1990 PLP 1842 (CLC)

‑‑‑‑ Where any one makes any construction in violation of Rules and Regulations or without proper approval, then besides the fact that he has acted illegally, presumption that such act was not likely to infringe the rights of the neighbours, could not be inferred. (d) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑OXXXIX, Rr.1 & 2‑‑‑Interim injunction ‑‑‑Application,, competency of‑‑ Appeal had been‑filed against order of Court refusing to grant injunction‑‑ Appellant was entitled to file application seeking relief which might be different from relief sought in appeal, but was directly connected and arose out of same facts on basis of which injunction application was filed. Nisarally for Appellants. Khalid M. Ishaq for Respondent. Dates of hearing: 13th and 14th February, 1989. SAEEDUZZAMAN SIDDIOUI, J.‑‑The respondent is contructing a multistoreyed building on Plot No. 407 Garden (East), Karachi. The appellant's building is situated on Plot No.408, Garden (East), Karachi. The appellants filed a suit against the respondent seeking declaration and injunction. They had also filed an application under Order XXXIX, rules 1 and 2 C.P.C. which was dismissed against which present appeal has been filed the appellant had filed an application under Order XXXIX, rules 1 and 2, C.P.C. but it was dismissed on 29‑12‑1988. The facts of the case are stated in this order and need not be reported here. 1t may be mentioned that the appellants had sought a relief during argument that the respondent may be restrained from transferring the possession of the building to third parties. As this relief had not been sought in the application, it was not entertained and was kept open. The appellants have filed the present application in which it has been prayed that the respondent may be restrained from parting with the possession and transferring by lease or on ownership basis or creating third party right in any of the flats, premises, housing suit beyond the ground floor and first Floor in the building constructed by him. Mr. Nisarally the learned counsel for the appellants has contended that the respondent has never submitted any plan beyond the second floor and as the land has already been forfeited by the Government for contravention of the Sanad, the respondent cannot transfer any right in the property to third parties. It has further been contended that in case third party interest is inducted it will create multiplicity of proceedings and in case the appellants succeeded the decree will become infructuous. The learned counsel has referred to the provisions of the Building Control Authority Ordinance as well as the Regulation made for the purposes of construction of buildings. Mr. Khalid M. Ishaq the learned counsel for the respondent on the other hand contended that the plan for the third and fourth floors has been submitted to the relevant Authority and as no reply was received for 60 days it was deemed to have been approved. In this regard the learned counsel has referred to the letters filed with the counter‑affidavit. The respondent has stated that he filed an application before the Building Control Authority in the prescribed manner for two additional floors beyond ground plus one floor on or about 7‑4‑1988 and as directed he paid fee for additional floors on 23‑4‑1988. This plan stood sanctioned by lapse of time as no reply was received in 60 days from the date of application. He has further averred that another application for approval of plan was made on 31‑1p‑1988 and this too stood sanctioned upon expiry of 60 days as no rejection letter has been conveyed to the respondent. A copy of this letter has been filed but it bears no date. A postal despatch receipt has been produced but no acknowledgment due receipt has been filed to show that it was delivered. However, one fact is clear that the plans for third and fourth floors were not approved in the normal manner, but the approval is alleged to have been obtained due to default and inaction on the part of the Building Control Authority. Such sanction is not absolute in all respects, because unless the plan submitted is in accordance with the Rules and Regulations merely by inaction or silence of the Authority the plan does not stand approved. Therefore in such cases, it should also be established that the plan meets the requirement of law. The respondent has not produced any such certificate and also not shown whether, as in the case of second and third floors, he has paid any additional fee to the Building Control Authority in respect of the fourth floor. It seems that the respondent has adopted a modus operandi of filing plan and obtaining the alleged approval on account of silence of the Building Control Authority. Such approval should always be looked with suspicion and cannot give the stamp of authenticity. Prima facie it seems that the Building Control Authority has not issued any sanction in writing in respect of the fourth floor. Respondent has hastened to complete it. The appellants have also pointed out that the duly approved plan exists only in respect of the first and the ground floor. Although the respondent alleges to have applied for the approval of plan of the fourth storey, no specific permission is on the record. The land and the structure has also been forfeited by the Government considering all these facts, we find that the appellants have made out a prima facies case whereby any transfer of the fourth floor is likely to infringe their rights. According to Mr. Khalid Ishaq the appellants' rights are not infringed, and therefore, no injunction can be granted. It is well‑settled that a neighbour can object to the construction of the building in his neighbourhood provided he is able to establish that his right of privacy, light and air will be disturbed and infringed. In the present case as the appellants themselves have B permission for constructing ground plus three floors at this stage, we would persume that permission to the extent in that area could be obtained, but so far as fourth floor is concerned there is no sanction granted in the normal course. In these circumstances it cannot be inferred that the fourth floor as constructed by the respondent is not likely to infringe the appellants' right of privacy, light and air. When a plan is approved by the Building Control Authority while providing balconies, doors, outlets and windows to the building, care is taken that the right of easement of the neigbours is not disturbed. In the absence of any authentic approved plan, at the moment, it will be pre‑mature to hold that the easements of the neigbours have been protected. Where any one makes any construction in violation of Rules and Regulations or without proper approval then besides the fact that he has acted illegally, the presumption that such act is not likely to infringe the rights of the neighbours cannot be inferred. Therefore, till such time the appeal is not decided, it is just and proper to put the owners to certain terms particularly as the construction of fourth floor has been completed. Mr. Khalid Ishaq states that the building cannot be occupied unless the Building Control Authority gives sanction to that effect, as provided by section 6(a) of the Building Control Ordinance. Therefore, at the moment the respondent cannot transfer or hand over possession to a third party. It is true that the induction of a third party creates a foreign interest in the disputed property which ultimately frustrates the object of the plaintiff or obstructs the smooth execution of the decree. Considering all these facts as the appellants have made out a prima facie case, and unless the respondent is restrained the appellants, will suffer irreparable injury and, further as the respondent is not in a position to hand over possession to third parties, we restrain the respondent from transferring, leasing out or in any manner allowing any third party to occupy the fourth floor of the disputed building. Mr. Khalid Ishaq has contended that this application is beyond the scope of appeal and should not be granted. We do not agree with this contention. The appeal has been filed against an order refusing to grant injunction to the appellant. He is therefore, entitled to file an application seeking relief which may be different with the relief sought in appeal, but is directly connected and arises out of the same facts on the basis of which injunction application was filed. The application is granted in the aforestated terms. H.B.T/V.22/K Application granted.