1990 PLP 628 (CLC)

This is an application under Order 39, Rules 1 and 2 and Section 1_` C.P.C, Case of the plaintiff is that he is owner of a residential house on Pl( No.88/3 Flynn Street, Garden East, Karachi measuring 1,000 sq.yds. wherein 1 is living with his family. Adjacent to plaintiff's plot there is Plot No.89 which is c its north. There was an old bungalow on this plot. Defendant No.l has recent acquired Plot No.89 and demolished the old bungalow and in its place has start construction of town houses. The said construction is in violation of Building Rules, inter alia, as the compulsory open space of 10 feet has not been le towards the plaintiff's plot but only 5 feet or less has been left. He has also put L some construction upon plaintiff's boundary wall. The construction sought to 1 put up, has on its rear side windows and balcony opening on and overlooking the plot, land, courtyard and lawn of the plaintiff's house and thereby violating the right of his privacy. Hence the suit with a prayer for injunction restraining construction violation of Building Rules and privacy of the plaintiff. Mandatory injunction also sought directing the defendant to demolish the violative portion of the defendant's building. Alongwith the suit an application for interim injunction was made. The defendant No.1 has not denied ownership of the plaintiff but he has alleged that plaintiffs construction is unauthorised. He has also not denied that he has acquired Plot No.89 and is raising construction of town houses thereon. He has denied that he has not left the compulsory open space between his plot and plaintiff's plot. He has alleged that he has left 7/1‑2 feet space towards plaintiff's plot. He has alleged that the plaintiff himself is also guilty of committing violation of the same rule in that the plaintiff has left only 5 feet compulsory open space towards eastern side of his plot. He has denied that he has raised any construction upon plaintiff's boundary wall. The truth of the matter is that a temporary site office was constructed abutting the plaintiff's plot, and the same has been mostly demolished. He has denied that there was any balcony facing the plaintiff's courtyard. He has admitted that there are 3 windows opening towards the side of the plaintiff's bungalow. All these three windows are of the standard size and are in no way offensive to the privacy of plaintiff's house. Mr. Sayeed A. Shaikh, Advocate who is himself the plaintiff in this suit has contended that the defendant No.l is raising construction in violation of the approved plan which he has himself admitted in his counter‑affidavit. He has relied upon 1989 CLC 739 Yakoob Ahmed v. Tason Construction (Pvt) Ltd. and 1987 CLC 558 Hawa Bai v. Haji Ahmad where it was held that the very fact that the construction was being raised without an approved plan or in violation of an approved plan was enough to grant an interim injunction. These rulings are distinguishable from the present case as in the former case a 16‑storey building was being constructed and in the latter case a multi‑storeyed building was being constructed infringing the easements of light and air of the plaintiff and in violation of the approved plans which is not so in the present case. It may be pointed out that the construction in question consists of town houses. The height of these town houses is hardly ground plus one. Ordinarily such small constructions are not so designed so as to obstruct light and air of the neighbours. The plaintiff has not produced any such definite instance of obstruction. The intrusion into privacy of the plaintiff through the windows and balcony of the house in a city like Karachi cannot be readily accepted. The plaintiff will have to establish the right of privacy by leading evidence fulfiling the test laid down in Fazle Raziq's case reported in PLD 1980 SC

193. The defendant No.1 has stated that he has left 7/1‑2 . feet space between his construction and plaintiffs boundary wall. The report of the Commissioner, however, shows that it is lesser. In the middle it is 38" and on the sides it is 70". It is, however, not only in violation of the Building Rules but also in violation of the approved plan. Ordinarily the Courts do not grant injunction to stop construction which is nearing completion. However, in the peculiar circumstances of this case I grant interim injunction restraining the defendant No. l from raising any further construction towards plaintiffs side which is within 10 feet of the boundary wall of the plaintiff's house. It is clarified that (i) this interim injunction will not restrain the j, fcndan; No.l from raising construction on the remaining portion of the premises which is not within 10 feet of the plaintiffs boundary wall, (ii) this interim injunction shall not authorise the defendant No.1 to raise any construction whatsoever in violation of the approved plan or the orders of the building Control Authority, (iii) the question of demolition of any existing construction in violation of the approved plan shall be taken up at the time of final disposal of the suit. C.M.A. No.2673/89 stands disposed of accordingly. A.A./S‑462/K Order accordingly.