1984 PLP 859 (SCMR)

S. A. NUSRAT J.‑This petition for leave to appeal is from the judgment of the Sind High Court dated 6‑2‑1984 whereby the High Court Appeal of the petitioners was dismissed. The brief facts of the case are that the petitioners are the occupants/ transferees of the first and second floor of a building situate on Preedy Street, Karachi, whereas the respondents are the owners and occupants of its ground floor. The petitioners filed a Suit No. 241 of 1982 against the respondents in the High Court for injunction and made therein an application for interim injunction. The injunction sought was to the effect that the respondents be restrained from making any additions and alterations in the existing construc tion of their tenement on the ground floor. Later Suit No. 592 of 1983 was filed by one Rafiq Ahmad, a building contractor, against the petitioners for permanent injunction wherein also an application was moved seeking interim injunction to the effect that the petitioners may be restrained from interfering or causing hindrance or obstruction in the execution of the work of construction to be carried on the ground floor of the building without due process of law. The two applications filed in the said suits were heard and disposed of by a common order by a learned Single Judge of the High Court on 1‑1‑1984. The injunction sought for by the petitioners was refused while the application for injunction in Suit No. 592 of 1983 of the contractor Rafiq Ahmad was allowed. It appears from the order of the learned Single Judge that a duly approved plan by the Building Control Authority for the proposed construction was produced before him and its genuineness was not challenged by Mr. Mahmood Hussain, learned counsel, who appeared on behalf of the petitioners. The order of injunction in the suit of the contractor was granted by the learned Single Judge in the High Court subject to the condition that before making the proposed construction the building shall be inspected by a licensed architect to be appointed by the Nazir of the High Court who should certify that the proposed construction is or is not likely to affect adversely the safety of upper floor premises and the right of support enjoyed by the occupants of the same in any manner. This order was challenged by the petitioners before a Division Bench of the High Court which was dismissed as per impugned judgment. We have heard the learned counsel for the petitioners at some length and I have also gone through the two orders passed by the learned Single Judge and of the learned Division Bench of the High Court. In the order granting injunction in the suit of the contractor the interest of the petitioners was adequately safeguarded by providing that before making the proposed construction a licensed architect appointed by the Nazir of the High Court was to first inspect the building that the safety of the occupants of the upper floor was not adversely affected. The learned Division Bench of the High Court found, and rightly so, that such a provision made in the order of the learned Single Judge was adequate for the purpose of safeguarding that interest of the petitioners. The caveators/respondents have produced a copy of a certificate issued by one Muhammad Shahid, licensed architect and engineer, which was issued pursuant to the direction contained in the order of the learned Single Judge, after the inspection of the disputed premises. According to the said certificate, the building was inspected on 22‑1‑1984 by the architect in the presence of the Nazir of the High Court. The direction contained in the order of the learned Single Judge was thus duly complied with and in case the petitioners had any grievance against the certificate issued by the architect, they should have filed objections against the same which was apparently not done by them. It was, however, contended by the learned counsel for the petitioners that his clients were not informed about the issuance of the certificate nor they were present at the time of the inspection of the site by the architect. Be that as may, the petitioners were fully aware of the condition imposed by the learned Single Judge of the High Court in his order granting injunction, which was for their benefit, and it was, therefore, for them to have seen to it that the same was complied with. For the reasons mentioned above, we find no merits in this petition which is dismissed. S.Q. Petition dismissed.