1983 PLP 3271 (CLC)

Date of hearing : 1st February, 1983. The applicant is the owner and in occupation of southern portion of Plot No. 328, Garden West, Karachi. The respondents are raising multi‑storeyed building on Plot No. 332 Garden West which is fifty feet away on the southern side of the house. Their boundaries are not adjacent to each other. The applicant objection to this construction on the ground that it is not according to law and further that it will infringe applicant's right of privacy, air and light. The applicant had filed an application under Order XXXIX, rules 1 and 2, C. P. C. seeking injunction against the defendants restraining them from constructing the multi‑storeyed building. The respondent denied the allegations and stated that the construction is according to law and that the right of privacy, light and air will in no manner be infringed by the proposed construction which consists of ground plus four storeys. The learned Civil Judge rejected the application, and appeal filed against that order was also dismissed. Both the counsel have argued the matter at length. However, Mr. Sikandar Ali Abdullah the learned counsel for the applicant has referred to an undertaking given by the respondents before the learned Civil Judge on 26‑10‑1980, which reads as follows: "The defendants hereby undertake that in case, the defendants are allowed to raise the construction of the building, solely at their own risk and ultimately shall demolish the construction of the building beyond the existing construction i.e. ground plus one storey on one block and ground plus two on the other block on Plot No. 332, GRW Karachi, at their own cost without claiming any compensation." Again on 31‑10‑1981, the respondents gave the following undertaking before the trial Court "The defendants undertake that they shall not band over the possession of the fiats in the proposed project before the decision of the above suit." Mr. K. A. Wahab the learned counsel for the respondent faced with this situation stated that the respondents will abide by their undertaking" dated 31‑10‑1981, but as the entire construction has already been completed and grievance, if any, the applicant may have, is in respect of flats facing the applicant's house, be pleaded that this undertaking may be modified to the extent that it will operate in respect of flats which are facing the applicant's house and are on second, third and fourth floors, because the applicant does not have any objection to the construction of ground and first floor. Mr. Sikendar Ali Abdullah is satisfied with this modified undertaking and, therefore by consent the Revision Application is disposed of in the following terms :‑ "The respondents shall not part with the possession of the flats situated on the second, third and fourth floors of their building which are facing the applicant's house . The respondents will be entitled to handover possession of the flats situated on ground and first floor facing the applicant's house." A breach of this undertaking shall be treated as a breach of injunction. The paties are, however, directed to proceed with the suit before the learned Civil Judge expeditiously without any delay and necessary adjourn ments. The learned Civil Judge is directed to dispose of the suit within six months and the evidence shall be recorded from day to day. If any delay in the proceeding is caused by the applicant which is unreasonable and dilatory, the respondents will be entitled to apply to this Court for reconsideration and discharge of the aforestated undertaking in terms of which this revision application has been disposed of. M. Y. H. Injunction granted.