1994 PLP 844 (CLC)

In his suit for declaration, injunction and damages, the plaintiff-society has moved this application (C.M.A. No.3134/93) for issue of interim injunction restraining the defendants 2 to 4 from interfering with running of the school namely Clifton Grammar Junior School or stopping the students or staff of said school from attending the said school etc. According to the plaint, plaintiff is running Clifton Grammar School in the premises bearing NoA/II‑A, Sunset Boulevard Street, Defence Housing Authority which has been obtained on rent from Mrs. Meena Sultana under a rent agreement copy Annexure B' filed with the plaint. It is case of the plaintiff that said school is being run uninterrupted for the last 10 years. It is alleged that the defendants 2 and 3 started harassing the plaintiff and tried to get the school closed and to resume the property in question. Consequently plaintiff filed Suit Ne.423 of 1989 which was withdrawn on 1‑12‑1991 on an undertaking given on behalf of the defendants No.2 and

3. Thereafter, in August 1992 the defendants got published in leading national newspapers, a warning that the residents using residential premises for running schools were liable to be ejected and their premises were liable to be resumed. After this the defendants Nos.2 and 3 and their employees started directing the plaintiff and others to close their schools as alleged. Prior to this, plaintiff also filed Suit No.538/92 against the defendants for declaration and injunction. Said suit was also withdrawn on 8‑11‑1992 on the basis of statement made by Advocate for defendants. It was further alleged that on or about 27‑3‑1993 the defendants Nos.2 and 3 occupied compound of the school and ousted the Chowkidar etc. and did not allow teachers to do their job. In the circumstances the plaintiff filed the suit and the present application. The application was opposed by the defendants Nos.2 to 5 who in their counter‑affidavit admitted that they had taken over possession of the premises bearing No.A/11‑A, Sunset Boulevard Street, Defence Housing Authority, Karachi, which was used for commercial purposes and that after taking over of the possession, the school stopped functioning. The defendants handed over the possession of the premises in question to the plaintiff said to be tenant in said premises of Mrs. Meena Sultana. It was case of the defendants 2 to 5 that the premises in question were situated in purely residential area and its commercial use by the plaintiff is a source of great nuisance to the neighbours residing in the area. In support of his application Mr. Abdul Khair Ansari learned counsel for the plaintiff argued that the premises in question were taken on rent on 1‑12‑1984 for opening of Clifton Grammar Junior School and that said school was run for 10 years without any interruption. Learned counsel referred to the letter dated 15‑12‑1992 copy Annexure `F from plaintiff to the defendant No.2 and to the reply copy Annexure `G' dated 28‑12‑1992 addressed to the plaintiff. It was further argued that President's Order 7 of 1980 constituting defendant No.2 was ultra vires of the provisions of the Constitution of Pakistan and that the Rules framed under section 22 of said Order were framed by "Executive Body" and not by `Governing Body' and that Article 24 of the Constitution of Pakistan entitles the plaintiff to protection of proprietary rights. Learned counsel for the plaintiff relied on the case of Muhammad Arshad Jalil v. Pakistan Defence Officers Housing Authority and another (PLD 1992 Kar. 304). He also relied on an order passed in Constitutional Petition No.D‑514 of 1988 in which a petition challenging Presidential Order No.7 of 1980 was challenged and said petition was admitted for hearing. Mr. Raja M. Irshad, learned counsel for the defendants Nos.2 to 5 argued that the premises in question were allotted to one Mrs. Meena Sultana who raised construction over the same but she did not get the lease deed executed in her favour and as such the plaintiffs being tenants cannot enjoy the property in the way they like. Learned counsel for the contesting defendants further argued that present application had become infructuous because possession of the premises, where the school was being run, was taken over and that the school stopped working and then the premises were returned to the plaintiff. In support learned counsel for the contesting‑defendants cited the case of Mrs. Naz Shaukat Khan and others v. Mrs. Yasmin R. Minhas and another (1992 CLC 2540). It is admitted fact that a school in name of Clifton Grammar School was being run in the premises in question vi. NoA/II‑A, Sunset Boulevard Street, Defence Housing Authority, Karachi. There is tenancy agreement showing that the plaintiffs had obtained said premises from Mrs. Meena Sultana for opening of Clifton Junior Grammar School. The question whether the landlady was competent to lease out the premises in question to the plaintiff, is not relevant in this matter. The fact that the school was being run in the said premises is not disputed. It is also undisputed fact that possession of the premises in question were forcibly taken by the contesting defendants on or about 27‑3‑1993. Learned counsel for the contesting‑defendants has not been able to cite any provision of law under which the contesting defendants could take over possession of the premises in dispute otherwise than through the process of law. This shows that possession was taken by way of high handedness. However, possession of the premises has been restored to the plaintiff under orders of this Court. The contesting defendants cannot be allowed to take benefit of their own act by taking the stand that this application has become infructuous because due to high handed act of the contesting defendants the school was temporarily closed. Learned counsel for the contesting defendants was called upon to quote any provision of law under which the defendant No.2 is competent to stop running of a school in a residential building. But he has failed to quote any provision of law and his only theme was that there was no proper lease agreement in favour of landlady of the plaintiff and as such the school cannot be run in said premises. In the case of Mrs. Naz Shaukat Khan and others (1992 CLC 2540) cited by learned counsel for the contesting‑defendants, the private parties had gone to the Court against running of a school in a residential locality and had contended that running of the school in their locality was likely to affect value of their properties and in these circumstances interim injunction was issued for prohibiting setting up a school. This was a case of easement and the said decision was given on an interlocutory application. The present case is distinguishable from the cited case. In the instant case the neighbours living in the locality have not come forward to complain against running of the school in question to be nuisance for them. Moreover, the plaintiff has made out a prima facie case. The school in question is being run since 1984. The plaintiff obtained the school premises by way of rent on 1‑12‑1984 and photo copy of the such agreement is produced. The balance of convenience falls on the plaintiff. If the school is closed the plaintiff would suffer irreparable loss as a school cannot be re‑established with same tempo if the suit is ultimately decreed. For the foregoing reasons I accept this application (C.MA. No.3134/93) and grant the prayers made in the said application. H.B.T./S‑1039/K Application accepted.