1989 PLP 2252 (CLC)

Muhammad Sharif for Defendant. Date of hearing: 22nd May, 1989. These are Counter‑Suits in each of which an application for injunction from the side of the relevant plaintiff has come up for disposal.

2. In Suit No.611 of 1988 plaintiff, Mrs. Nawab Begum, through CMA No.4308/1988, seeks an Interim injunction against the defendants, Dr. MA. Mahboob, Mrs. Fasihuddin and Muhammad Fasihuddin, restraining them, or any one claiming under them, from raising further constructions on Plots Nos.E‑82 and E‑82/1, Block‑7, Gulshane‑Iqbal, Karachi, in violation of deviation from the approved plan or in breach of the conditions in the Karachi Building and Town Planning Regulations. On facts, it is pleaded that plaintiff is the owner of the bungalow constructed on adjoining Plot No.E‑81, that the defendants have, on their plots, raised construction upto roof level of the ground floor, leaving only 5 feet open space from the Eastern and Western sides of the boundary wall of plaintiff's plot, the required compulsory open space being 10 feet and that besides, the defendants have left no open space on the Northern side, and only 10 feet of open space on the Southern side whereas they were required, to leave 15 feet open space on the Northern side and 20 feet of such open space in the South. In so doing, the defendants have deprived the plaintiff of privacy and access of light and air, since open spaces are designed to secure private and uncluttered enjoyment of property by neighbours. It is averred that the plaintiff and her daughters observe "PARDAH" and are used to staying indoors and they, on account of defendants' acts of commission and omission, stand precluded in the performance of their day to day functions. It is next said that, on representation to the Karachi Building Control Authority (K.B.C.A.), notice dated 6‑8‑1988 was issued directing the defendants to stop construction forthwith and demolish and unauthorised structure within 24 hours. The defendants, however, have remained unmoved and construction activity, in violation of the approved building plan and in disregard of the conditions attached thereto, as also, in defiance of the provisions of the Sind Buildings Control Ordinance, 1979, has continued thereby invading plaintiff's right to light, air, privacy and amenities. Permanent injunction, declaration and Direction for redress against the defendants have been sought in the Suit. Such suit having been filed on 15‑8‑1988, and interim orders of limited duration, restraining construction in the compulsory open space, were passed on 16‑8‑1988 but the defendants, allegedly, avoided service.

3. On 21‑8‑1988, defendants, Dr.M. A. Mahmood and Mohammad Fasihuddin, filed their own suit bearing No.625 of 1988 maintaining that they, who are brothers inter se, are owners of the aforesaid sub‑divided plot bearing Nos.E‑82 and E‑82/1, which respectively measure 756.45 and 752.10 Sq.Yds. It was said that sub‑divided Plot No.E‑82/1 adjoins Plot No.E‑81, owner etc. whereof was interfering with the duly approved construction work of the plaintiffs, in Suit No.625 of 1988. At the behest of such owner, KBCA issued notice to the plaintiffs dated 6‑8‑1988, which was motivated and in‑competent. It was further urged that the said adjoining owner had herself violated the approved plan in respect of her plot and raised an additional storey apart from other deviations. Declaration as to legality of notice dated 6‑8‑1988 was sought as also prohibition in relation to interference in plaintiffs' construction.

4. Learned counsel from both sides have relied on a number of reported cases together with some unreported dicta of this Court. I have also adverted to some. Such cases are (1)T.R.Bhushanam v. C.Umapathi Mudaliar and another AIR 1935 Mad.970, (2) Cawashah Bemanji Parakh v. Prafulla Nath Rudra AIR 1941 Nag.364, (3) Hirendra Nath Datta v. Corp. of Calcutta AIR 1941 Ca1.386, (4) Re Sm. Lakshmimoni Dassi AIR 1941 Ca1.391, (5) Agha Mohd. Hussain Jan and others v. Elias Haji Wahid Dino AIR 1948 Sind 36, (6) Nandalal Ladia and another v. Provudayal Tikriwalla and another AIR 1952 Cal.74, (7) Krishna Kali Malik v. Babulal Shaw AIR 1965 Cal.148, (8) Order dated 2‑6‑80 in Suit No.805/79; Hajiani Badrunnisa v. Abdul Aziz (Unreported), (9) Malik Manzoor Hussain v. Mohd Bashir 1980 SCMR 366, (10) Haji Fazal‑i‑Raziq v. Syed Zaman Shah PLD 1980 SC 193, (11) Mohd. Munir v. Ahmad Ally Memon PLD 1982 Kar.425, (12) Moosa Bhunji v. Hashwani Sales & Services Ltd. and another PLD 1982 Kar. 940, (13) R.G.Sehwani Co‑operative Housing Society Ltd. v. Haji Ahmad PLD 1983 Kar.ll, (14) Mst. Hawa Bai v. Haji Ahmad another 1987 CLC 558; (15) Vazir Ali etc. v. Hanif NLR 1989 U.C.325.

5. As broad principles, gleaned from the above authorities and cognate law on the subject, it may be stated that where a local or municipal authority frames and enforces Regulations, it is empowered to make and execute, the Regulations calculated to govern, control or ensure the rights of residents in a locality, violation thereof may give rise to questions in which such residents may be interested or concerned, but the transgression is actionable only at the instance of those aggrieved. The Supreme Court dicta in the case of Fazaldin v. Lahore Improvement Trust PLD 1969 SC 223 has been restated and re stressed in subsequent decisions without, it would seem, deviating from the rule laid in the case of Lahore Improvement Trust. However, it may be said that, that was a decision in Constitutional jurisdiction, based on the broadest of considerations through, as will appear below, the distinction may only be technical. Conventionally, in relation to suits, rights of the aggrieved party may, primarily, have to satisfy the requirements of Sections 42, 54 and 56 of the Specific Relief Act, 1877, where there are some restrictions and conditions, in details whereof it is unnecessary to go, of this stage, sufficing it to say that, in such matters I declaratory relief is to pertain to rights in or to property and Permanent Injunction sought should conform to the requirements of Sections 54 and 56 ibid. Reference on the point may be made to dicta of Edgley, J., and Amir, J., in the cases of Hirendra Nath & Lakshmimoni Dassi and the opinion of Das, J., in the case of Nandalal Ladia. The view of A.N.Ray J., in the case of Kirishana Kali Mallik, however, is more in line with the Supreme Court dicta in, the case of Lahore Improvement Trust and postulates that a suit may lie by one aggrieved under the relevant municipal statute itself for enforcement of statutory obligations. It would seem to me that the salutary rule of Ubi Jus Ibi Remedium (where there is a right there is a remedy) is in a way, supplemented by Section 9 of the Code of Civil Procedure and unless their jurisdiction is, expressly or impliedly, barred Civil Courts are vested with jurisdiction to entertain. and try all suits of a civil nature. This being the legal framework, it would appear that a right or redress for wrong may, generally be sought in a suit provided, always, that the right claimed can be established. In the context here, it is an established proposition that spaces, compulsorily required to be left open around structures and, particularly, those abutting on neighbours' plots are designed and intended, inter alia, for a more beneficial enjoyment of such spaces by adjoining owners. See the view of Haider Ali Pirzada, J., in the case of Vazir Ali ibid. This seems to be so, irrespective of the rights as to light or air or privacy between adjoining owners, as to last of which binding dicta of the Supreme Court in Fazl‑I‑Raziq's case followed by Saleem Akhtar, J., in RG Moosa Bhunji & Sehwani Society etc. is that such are to be established on proper evidence. This approach with regard to multi‑storeyed structures may, subject to closer examination of the matter, be conditioned by proof as to actual infringement of rights as to light and air etc. In the unreported case of Hajiani Badrunnisa A, mal Mian, J., as he then was, at the interlocutory stage, restrained completion of the multi‑storeyed block adjoining the plaintiffs plot even though it was shown that there were other multi‑storeyed buildings in the locality and plaintiff herself was in breach of some of relevant Regulations she was seeking to enforce.

6. It is on the basis of the principles, as re‑capitulated above, that these applications for the relief of interlocutory injunction have to be decided.

7. Towards further progress of these cases Nazir of the Court was appointed Commissioner to make site inspection. He, with supporting photographs, has indicated that the defendants have contravened the Regulations for leaving open spaces, though not in the same dimensions as claimed by the plaintiff in Suit No.611/88. No objections having been submitted to such report, it would stand accepted, subject to further evidence in the cases, as and when that comes to be recorded. In arguments it has been urged that the provisions as to the open spaces are based on the Regulations prepared in 1972 which have not been adopted under the Sind Buildings‑ Control Ordinance, 1979. No such plea has been raised in the written statement in Suit No.611/88 nor does it find mention in the claim in Suit No.625/88. Indeed in the case of Vazir Ali, above, such Regulations were treated as enforceable under the Sind Buildings Control Ordinance, 1979. For the purposes of this case, which requires only determination of prima facie case, I would refrain from venturing into that question, leaving it open for consideration on trial of the two actions.

8. At‑this juncture, my conclusion is that preceding the K.B.CA notice dated 6‑8‑1988, defendants Nos.l and 3 in Suit No.611/88, have raised contravening constructions on Plots No.E‑82 & E‑82/1 specifically in the rear and front thereof and the side adjoining plaintiff's Plot No.E‑81, aforesaid. It is said, relying on the ratio in Manzoor Hussain's case, that since the construction is in an advanced stage the same does not warrant dismantling and, prima facie case or no, interim orders do not qualify for confirmation in this case. For one thing, the structure, as per Nazir's report, does not appear to be very much beyond the stage of a skeleton and, furthermore, the case of Manzoor Hussain which was between co‑owners is not licence for further violative constructions where building plans are, ostensibly, not adhered to and the defendant is under notice to demolish.

9. An argument was raised by Mr. Mohammad Sharif that the plaintiff in Suit No.611 of 1988 has herself contravened these Regulations in raising a second floor on her own plot while only ground plus first floors were permissible to her. This may be so and may, even, have given a cause of action to the plaintiffs in Suit No.625 of 1988 and, indeed, they have made a serious grievance of it in their suit, but, for reasons better known to them, they have refrained from seeking any relief in relation to that contravention. 10. 1 would be very slow in overlooking this or any other lapse on the part of the plaintiff in Suit No.611 of 1988. The defendants would be at liberty to move for amendment of their plaint in Suit No.625 of 1988, which, if and when moved, shall be considered in consonance with the justice of these causes. Any state of affairs where law is only observed in its breach can never be brooked let alone allowed to be continued.

11. It is next urged that the breach, if any, on the part of defendants in Suit No.611/88 (Plaintiffs in Suit No.625/88) is of a trifling nature and can be condoned by the K.B.C.A. and, thus, they should be permitted to complete the structure as soon as possible, since the order of Injunction exposes them to huge losses on investments. I do not agree for, at least, three reasons. Firstly, it is extremely doubtful whether the K.B.CA. can unilaterally condone any breach of duty under the Regulations, which breach may have ramifications on the rights of adjoining owners and it would appear that, in consonance with time honoured principles involving natural justice, if no more, the K.B.CA. should be bound to hear the other affected parties before making an order of condonation, if at all. Secondly, the notice of K.B.CA., which is a defendant in Suit No.625/88, still holds the field and has not, so far, been adjudicated to be contrary to law or without lawful authority and if a relief is granted whereby such notice is circumvented or by passed that will amount to decreeing that Suit before it has even become ripe for grant of any decree and, such exercise is impermissible except in the rarest of circumstances, none of which are deducible in this case. Lastly, as observed by my learned brother Saleem Akhtar, J., in the case of Mst. Hava Bai ibid, any such approach would lead to multiplicity of proceedings and would not be in aid of justice.

12. It is next urged that Injunction, if at all, may be confirmed only in relation to construction in the area abutting the plot of Mst. Nawab Begum. I am afraid, even this cannot be done, at this stage, for K.B.CA. notice regarding all the alleged contraventions still holds the field and besides, how far Nawab Begum's rights do not extend is still to be seen.

13. Resultanly, the plaintiff in Suit No.611/88 has established a prima facie case. That she would be ‑exposed to irreparable loss, in the event the order of injunction, earlier granted, is not confirmed, is supportable on the premises that if the defendants in Suit ‑No.611/88 are permitted to complete the structure that single circumstance would lead to multiplicity of proceedings, even if the referred suit is decreed, which may prove to be endless. Further, on completing the structure and housing inmates‑ therein, such loss as the plaintiff may suffer, would not be capable of calculation in terms of money. As to balance of convenience, all that may be said is that such balance always lies in maintaining and continuing the state of things which would be just and most warranted on the facts of a given case and continuation of which would be in the interest of advancement of justice. This qualification the case of the plaintiff in Suit No.611/88 seems pre‑eminently to fulfill.

14. As such, the ad interim injunction in Suit No.611 of 1988 would stand confirmed and C.MA. No.4308 of 1988 in that behalf stands granted. As a sequence and correspondently, C.M.A.No.4370 of 1988 in Suit No.625/88 would stand dismissed, since plea of Injunction therein does not satisfy the requirements of Order 39 Rules 1 and 2, C.P.C. AA/N‑200/K Order accordingly.