2007 PLP 693 (CLC)

MUNIB AHMAD KHAN, J.

This C.M.A. was taken up in the first half of the day but except counsel for defendant No.2, none was present for rest of the day. Learned counsel for the plaintiff insisted for hearing of application, therefore, this case has been taken up at 1-00 p.m. None except the learned counsel for defendant No.2 is present. Learned counsel submits that plaintiffs and several other persons are living in Bazarta Line, Bazar Area since long and that notification issued by Government of Pakistan dated 16-9-1982 shows existence of several lines of Bazarta Line, Bazar Area and after long period leases have been issued to the plaintiffs and other residents of the area. He has further submitted that only access provided to the residents of Bazarta Line, Bazar Area through Rafiqi Shaheed Road and Shahrah-e-Faisal are being blocked by defendant and thereby the plaintiffs and others residents of that area are seriously suffering hardships as they have to take long turn to reach Shahrah-e-Faisal and Rafiqi Shaheed Road and there is left one emergency entrance of Jinnah Hospital which is also being used by the plaintiffs and other residents of that area, which is not proper and conflict with the requirement of Jinnah Hospital. As in some emergency, specially in the accidents, this road can be blocked then plaintiffs and other residents of that area cannot operate any four wheel vehicle and in case of any clamity or incident, specially fire or electricity emergency, no help can be, provided to them. He states that defendants have no right to close two ways by erecting iron gates on the roads, as the same way has been in the use of the plaintiffs for more than 50 years and under Law of Easement, irrespective of the ownership of land, the plaintiffs and other residents of that area are entitled to use the way. The learned counsel has also relied upon PLD 1999 Lah. 305, 2004 MLD 1936, 2002 SCMR 1294, 1988 CLC 1301, AIR 1938 Lah. 619 and AIR 1995 Mad.

179. On the other hand Mr. Junaid Waqar learned counsel for the defendant No.2 submits that suit is not maintainable as the plaintiffs and other residents of that area have no easement right and that the Petition No.608 of 2003 in same cause was dismissed by this Court. He has further pointed out Annexure "D-4", a map of the area, with his written statement and states that there are four or five ways available to the plaintiffs locality, providing thereby access to them to outer road including Rafiqui Shaheed Road. All these ways are motorable. He further argues that this application cannot be granted as grant of this application will amount to decree of the whole suit. He has relied upon 1988 MLD 2505. Learned counsel for the plaintiff countered the map by saying that it is computer generated sketch and it cannot be relied upon. He has pointed out Nazir's report available at page 127 of this file. According to learned counsel Nazir has surveyed the area and has submitted his report dated 26-5-2003. Nazir in the said report has pointed that defendant No.2 has blocked the access which leads to Abadi by affixing the iron gate. After hearing the arguments of learned counsel and perusing the report of Nazir as well as order in C.P. No.608 of 2003, dated 29-5-2003 it appears that it is correct that petition was dismissed but that was dismissed as one suit has already been filed and the petitioner was also directed to avail the remedy available. The observation, which has been recorded by this Court is as follows: "Be that as it may even if the petitioners dispute the ownership of the respondent No.2, the question cannot be decided in these proceedings. It seems that a civil suit has already been filed before a Civil Court and the petitioners would be well-advised to join proceedings or file a separate suit before the same Court. Indeed the respondent No.1 is responsible for providing inconvenience to residents of the area, nevertheless, in doing so they have no right to appropriate the properties of other parties, except in accordance with law. We would, therefore, dismiss this petition along with listed application, leaving it to the respondent No. 1 to seriously consider the question of providing an outlet to the residents from Rafiqui Shaheed Road." In the above circumstances, keeping in view that plaintiffs and other residents of that area have been using the outlet for considerable long time, which fact is also recorded in the shape of Gazette Notification, which provides the lines available in locality. The observation of this Court in C.P. also give strength to the causes, as has been claimed in the suit, hence balance of convenience is greatly on the side of the plaintiff. The contention of learned counsel that this application cannot be granted because the prayer of the suit is same, has no force, as by this application the plaintiff has sought interim relief and the right of the parties are to be decided after recording of evidence. The authorities cited by the learned counsel for the plaintiff are on the point that public way and road cannot be blocked/restricted and the same are applicable in the case while the case-law cited by learned counsel for the defendant No.2 does not support his contentions. In the circumstances, this application is allowed to the extent that respondent No.2 is restrained from blocking' the passages/road connecting Bazarta Line, Bazar Area with Rafiqi Shaheed Road and if there is any restriction or installation made by the defendant No.2 that should be removed and that position to be maintained till disposal of this suit. Learned counsel also states that in the matter issues have been filed. Office to place issues before the Court. Adjourned to a date in office. H.B.T./R-9/K Application allowed.