.A. No,6965 of 2001 under Order I, rule 8, C.P.C. Was also presented with the facts that other numerous residents and occupiers of the building in the immediate vicinity who are suffering and will suffer considerable nuisance of the building and the residents are too numerous it is impracticable to join them in the suit individually. It is desirable that a notice be advertised in newspaper requiring those persons, who have same interest as plaintiffs to join as party in the proceedings in such a form as the Court may prescribe. On 14-9-2001 publication of notice in daily newspaper was ordered to be made by consent in English, Urdu and Gujrati subject to all just exceptions. Such notice was published in Dawn, Jang and Gujrati, dated 21st September, 2001. In response to the notice under Order I, rule 8, C.P.C., C.M.A. No,8308 of 2001 has been filed by 25 persons as interveners with request to join them as plaintiffs on the facts that the interveners are residents as well as connected with the area and are desirous to join the proceedings as co- plaintiffs in the above suit against the defendants for restraining them from continuing with the construction as, inter alia, the same amounts to public nuisance in addition to violation of interveners considerable right for the same reasons as mentioned in the plaint.
6. ' It may also be mentioned that the said application is not signed by interveners Nos.1, 8 and 14 whereas interveners Nos.14, 15 and 16 through C.M.As. Nos.9163 of 2001, 9162 of 2001 and 9154 of 2001 under Order I, rule 10, C.P.C. Sought deletion of their names, which were granted by order dated 6- 3-2002.
7. ' The grounds urged in support of C.M.A. No,6801 of 2001 are that the building known as "Techno City" presently under-construction is source of considerable nuisance on account of-- (a)considerable noise being created after completion, and (b)will be source of considerable nuisance and inconvenience.
8. ' The application is supported by affidavit filed by defendant No,8.
9. ' I have heard Mr. Naeemur Rehman, learned counsel for the plaintiffs and Mr. Farogh Nasim, learned counsel for the defendant.
10. ' Rule 8, Order I, C.P.C. Provides that where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiffs' expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
11. ' Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the Court to be made a party to such suit.
12. ' The underlying principle incorporated in the provisions of Order I, rule 8, C.P.C. Is to avoid fresh litigation over the same matter. Obviously Order I, rule 8 of the Code constitutes glaring exceptions to the general rule and if not strictly complied with may result in frequent departure from solitary practice of not proceedings in absence of the parties affected thereby. This rule prescribes condition upon which person even though not made a party to the suit may still be bound by the proceedings therein, which is far-reaching consequences in case the decree is passed. What is described in law as representative suit, it is necessary that the eleventh provisions must be treated as pre-emptor and mandatory. It has been held that obtaining judicial permission and compliance with the provisions of Order I, rule 8 are formal condition on which further proceedings in the suit becomes binding on persons other than the actual parties thereto. In deciding whether leave is to be granted or in considering whether suit already instituted under this rule is maintainable the principal consideration that should be weighed with Court whether it is satisfied that there is sufficient community of interest as parties, plaintiff or defendant as the case may be to justify adoption of procedure prescribed under this rule. Rule is one of convenience based upon reasons and good policy and to save trouble and expenses which would otherwise have to be incurred in such cases. The conditions for the applicability of this rule are as under:-- (i)Parties must be numerous.
13. (ii)They must have same interest in the suit.
14. (iii)Court permission under Rule must be obtained, and (iv)Notice be given to the parties whom it is proposed to represent the suit.
15. 'The dispute, however, is as to the sequence in which these conditions' have to be fulfilled. Some Courts accord permission at the very outset provided such averments and prayers are contained in the plaint itself and application to that effect has been made by the plaintiff. The other Courts are not so meticulous as to pass such orders, sometimes the plaintiff himself prefers to make an application for leave to file a suit in representative capacity. In such cases it is not uncommon to find either Court according tentative or conditional permission or thereafter issue notice to other person interested or it considers whether notices have been sent without according tentative permission expressly. In such cases the Court may sometime not pass any express order or grant permission after notice having been served personally. It is in this very circumstance that the question has arisen as to whether this kind of procedure fulfils the requirement of Order I, rule 8, C.P.C. And amounts to substantial compliance of the same or whether it involves omission which vitiates the representative character of the suit.
16. ' In Shri Ram Krishna Mission v. Paramanand and others AIR 1977 All. 421, the learned Single Bench highlighted the sequence of the procedure to be followed by the Court in such matters by stating that when a plaint contains an averment and that the plaintiffs are filing suit in a representative capacity and later an application under Order I, rule 8, C.P.C. Is made, the Court may either grant a conditional permission subject to objections being raised by the parties to whom notice is issued or may immediately issue notice even without expressly granting any such conditional permission.
17. After the service of notice either by personal delivery or public advertisement, when either objections have been filed and an application for impleadment is made or no objections are filed or no application for being impleaded is made, the Court must after disposal of such objections, if any pass the final order, granting or refusing permission. If no express order granting permission is made at any stage, whatsoever, the suit would not acquire a representative character. The proposition succinctly expressed by Amir Ali, J. In Baiju Lal Parbatia v. Gulak Lal Pathak (1897) ILR 24 Cal. 385, in connection with section 30 of old Code which corresponds to Order I, rule 8, C.P.C. Was followed. The observation was--- "The effect of section 30, therefore, to my mind is that unless such permission is obtained by the person suing or defending the suit, his action has no binding effect upon the person whom he chooses to represent."
18. ' Mr. Naeemur Rehman, learned counsel for the plaintiffs has urged that the plaint has been admitted. The notice on the application has been ordered which amounts to granting of the permission to sue to the plaintiffs in representative capacity and the suit will acquire representative character and no formal order is required. He in support of his submission referred the opinion expressed in Mukaramdas v. Chhagan Kisan AIR 1959 Born. 491 which lays down that there need not be a formal order on the record for permission to sue in a representative capacity under Order I, rule 8, C.P.C. That permission can be inferred when the plaintiffs' prayer that they should be allowed to sue in representative capacity under Order I, rule 8, C.P.C.
19. ' Mr. Farogh Nasim, learned counsel for the defendant conversely contended that mere issuance of notice will not tantamount to granting the permission to sue in representative capacity as notice was ordered subject to all just exception. He contended that the phrase "subject to all just exceptions" was interpreted in Ghulam Muhammad and another v. Irshad Ahmed and another PLD 1982 SC 282 that well-known meaning of phrase "subject to all just exceptions" is that order which contains this expression would be effective unless and until the other party would be affected by such an order takes exception to it and raises objections which are ultimately to be disposed of.
20. Thus he contended that the application is to be disposed of in the light of the objections filed in pursuance, of notice issued by this Court.
21. ' In Khukutty Kunhalis v. Pakkath Enu AIR 1965 Ker. 2001 the plaintiff file two applications for allowing them to file suit in representative capacity and for using the defendant in representative capacity, publication of notice was ordered in local newspaper soon after the suit was instituted and notice was published and when the judgment was announced there was an order passed by the Court permitting the plaintiffs to sue in a representative capacity. On the above effect, objection was taken that the provisions of Order I, rule 8, C.P.C. Have not been complied with but following the rule laid down in Muthaukaruppa v. Appavoo AIR 1943 Mad. 161 that even if permission was given after publication of notice that will not vitiate the proceedings and the objection was turned down.
22. ' Mr. Farogh Nasim, learned counsel for the defendants has also referred the opinion of Supreme Court of India in Kalyan Singh v. Chhote and others AIR 1990 SC 396 that for a representative suit the Court permission under Order I, rule 8, C.P.C. Is mandatory in absence of necessary material.
23. The conclusion one or the other as to the nature of the suit will not be justified.
24. ' I am of the view that the provisions of Order I, rule 8, C.P.C. Is mandatory. Unless permission is obtained by persons suing of defending the suit, his action has no binding effect upon the person whom he chooses to represent.
25. 'Mr. Farogh Nasim has also contended that the suit where damage has been claimed cannot be treated as representative suit, he pointed out that the plaintiffs have asked for relief of damages which could not have been agitated through a representative suit. Such question was addressed by a Full Bench of Madras High Court in Kodia Goundar and another v. Velandi Gondar and others AIR 1955 Mad.
281. Two questions were referred to the Full Bench for decision by it. Those were (1) the excitability of decree obtained in representative suit instituted under Order I, rule 8, C.P.C. Against persons who are not nominees of the party to the decree and (2) whether representative action can lie in respect of the claim for damages the later question was addressed by the Full Bench as follows:-- "to avoid numerous suits being filed for decision of a common question, Order I, rule 8 has come to be enacted. The nature of the claim whether it is a suit for a declaration of a right, or an injunction or an action for money on contract or on tort is not very material in considering whether a suit could be filed under the simplified procedure of Order I, rule 8. It is the existence of a sufficient community of interest among the persons on whose behalf or against whom the suit is instituted that should be the governing factor in deciding as to whether the procedure provided under Order I, rule 8 could properly be adapted or not."
26. ' Therefore, I am of the view that such objection is not sustainable! And the suit could have been filed with the relief of damages amongst other reliefs.
27. ' Mr. Farogh Nasim, has also objected to the maintainability of the suit on the ground that in absence of permission from the Advocate-General the plaintiffs cannot bring the cause involving "public nuisance" in terms of section 91 of C.P.C. The provisions regarding suits relating to the public nuisance contains in Chapter V of C.P.C., section 91 reads as under:-- "Suits relating to public matters.
91. Public nuisance.--- (1) In the case of public nuisance the Advocate-General, or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."
28. ' It may also be pointed out that the provisions relating to the suit in respect of public matters has been amended by the Indian Legislatures, whereby the scope of subject has been enlarged from the suit relating to "public matter" to "public nuisance" and other wrongful acts by addition in the title and the section by substituting the condition to sue.
29. ' Section 91. Public Nuisance, which now stands:- ' Public nuisances and other wrongful acts affecting the public
91. Public nuisance.--- (1) In the case of public nuisance or other wrongful act affecting or likely to affect the public, a suit for a declaration and injunction or for such other relief as may be appropriated in the circumstances of the case may be instituted-- (1)by the Advocate-General, or
(b) with the leave of the Court, by two or more persons, even though no specific damage has been caused to such person by reason of such public nuisance or other wrongful act.
30. (2)Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."
31. ' When original provisions of section 91 of C.P.C. As applicable to our Courts, are compared with provisions of section 91, C.P.C. Applicable to Indian Courts, there is noticeable departure whereby in addition to Advocate-General, two or more persons can file a suit with the leave of the Court instead of the permission from the Advocate-General, not only in respect of nuisance but for other wrongful acts affecting or likely to affect the public. Therefore, I am of the view that section 91 requires amendment in the line of Indian provisions to facilitate the person interested in public interest litigation.
32. ' Conversely, Mr. Naeemur Rehman learned counsel for the plaintiffs has contended that the suit can be filed without recourse to the provisions of section 91 of C.P.C. Or without leave of the Court in terms of Order I, rule 8, C.P.C. And to support this contention has referred the view taken by Madras High Court in Kajjam Lakshmina'rasamma v. Tanniru Seshayya and others AIR 1951 Mad. 491, wherein it was observed that when due to obstruct of public way putting up by defendant obstructing the plaintiff's way to his land, damages is more the less special because other persons have also been obstructed and may suffer the same inconvenience as that the plaintiff as a result of defendants' action. The plaintiff's suit although not instituted with the leave of the Court under Order I, rule g, C.P.C. Or with the consent of Advocate-General under section 91, C.P.C. Was found to be maintainable.
33. ' Mr. Naeemur Rehman, learned counsel for the plaintiffs contended that in the present case the plaintiffs have shown specific grievance being residents of neighbourhood as distinguished from its general impact on the entire locality. Such bar under section 91 would not valid and has referred case of Naz Shaukat Khan v. Mrs. Yasmin R. Minhas 1992 CLC 2540 wherein Mr. Justice Wajihuddin Ahmed (as he then was) observed:-- "There need not be any water-tight compartments for public and private nuisances. It is .Not uncommon that a specific nuisance may be purely a private nuisance or exclusively a public one.
34. Yet there may be occasions, where what was a public nuisance providing cause for punitive action under criminal law or attracting a mandatory written consent of the Advocate-General for institution of civil proceedings under section 91 of the Code of Civil Procedure, such may also be a private nuisance at the same time. The two concepts may thus intersect each other. The test.For differentiation between private. And public nuisance seems to lie in a peculiar impact to one or more individuals as regards rights in or relating to property incidental upon the offending act or act or acts, as distinguished from the general inconvenience, annoyance or detriment to the members of the community at large. The private grievance in such matters, in spite of commonality, was more serious and greater than that to the public as a whole. Cause of action were common but because of the distinct element of specific private injury independent action, without recourse to and consent of the Advocate-General under section 91, of the Code of Civil Procedure and without invoking criminal liabilities under the Pakistan Penal Code of protective measures under section 133 of the Criminal Procedure Code was equally competent. The objection, therefore, that nuisance such as it may be, was a public nuisance alone requiring written consent of the Advocate-General for the institution of this suit loses force because the plaintiffs have shown specific grievances, carrying peculiar stress in the neighborhood as distinguished from the general impact on the entire locality. The objection as to maintainability of the suit on account of the purported bar under section 91 of the Code of Civil Procedure, therefore, would not be valid."
35. ' In the instant case, apart from public nuisance in the shape of pollution, traffic jam as well as shortage of amenities, the plaintiffs, who are residents of the adjoining building have also alleged blockade of their easmentry rights of air, light as well as of privacy. Therefore, I am of the view that the plaintiffs can maintain the cause without seeking permission of Advocate-General, I am inclined to adopt the view taken in Naz Shaukat (supra) that the plaintiffs can maintain the suit without permission of the Advocate-General and the objection as to the maintainability of the suit on account of purported bar under section 91 of the C.P.C. Would not be valid.
36. ' The easmentry right such as light, air and right of privacy though fall under the definition of nuisance can be brought before the Court without recourse to the provisions of section 91, C.P.C., in the instant case, admittedly notice was ordered subject to all just exception. The leave to sue in a representative capacity under Order I, rule 8, C.P.C. Is mandatory.
37. ' The proper course is to obtain permission before the suit is instituted, but if that is not done the rule does not forbid leave being granted afterwards. The rule is mandatory and that failure to comply with its requirement cannot be condoned under section 99, nevertheless, if the suit is laid in representative character, leave can be granted under this rule even at the stage of appeal but even then all the formalities prescribed in the rule should be observed.
38. ' The plaint contains community interest affecting neighbors as well as general public, therefore, I am inclined to grant permission to the plaintiffs to sue in representative capacity. As a consequent thereof, C.M.A. 8308 of 2001 is allowed and interveners 2 to 7, 9 to 13, 17 to 25 are allowed to be joined as plaintiffs. Amended title to the plaint be filed within four weeks.
39. ' This brings me to C.M.A. No,6801 of 2001, filed by the plaintiff for stay of the construction raised by defendant No,1, pending trial.
40. ' The application has been opposed by the defendant through counter-affidavit, wherein the case put forth by the defendant is that the plan has been approved in accordance with the provisions of Karachi Building and Town Planning Regulations, with denial of nuisance and inconvenience caused during construction. The defendants also disputed the plaintiffs being residents of the adjoining building and maintained that it is mala fide attempt to stop project of the defendant so as to destroy the reputation of defendant No,1 and make general public's belief that the answering defendant is doing something wrong as the project is at the mercy of the plaintiffs and all adverse allegations were denied.
41. ' It is now well-settled that the order to seek relief in the shape of interim injunction, it is enjoined upon the plaintiff to satisfy the Court that a person has prima facie case, balance of convenience and irreparable loss likely to be caused. The pre-conditions of the provisions of Order XXXIX, rules 1 and 2, C.P.C. Must be in favour of the plaintiff.
42. ' Mr. Naeemur Rehman, learned counsel for the plaintiffs in support of the application has raised following contentions:-- ' The approval of the building plan for 17 floors violates the provisions of Karachi Building and Town Planning Regulations, 1979 in the following manner-
(a) at the rear side compulsory open space 2.5 metres has not been maintained which violates Regulation 29(1) of Part I, page 22. Such space is necessary for firefighting.
(h) The covered area approved is in excess of permissible covered area under the Regulations by excluding ramp area and other amenities such as toilets, Gymnasium, which have been calculated as covered area (ii)Construction will adversely affect the plaintiff's right of privacy guaranteed under Article 14 of the Constitution and right of life under Article 19.
43. The learned counsel referred the case of Shehla Zia v. WAPDA PLD 1994 SC 693: (iii)That the construction in question shall materially affect the infrastructure and amenities available in the area such as water, sewerage. Gas and electricity, thus, the approval of the plan for construction without obtaining NOC from the Authorities re3ponsible for such facilities could not have been given. To support his contention the following cases have been referred to-
(1) Continental (Pvt.) Ltd. v. Government of Sindh 1996 CLC 417 and (2) Excel Builders v. Ardeshir Cowasjee PLD 1990 SC 2089.
(iv) The project will generate great nuisance in traffic jam in derogation of environment due to emission of smoke. Creation of noise, air light and shall also adversely affect the peaceful living in the neightbourhood.
44. ' Naz Shaukat v. Yasmeen 1992 CLC 2540, Abdul Razzaq v. KBCA PLD 1994 SC 512 and Multiline Associates v. Aredeshir Cowasjee PLD 1995 SC 421.
(iv) That the proposed project will affect the plaintiff's easmentry rights of air, light an privacy.
45. ' Conversely Mr. Farogh Nasim, learned counsel for the defendant No,1 has opposed the application by contending that the compulsory at the back is governed by Regulation 29(3), which has been complied with. No excess area has been passed by KBCA. The plot being commercial its ratio. 1:6 pertaining to Zone C item No,1 of Sirai Quarters for commercial use. The building in question is by birth commercial. He submitted calculation of the area of the plot as follows:-- ' 5751.76 sq. Ft. x 9 = 51765.87 sq. Ft. Plot ratio 1:6 '
46. ' Allowable area 51765.87 sq. Ft. x 6 = 3,10,595 sq. Ft.
47. ' He pointed out that the approved area is 3,10,567 sq. Ft. Less than the allowable area. He also pointed out that the prayer area is included in the covered area. With regard 'to the area covered by Gymnasium, public toilets which construe amenity area. Ramp area is part of the car parking and such area is rightly excluded from the covered area in terms of Entry 7, Cl. Of Regulation, Part 11, page 72. The entire area is commercial and the plaintiffs themselves reside in such a building.
48. Instances of other commercial projects in the area are of MCB Tower of 22 storied, which is under construction, directly opposed to the plaintiff's Project without any objection from any quarters. He also pointed out Habib Bank Plaza. Valika Chamber, Uni Towner, Uni Plaza are such buildings amongst others. He also contended that there is no requirement under the Building Control Ordinance or Karachi Building and Town Planning Regulation for obtaining No-Objection Certificate from the Agencies. He has also pointed out that the project is being constructed strictly in accordance with approved plan which has been passed by KBCA after due scrutiny by taking into account all the provisions of law and Regulations. He lastly contended that no provisions of Building Regulation or law have been violated. He also 'contended that the construction is being raised according to the approved plan, to support his contention he referred Nazir's report dated 31-11- 2001 placed on record as Annexure R-1. The inspection was conducted under the Court's order dated 17-8-2001 passed in C.P. No,D-1775 of 2001 according to para. 5 of the report the construction was found to be in accordance with the approved plan. No violation was. Found.
49. ' It may be noted that the plaintiff No,3 with one Muhammad Asif had also filed C.P. No,1775 of 200i against Province of Sindh and others including defendant No,1 with others civic agencies such as KBCA, KESC Sui Southern Gas Company in respect of the same project. The petition was dismissed by order dated 25-2-2002. All the contentions raised before me were taken in the petition and has been recorded in para. 4 of the judgment and all the contentions were addressed in detail with reference to the provisions of Sindh Buildings Control Ordinance as well as Karachi Building and Town Planning Regulations in the light of the case-law on the subject-matter cited by the parties.
50. ' The party seeking injunction has to show prima facie case. I am of the view that all the grounds taken in support of the application were addressed by Division Bench with reference to the provisions of Sindh Buildings Control Ordinance and Karachi Building and Town Planning Regulations as well as case-law on the subject and all the grounds were negated by the learned Bench. In such circumstances the plaintiffs cannot be .Said to have prima facie case. As Single Bench I am bound by the opinion expressed by the Division Bench except on the point which has not been raised, leaving the ground of easmentry right of light, air as well as privacy in terms of section 15 of the Easments Act, which has been claimed by the plaintiffs. Section 15 attaches conditions to such right, which are of fact needs trial and without proving such right, I am of the view that on the basis of plea of violation of easmentry right the defendant cannot be restrained from raising construction which is being raised under the approved plan and strictly in accordance with such O Approval. However, the construction so raised would be subject to plaintiffs aforesaid right to be proved at the trial. Therefore, any Construction raised by the defendants would be at their risk and costs by extending the order dated 28-8-2001 till disposal of the suit. The defendant No,1 is restrained from handing over possession in violation of section 6(2) of Sindh Buildings Control Ordinance, 1979.
51. ' With the above observations, C.M.As. Nos.6965 of 2001 and 8308. Of 2001 are allowed, whereas C.M.A. No,6801 of 2001 is disposed of, however, with no order as to costs.