P L D 1992 Lahore 448 (PLP)

reconstruct on ground of same being in violation of Master Plan ‑‑‑ Petitioner's bid to seek interim injunction for stay of rent proceedings failed in Trial Court as also in lower Appellate Court ‑‑‑ Petitioners' (tenants') another bid to get proceeding's before Rent Controller stayed. also failed ‑‑‑ Petitioners challenging interim orders of Civil Courts as also interim order passed by Rent Controller in revisional jurisdiction ‑‑‑ Petitioners' (tenants') entitlement to grant of injunction ‑‑‑ Two Courts below had rightly observed that issuance of restraint order in circumstances of case would adversely affect case of respondents (landlords) who had embarked upon eviction proceedings strictly in accordance with law under West Pakistan Urban Rent Restriction Ordinance, 1959 ‑‑‑ Petitioners (tenants) had got no ,prima facie case and in case of grant of injunction, respondents (landlords) would be suffering irreparable loss and injury, particularly when their title to property was not under, dispute ‑‑‑ No illegality or irregularity had been found in the orders of Courts bellow ‑‑ Revision was dismissed in circumstances. The Karachi ' Electric Supply Corporation Ltd. v. The Karachi Electric Supply Corporation Ltd. Labour Union PLD 1967 SC 513; Kh. Abdul Majeed v. Custodian of Evacuee Property and others PLD 1986 SC 45; Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180; Ismail Brothers v Keval Ram PLD 1981 SC 545; Saeen Muhammad and others v. Government of Punjab PLD 1979 Lah. 6,7; Dr.Abdur Rauf and others v. Sh. Muhammad Iqbal and others 1991 SCMR 483 'Riasat Ali v. Muhammad Jafar Khan and others 1991 SCMR 496; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Div4ion and 2 others‑PLD 1972, SC 279; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Province, of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1; Bahadur Khan v.'Ch. Muhammad Hussain and others 1991 SCMR 429; Krishna Kishore Bal v. Sankanasan Small and others AIR 1974 Orissa 89; Cawashah B ' omanji Parakh v. Prafulla Nath Rudra AIR 1941 Nag. 364; Lalit Mohan Mitra and others v. Samirendra Kumar Ghosh and others AIR 1977 Cal. 174; Nandalal Ladia and another v. Provudayal Tikriwalla and anothey AIR 1952 Cal‑74; Moosa Bhunji (through Legal Heirs) v. Hashwani Sales and Services Ltd. ‑and another PLD 1982 Kar. 940; Narayandas S. Kanuga v. Sarasvatibai D. Joshi'and another AIR 1968 Born. 280 and Zakaria Dad v. Maneck Byramjijavat 1992 CLC 345 ref. Habibul Wahabul Khairi for Petitioners. Abdul Baseer Oureshi for Respondent No.l. Mahmoodul Hassan Awan, for Respondents Nos.2 to

7. Date of hearing: 11th May, 1992. I JUDGMENT Petitioners through this revision petition have assailed the order dated 26‑3‑1991 and 17‑6‑1991 passed respectively by the Civil Judg Rawalpindi, and the Additional District Judge, Rawalpindi, declining to issue restraint order as prayed for. Brief facts for the disposal of this revision petition are that the petitioners, who are occupying property No. N. W. 1018 situated at Murree Road, Rawalpindi, as tenants of respondents Nos. 2 to 7 filed a suit for declaration/permanent injunction that the building plan. sanctioned by respondent No.1 on 25‑1‑1990 for the reconstruction of the above mentioned property is illegal/void being in contravention to the Master Plan of Rawalpindi city. They also sought declaration to the effect that the petitioners/plaintiffs being permanent residents of Rawalpindi city are entitled to basic amenities of health and sanitation and respondent No.1 is bound to provide the same go as to develop the city of Rawalpindi in accordance with, the Master Plan. A" permanent injunction has also been sought restraining, respondent No.‑I from sanctioning the building plan for commercial purpose of, the Murree Road. Rawalpindi. The afore stated suit was filed on 15‑1‑199'.. However, prior to the filling of this suit, respondents Nos.2 to 7' filed an ,ejectment petition on the 3rd of Feb., 1990 on the ground of reconstruction and personal need Against t ' he petitioners qua this very property No. N.W. 1018. In the ejectment application the petitioners have also challenged the legality of the sanctioned map on the ground that the same is in conflict with the Master Plan of Rawalpindi and issue in this regard has been framed by the' learned Rent Controller in the following words:‑‑ "Whether, the Municipal Corporation, Rawalpindi has any authority to sanction plan of commercial building on a residential site and whether the building plan of the suit premises has been legally and validly approved? OPD" Alongwith the declaratory suit thc petitioners also the au application for the interim restraint order to the effect that during the pendency of the suit, respondents Nos.2 to 7 be restrained from raising any construction and ejecting the petitioners/plaintiffs from the disputed property. This petition was controvert by respondent No.1 and respondents Nos.2 to 7 by filing separate written statements as well as replies to the‑ application. The Civil Judge, Rawalpindi, through his order dated 26‑3‑1991 refused to grant restraint order The petitioners filed an appeal which too was dismissed by the Additional District Judge, Rawalpindi through his order dated 17‑6‑1W

1. Hence, this revision petition. It is argued by the learned counsel that the two Courts below have failed to appreciate the nature of the case in its true 'perspective. The petitioners have got a good prima facie case as the proposed construction on the basis of alleged sanctioned plan dated 25‑1‑1990 is clearly in violation of Master Plan of Rawalpindi which, if not restrained, would affect the petitioners' right adversely. It has also been argued that the petitioners would suffer irreparable loss and injury if the construction as alleged is not stopped. A challenge has also been thrown to the interim orders dated 17‑11‑1990, 29‑1‑1991, 9‑7‑1991 passed by the Rent Controller, Rawalpindi and the order dated 1‑4‑1991 passed by the Additional District Judge, Rawalpindi, in the ejectment proceedings pending between the petitioners and respondents Nos. 2 to 7 to show mala rides on the part of the Courts below in the rent proceedings. Orders dated 17‑11‑1990 and 29‑1‑1991 passed by the Rent Controller, Rawalpindi, are to show that the petitioners' application for summoning of witnesses had been refused by him in an arbitrary manner and the appeal against the same had been dismissed by the Additional District Judge, Rawalpindi, as being incompetent on 1‑4‑1991. Further grievance has been made that an application for adjournment sine die of the rent proceedings pending between the parties was made before the Rent Controller on the ground that the petitioners/plaintiffs have since challenged the sanctioned plan before the Civil Court being in violation of the Master Plan, as such, during the pendency of the afore stated suit the rent proceedings be stayed sine die which application has been dismissed on 9‑7‑1991 by the Rent Controller. Learned counsel has also read out certain provisions of the Local Government Ordinance, 1979 to show that the petitioners have got no other remedy under the Ordinance to challenge the validity of the sanctioned plan and the disputed map has been passed in clear violation of the law and rules. He has also referred to certain provisions of the Master Plan which, according to him, have been violated while sanctioning the disputed plan. In support of his contentions learned counsel for the petitioners has relied upon "The Karachi Electric Supply Corporation Ltd. v. The Karachi Electric Supply Corporation Ltd. Labor Union" PLD 1967 SC 513 to contend that the action of respondent No. 1 in passing the disputed plan in violation of Master Plan is an action without lawful authority and has got no sanctity in the eye of law. He has stated that the wrong interpretation placed by the functionaries on the Master Plan had made their actions being without lawful authority. In support of his contention he has quoted from "Kh. Abdul Majeed v. Custodian of Evacuee Property and others" (PLD 1986 SC 45 at page 54) wherein it has been held that "the exercise of lawful authority is subject to the necessity of interpretation of the law which is being applied and where that law is wrongly interpreted, action cannot be held to be otherwise than devoid of lawful authority." To demonstrate his right he has read out from Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another (PLD 1970 SC 180) where it is observed that "It is needless to mention that in a case where temporary injunction is claimed, the plaintiff has only to make out that he has a good prima facie case meaning thereby that a serious question is to be tried in the suit and that in the event of success if the injunction is not issued he will suffer irreparable injury. The appellant has, in the present case, fulfilled all these conditions. Even the learned Additional Advocate‑General and Mr.Nathu Lai, learned counsel for respondent No.2 has not opposed the issue of injunction." Ismail Brothers v. Keval Ram PLD 1981 SC 545 has also been quoted wherein an Interim restraint order staying execution of Rent Controller's order of eviction was stayed as the same was secured on the basis of fraud and misrepresentation. Learned counsel has also read certain paras. in extension from Saeen Muhammad and others v. Government of Punjab PLD 1979 Lahore 67, DrAbdur Rauf and others v. Sh. Muhammad Iqbal and others 1991 SCMR 483, Riasat Ali v. Muhammad Jafar Khan and others 1991 SCMR 496, The Murree. Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279, Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC

1. Learned counsel appearing for respondents Nos.2 to 7 has argued that the suit out of which this present revision petition has emanated has been filed in a mala fide manner as a counter‑blast to frustrate the ejectment proceedings pending against the petitioners. He has stated that the map of the disputed property was sanctioned on 25‑1‑1990 and the setback of 19 ft. 6 inches and 13 ft. 6 inches have been given by the respondents from their own land to make the width of the road in accordance with Master Plan bye‑laws. He has also pointed out that in the Master Plan construction of commercial structure on the Murree Road is not barred and the large number of commercial establishments have already been raised. It has further been stated that it does not lie in the mouth of the petitioners to challenge the commercial nature of the respondents' plan when they themselves are using the disputed property on commercial lines. In support of his submissions learned counsel has relied upon Bahadur Khan v. Ch. Muhammad Hussain and others 1991 SCMR 429 wherein the Court refused to interfere in the eviction order simply on the ground that the landlord would raise the construction on the Highway. AIR 1974 Orissa 89 (Full Bench) Krishna Kishore Bal v. Sankansan Small and others has been relied upon where it is held as under:‑‑ "Law is thus well settled that mere violation of municipal rules or plan is not actionable per se unless an injury, real. or apprehended, is established by the persons in whose interest and for whose protection the rules are framed. The Act and the Rules create an obligation favour of the plaintiffs if they prove such injuries which would be determined according to the facts and circumstances of each case." In Cawashah Bomanji Parakh v. Prafulla Nath Rudra AIR 1941 Nagpur 364 it has been held as .under:‑‑ "In a suit for injunction restraining the building of a house it is incumbent on the plaintiff under section 56(k) to show some special damage or injury. The mere fact that the Municipal Committee acted beyond its powers in granting the sanction for construction of the house is not by itself sufficient to entitle the plaintiff to sue." Reliance has also been placed upon Lalit Mohan Mitra and others v. Samirendra Kumar Ghosh and others AIR 1977 Calcutta 174, Nandalal Ladia and another v.' Provudayal Tikriwalla and another AIR 1952 Calcutta 74, Moosa Bhunji (through Legal Heirs) v. Hashwani Sales and Services Ltd. and another PLD:1982 Karachi 940 And Narayandas S. Kanup v. Sarasvatibai D. Joshi and another AIR 1968 Bombay

280. I have considered the contentions And have gone .,through the judgments/orders and the documents appended with this petition. I must hold' at the very outset that I shall not dilate upon the interim orders passed in the rent proceedings to‑which challenge has been thrown in this petition just to show mala fides on the part of the Court in those proceedings because of the fact that the Rent Controller, Rawalpindi, has already passed an ejectment order against the petitioners, from the property in dispute through his judgment dated 22‑4‑ 1992.'A 'copy of .the, same has been placed on record by the learned counsel appearing for the petitioners. An' dilation on those interim orders may prejudice the case of the either party. the sanction of the disputed map was accorded after its approval, by a Committee known as "Building Plan Sanctioning Committee" headed by, the Commissioner, Rawalpindi by taking into consideration, the, bye‑laws of the Municipal Committee, Rawalpindi, as well ,as its Master Plan. The respondents Nos.2 to 7 in order t . o secure sanction have surrendered set back of 19 feet 6 inches and 13 feet 6 inches from their own land to make the width of the Murree Road, 82 feet from its center as required under the bye‑laws. The map of the disputed property appears to have been duly sanctioned by the Municipal Committee, Rawalpindi, which according to the learned counsel. appearing for, the Municipal Committee, Rawalpindi, is in accord with law and rules. It is an established law that three ,ingredients for the grant 'of injunction must co‑exist in order to entitle the petitioners/plaintiffs for the relief claimed. Petitioners have to show that they have got a good prima facie case; that balance of convenience lies in their favour and they are likely to suffer irreparable loss if injunction 'is not granted Here in this case the respondents Nos.2 to 7 have embarked upon the eviction of the petitioners after equipping themselves with a sanctioned map for reconstruction of, the disputed property. This right of reconstruction and consequent eviction is guaranteed by section 13 of the ‑Punjab Urban Rent Restriction Ordinance, 1959 which in turn has also secured the interest of the tenants in case of any dereliction on the part of the landlord. Any interference would amount to frustrating the right of construction/eviction provided under the law. In a case reported in 1992 CLC 345 Zakaria Dad v. Maneck Byramjijavat a learned Judge of Sindh High Court refused to grant injunction to the tenant in a suit for specific performance as the same was going to have adverse effect on the respondent proceedings pending between the parties. This revision petition can be dismissed on another ground that the remedy being discretionary the two Courts below have refused to exercise their discretion favoring the petitioners. It is ironical that the petitioners have been using the property in dispute 'as tenants on commercial basis for the last many years and this factum has been admitted by the learned counsel for the petitioners. But on the contrary, they have thrown challenge to the respondents' sanctioned plan simply on the ground that the same is violative of the Master Plan as the property under dispute cannot be utilized for commercial purpose. The petitioners want different treatment for themselves as compared to respondents Nos.2 to

7. They themselves are using the disputed property' for commercial ‑purpose but do not allow respondents Nos.2 to 7, the owner/landlord of the property, to use the same on that basis in spite of the fact that they have got the sanctioned map in their favour. The Holy Prophet (peace be upon him) has said that "Treat others with similar/same treatment which you like from others unto yourself'. The two Courts below have rightly observed that the issuance of the restraint order in the circumstances of this case would adversely affect the case of the respondents who had embarked upon the eviction proceedings strictly in accordance with law under the Rent Restriction Ordinance, 1959. The petitioners have got no prima facie case and in case of grant of injunction it would be respondents Nos.2 to 7 who would be suffering irreparable loss and injury, particularly when their title to the property is not under dispute. No illegality or irregularity has been found in the orders of the two Courts' below. Resultantly, in view of what has been stated above, I am not inclined to interfere in the impugned ‑orders and dismiss this petition with no order as to costs. AA./M‑504/L Petition dismissed.