1983 PLP 1471 (CLC)

Ss. 10 & O. II, r. 2-Plaintiff only pleading that he belongs to family or community where 'purdah' is observed, but this by itself not sufficient to establish right to privacy as what is required to be pleaded as well as proved is that in locality such custom prevails. [Easement]. S. Ishtiaq Ali for Plaintiff. Usman Ghanf Rashid for Defendant No.

1. Date of hearing : 3rd May, 1982. The present suit has been filed for declaration and permanent injunc tion. The plaintiff had purchased a house bearing No. 43-II-D. Block-6, P. E. C. Ii. Society, Karachi, in 1972 from its previous owner. According to the plaintiff, on the North-West Side of this house there is a piece of land (land in dispute) measuring 533 sq. yards which is part of Jheel Park owned by defendant No. 3, P. E. C. H. Society. Further, according to the plaintiff, as per the scheme and plan of defendant No. 3, the disputed land was earmarked for Jheel Park, and the plaintiff`' had also made applications in 1973 and 1979 to defendant No. 3 for the allotment of the disputed land but defendant No. 3 declined on the ground that this was earmarked as a part of Jheel Park. In July, 1981. the plaintiff and her husband came to know that defendant No. 3 con verted the disputed land into an independent plot numbering the same as. plot of No. 43-11-E, Block-6, P. E. C. H. Society and that it had been provisionally allotted to defendant No. i in 1974 and finally allotted to defendant No. 1 on 18th December, 1979. The plaintiff's case is that the alleged allotment is illegal, mala fide and fraudulent and the con version of the open land into residential plot is also illegal, as the said conversion has deprived the plaintiff from her valuable rights of privacy. light, air, view and beauty being enjoyed by the plaintiff due to the location of the construction by defendant No. 1 on the disputed plot. As the defendant No. 1 started raising construction on the disputed land, the plaintiff, in the name of her husband, filed suit No. 190/82 in the Court of XIV Civil Judge, Karachi asking for a declaration that the plot in dispute was an amenity plot and could not have been allotted for residential purposes and for permanent injunction restraining defendant No. 1 from raising any construction on the disputed plot. It is averred by the plaintiff in the present suit that after filing of the suit before the Civil Judge. Karachi, by the plaintiff, defendant No. 1 increased the speed of the work of construction on the disputed plot with the intention to complete the construction. According to para. 18 of the plaint, defendant No. 1 had completed the structure of the ground floor and had started construction on the first floor. In the circumstances, the present suit has been filed by the plaintiff for declaration and permanent injunc tion. C. M. A. No. 1256/82 is an application under Order XXVI, rule 9, read with section 151, C. P. C. filed by the plaintiff for appointment of a Commissioner to make an inventory of the construction on the disputed plot. By order dated 28th March, 1982 Mr. Abdul Inam of this Court was appointed Commissioner to make an inventory of the construction raised by defendant No. 1 on the disputed plot. The Commissioner gave his report dated 8th April, 1982 supported with photographs. According to the report of the Commissioner, the structure with R. C. C. roof on the ground floor is complete and work on first floor was also in progress. In view of the submission of the said report by the Commis sioner, C. M. A. No. 1256/82 stands disposed of. C. M. A. No. 1257/82 is an application under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. filed by the plaintiff seeking a tempo rary injunction restraining defendant No. 1 from raising further cons truction on the ground floor and first floor of the disputed plot. In so far as the rights of light. air, view and beauty are concerned, as claimed by the plaintiff, at this stage, it has been noted that work on the ground floor is more or less complete and certain work on the first floor has also been carried out by defendant No.

1. In the circumstances, it would not be proper to stop the defendant No. 1 from completing the construction on the ground and first floors, as substantial work has already been carried out on the disputed plot. Mr. Usrnan Ghani Rashid, learned counsel for defendant No. 1, on instructions, stated that defendant No. 1 does not intend to raise any further floors/storeys over and above the ground and first floors on the disputed plot. Great stress was laid by Mr. S. Ishtiaq Ali, learned counsel for the plaintiff, op the question of the plaintiff being deprived of her right of privacy in view of the completion of the construction of first floor on the disputed plot. Learned counsel relied upon an order passed by me in the case of Muhammad Yunus v. Muhammad Haneej Pahelwan (1982 C L C 49). Mr. Usman Ghani Rashid, learned counsel for defendant No. 1, firstly raised a preliminary objection that the present suit was liable to be stayed under section 10, C. P. C. in view of the earlier Suit No. 190/82 filed on behalf of the plaintiff before the Civil Judge, Karachi. Learned counsel also sought aid of Order II, rule 2, C. P. C. in this behalf. The preliminary objection based on section 10 and Order II, rule 2, C. P. C. raised by learned counsel for defendant No. I has no merit, as the previous suit was filed when construction had not been started and the present suit has been filed after the construction has been made to a certain extent and in the present suit, apart from other reliefs, a mandatory injunction has also been sought for removal /demolition of the construction raised on ground floor and first floor of the disputed plot. On the question of privacy, learned counsel for defendant No. 1, referred to a recent unreported judgment dated 10th March. 1982 of Saleem Akhtar, J., of this Court in Suit No. 560/79 (Muhammad Munir v. Ahmadally Memon) (

21. My attention was especially drawn to para. 38 of the said judgment of Saleem Akhtar, J., wherein the learned Judge observed as follows :- "Now putting the plaintiff's case to the test we find that the plaintiff has not been able to prove the customary right of privacy in the manner and according to the principles laid down by the Supreme Court. The plaintiff himself has pot led any evidence that customary privacy or pardah is observed by his family members, community and residents of his locality." Mr. Saleem Akhtar, J. vide enunciating the settled principles in this behalf had also observed in the said judgment as follows :- "It is, therefore, now well-settled that in order to rely on customary easement of pardah or right of privacy it has to be pleaded and proved by evidence. Such custom should be specific, certain and continuous from time immemorial. Such customary right is different from easement acquired by prescription as observed in Harisedhan v. Radhika Parsad (66 C L J 270) and Ahejuddin Shah v. Abdus Subhan Sarkar (P L D 1967 Dacca 135). In Cosmopolitan towns like Karachi it is difficult to claim right of privacy attached to the property (Ref. Mian Hafizullah v. Muhammad Husrain 1938 P L R 483). As observed in Nihalchand v. Fazal Din (1901 P L R 671) the plaintiff claiming customary right of domestic privacy should prove that such custom prevails and is in operation in the community or section of society to which he belongs and it has gained such currency and notoriety amongst this community and locality that by common consent it is obligatory on the owners land in that locality observe, respect and implement it. I find from a perusal of the pleadings on behalf of the plaintiff that it has nowhere been pleaded that in the locality, that is, where the plain- o tiff's house and the disputed plot are located, the custom of domestic privacy prevails. What has been pleaded is that the plaintiff belongs to a family or community where `pardah' is observed but according to the judgment of Mr. Justice Saleem Akhtar; this by itself would not be sufficient to establish a right to privacy, as what is further required to be pleaded as well as proved is that in the locality such custom prevails. As prevalence of such custom in locality concerned has not been pleaded, prima facie I am of the view that on the question of deprivation of right of privacy, the plaintiff has not made out a prima facie case. C. M. A. No. 1257/82, is accordingly dismissed and the ad interim orders are recalled. This order also dispossess of C. M. A. No. 1693/82, as the application of the plaintiff for injunction is also dismissed. It is clarified that as there is a prayer in the present suit for a mandatory injunction for demolition of the construction raised by defen dant No. 1 on the disputed plot, defendant No. I will be raising and completing construction on the ground and first floors at his risk, as the froths of the parties will be determined on the disposal of the suit. The undertaking given on behalf of the defendant No. 1 that he will not raise construction over and above the first floor, is taken on record and the breach of this undertaking will be treated as a breach of the injunc tion of this Court. M. Y, M. Suit allowed partially.