1994 PLP 1601 (CLC)

‑‑‑‑ Balance of convenience‑‑‑Connotation. M. Farooq H. Naik for Appellant. A.H. Mirza and M.S.H. Kizilbash for Respondents. Dates of hearing: 2nd, 3rd and 4th March, 1992. SPED HAIDER ALI PIRZADA, J.‑‑This High Court Appeal has been filed to assail the validity of an order of a learned Single Judge of this Court dismissing the appellant's applications (CMA No. 6623/90 and CMA No. 6625/90) which were filed to seek an interim injunction restraining the respondent No. 1 and the respondents 2 and 3 from raising construction on the ground floor, Block `B' and other Blocks except Block `A' of the building situated on Plot FL/1, Block 17, Scheme No. 36, Ghulistan‑e‑Jauhar, Karachi or to grant approval in respect of the said construction respectively.. The facts leading to the filing of the above High Court Appeal are that the appellant filed suit for declaration and injunction stating therein that the respondent No. 1 is a builder and developer and had advertised a project/building under the name of `Rabia Garden' consisting of various blocks to be constructed on Plot No. FL/1, Block 17, KDA Scheme No. 36, Ghulshan‑e‑Iqbal, Karachi. The case of the appellant as set out in the plaint, was, that the respondent No. 1 had submitted a plan for construction of multi storeyed building consisting of various blocks on the aforesaid plot of land which was duly approved by the respondents Nos. 2 and

3. It was specifically mentioned in the approved plan that on the ground floor, covered parking ‑facility for the owners/residents shall be fully provided in all the blocks except Block `A'. The appellant had booked a flat being. Flat No. 303 in Block `B' of the aforesaid building on the third floor in pursuance of advertisement published in Daily `Jang' dated 1‑6‑1989. The case of the appellant was/is that she was in fact lured by the advertisement as the respondent No. 1 had specifically advertised that the facility of covered car parking had been provided for. However, according to the appellant, the respondent No. 1 in violation of the approved plan of the building, has started construction of 20 more flats on the ground floor of the aforesaid building with the mala fide intention to boost income and to the detriment of the interest of the allottees. The appellant was also aggrieved by the fact that the allotment in her favour has been illegally cancelled by the respondent No.

1. Along with the plaint, the appellant filed the two Miscellaneous Applications seeking to restrain the respondent No. 1 from raising any construction. The respondent No. 1 in the written statement and the counter -affidavit filed on its behalf has denied that any such advertisement promising covered space for car parking had been published in the newspaper or that there was any such provision in the building plan approved by the respondents Nos. 2 and

3. The respondent No. 1 has also denied that the allotment in favour of the appellant in respect of Flat. No. 303 in Block `B' of the said project has been cancelled illegally or mala fide. According to the said respondent, the flat has now been allotted to one Sardar Ali vide sub‑lease dated 1‑10‑1991 after allotment in favour of the appellant had been cancelled by the respondent No.

1. The notice sent by the respondent No. 1 to the appellant dated 28‑7‑1990 a copy whereof annexed to the written statement, shows that the allotment of the appellant had been cancelled on account of the failure of the appellant to adhere to the payment of schedule and payment of the instalment in time. Consequently, according to the respondent No. 1, the appellant has no locus standi even to file the suit. The learned Single Judge, after hearing the arguments advanced by the learned counsel appearing for the parties, dismissed the applications as stated in the earlier part of this judgment. The appellant being aggrieved by the above order dated 7‑2‑1991 has filed the present appeal. Mr. Farooq H. Naek raised the same contentions as were raised before the learned Single Judge. The principles guiding the grant of interlocutory injunctions are fairly well‑settled. The relief is both temporary and discretionary. In cases of interlocutory injunctions, in aid of the rights of the parties seeking it, the Court will first consider whether the appellant was able to establish a prima facie case and as to in whose favour the balance of convenience ties anal who would suffer irreparable loss. The relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff can not claim it as of A right. The relief is to be granted by the Court according to the sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its A discretionary powers, the Court must keep in mind the well‑settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. The appellant in the plaint has made out a case that she was in fact lured by the advertisement as the respondent No. 1 had specifically advertised that the facility of covered car parking had been provided for. According to the appellant, the respondent No. 1 in violation of the approved plan of the building, has started construction of 20 more flats on the ground floor of the aforesaid building with the mala fide intention to boost income and to the detriment of the interest of the allottees. The appellant is also aggrieved by the fact that the allotment in her 'favour has been illegally cancelled by the respondent No.

1. The appellant has annexed a copy of approved plan with the memo of appeal. It does not support the contention of the appellant. It has come on record that Nazir of this Court was appointed Commissioner to visit the site (project) and report as to the stage of construction carried on the ground floor of the building. The Nazir has submitted a report dated 20‑1‑1991 which shows that the construction has already been carried on and the same is at an advanced stage. Whether the construction was in violation of the approved plan or not, would be the subject‑matter of the suit but at the moment certain factors are important for the purpose of deciding to grant an interun relief pending the disposal of the suit. It is an admitted case that the appellant booked a flat on third floor, Block `B' of the project and she was required to pay the instalments in accordance with the schedule. The case of the appellant is that the allotment was illegally cancelled whereas the case of the respondent No. 1 was that the appellant failed to pay the instalments on due dates. The flat was allotted to one Sardar Ali vide sub‑lease dated 1‑10‑1991. Whether the allotment was canceled illegally or not, would be the subject‑matter of the suit. It is no part of the Court's function at this stage of the litigation to try to resolve factual conflicts on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed arguments and mature considerations. These are matters to be dealt with at the trial. It is alleged that without any notice to the appellant, respondent No. 1 illegally cancelled the allotment of flat in favour of the appellant. According to the appellant, the cancellation of flat is illegal, unlawful, maia fide, without any legal effect and void ab initio. It is asserted that the construction raised on the ground floor kept for covered car parking area is contrary to the building plan approved by the respondents Nos. 2 and 3 in violation .of the requirement of the provision of Sindh Building Control Ordinance, 1979 and Cantonment Act, 1924. According to the appellant, respondent No. 1, without proper authorization and permission as required under law, started constructing flats in the area reserved for covered car parking. In these circumstances, the appellant has prayed that interim order should be issued against the respondent No. 1 restraining them from making construction over the land reserved for covered car parking. Respondent No. 1 denied the allegations made by the appellant. Upon consideration of the respective cases of the parties and after hearing counsel, the learned Single Judge came to the conclusion that the appellant did not have a prima face case, the balance of convenience was not in her favour and that she is not likely to suffer irreparable loss and injury if injunction was not issued. Accordingly, the application for interim injunction filed by the appellant was dismissed. It is the settled position of law that an interlocutory order of injunction under Order XXXIX, Rules 1 and 2, C.P.C. can be passed by the Court only if the plaintiff proves that he/she has prima facie case; that he/she is likely to suffer irreparable loss and injury if the injunction is refused and that the B balance of convenience is in his/her favour. In establishing a prima facie case, plaintiff need not establish his title. It would be sufficient for him to show that he has a fair question to raise as to the existence of his right and that till the question is ripe for trial, a case is made out for preservation of the property in status quo. Irreparable injury means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused. "Balance of convenience" means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff if temporary injunction is refused would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then alone interlocutory injunction should be granted. Keeping in view the principles noted above, the facts of this case may now be examined. The first question to be decided is whether the appellant has established a prima facie case. Admittedly the entire plot belonged to respondent No.

1. As per the averments contained in para 5 of the plaint, the plaintiff booked a Flat No. 303 in Block `B' on third floor of the said project. As per the averments in para 8 of the plaint, the defendant No. 1 allocated the said flat to the plaintiff and issued provisional allocation Letter bearing No. 49 dated 10‑10‑1989 in favour of the plaintiff. However, no evidence or material has been produced by the appellant to indicate that any covered car parking facility was available to the appellant. On the other hand, respondent No. 1 has categorically denied that the approved plan provided any covered car parking facility. Respondent No. 1 has asserted that one flat was allocated to the appellant but the same was cancelled as the appellant did not adhere to the instant schedule. There is nothing in the allocation letter that space has been reserved for the appellant in the so‑called covered car parking facility. In the absence of further materials and evidence it is not possible to come to a prima facie finding that the respondent No. 1 has reserved any space for covered car parking facility. The learned Single Judge is correct in his conclusion that at present it is difficult to say that the respondent No. 1 is raising construction contrary to the approved plan. It is further urged on behalf of the appellant that cancellation of flat is illegal or invalid in the absence of service of notice. Whether notice was issued by respondent No. 1 is a question of fact which can be determined only after evidence is led in the main suit. For the present, the photo copy of notice issued by the respondent No. 1 ‑ is on record. The respondent No. 1 also asserted that the flat after cancellation was allotted to one Sardar Ali vide sub lease dated 1‑10‑1991. Accordingly the flat was subsequently allotted .in favour of Sardar Ali. The allegation of the appellant that this subsequent allotment was mala fide and collusive in nature, is yet. to be proved. At present there is no material on record to show that the allotment in favour of Sardar Ali was collusive or fraudulent transaction. In these circumstances, we agree with the learned Single Judge that the appellant has failed to establish that she has a prima facie case. For the sake of convenience, the question of balance of convenience and irreparable loss and injury may be considered together. It is a fact that construction has already been carried on and the same is at an advanced stage. On consideration of the fact?;, we agree with the learned Single Judge that the appellant has failed to establish that she is likely to suffer irreparable loss and injury if injunction is refused or that the balance of convenience is in her favour. In the result, this appeal which has no merit, is dismissed. The order of the learned Single Judge dated 7‑2‑1991 is confirmed. There shall be no order as to costs. We would add that opinions expressed by us in disposing of this appeal shall have 'no bearing to the case at the trial of the suit. The trial Court shall be free to decide the issues before it without in any way being influenced by the observations made in this appeal. We would, however, direct that the suit should be taken up for hearing and disposed of as expeditiously as possible. AA/S‑1062/K Appeal dismissed.