1990 PLP 808 (CLC)

‑‑‑OXXXIX, Rr. 1 & 2‑‑‑Temporary injunction‑‑‑Appellants prayed for grant of temporary injunction against respondent to restrain him from raising any construction on his plot alleged to be in violation of terms and conditions attached thereto‑‑‑Plaintiffs had their building on ground floor plus two floors with permission to construct their fourth floor‑‑‑Respondent constructed fourth floor at his risk and subject to the decision of the suit‑‑‑Nothing existing on record that Building Control Authority had taken any exception to it‑‑‑Affidavits and counter‑affidavits riled by parties made it clear that respondent's building ground floor to third floor had been completed except its finishing‑‑‑Held, interference at such stage with completion of building would neither be just nor proper‑‑‑Grant of injunction against respondent thus was refused. Nissarally for Appellants. Khalid M. lshaque for Respondent. SALEEM AKHTAR, J.‑‑The appellants have challenged the order of the learned Single Judge passed under Order 39, rules 1 and 2, C.P.C. whereby their application was dismissed and interim order granted earlier was vacated. The appellants are neighbours of the respondent who are raising multi‑storeyed building on Plot No.407, Garden East Ouarters Babar Street Karachi. The appellants building is situated on Plot No.408, Babar Street, Garden East, which consists of ground floor plus two floors. The respondents have raised ground floor plus four floors out of which upto three floors the outer structure has been completed except the finishing, whereas the fourth floor is still under construction. It is not the case of the appellants that the construction raised by respondents is in violation of the interim order passed by the trial Court, therefore, whatever construction has been raised was raised at the time when interim order was not in operation. The main grievance of the appellants is that the plan has not been duly approved or sanctioned by the relevant authority, therefore, the building raised by the respondents infringes their right of privacy, light and air. In the instant application the appellants have sought the following relief:‑ "For the reasons submitted in the memorandum of appeal and the accompanying affidavit, it is prayed on behalf of the appellants that this Honourable Court may be pleased to grant and issue temporary injunction against the respondent, restraining the respondent, his agents, servants, partners, attorneys, contractors, Engineers, Architects, Workmen, and all persons acting for, through or under the respondent, from raising any construction on plot bearing Survey No.407, Sheet,G.R.E. Garden East Ouarters, Karachi, beyond Ground and First Floors in any manner whatsoever, and/or any construction on the said plot in violation of terms and conditions attached thereto, in any manner whatsoever till the decision of this appeal and the suit." From the affidavits and counter‑affidavits filed by the parties and photographs which have been brought on record, it is clear that the respondent's building ground floor to three floors has been completed except the finishing. Therefore, at this stage to infere with the completion of the building will neither be just nor proper. The matter is yet to be heard in appeal and by the learned trial Court, therefore, it is not proper to enter into the merits of the case. So far as the fourth floor is concerned Mr. Khalid M. Ishaque has contended that it is according to the approved plan and the respondents are constructing it at their own risk subject to the decision of the suit. To substantiate his contention the learned counsel has referred to the correspondence between the respondents and various functionaries of State and authorities. The correctness of this contention has been challenged by Mr. Nisarally. At this stage it is not proper to enter into the merits of the case, examine the record and give any conclusive finding. The appellants have their building of ground floor plus two floors, with permission to construct the third floor. Considering all these facts in our view it will not be just and proper to grant interim injunction as prayed in respect of construction consisting of ground plus three floors. So for fourth floor is concerned the respondents are constructing it at their risk and subject to the decision of the suit. There is nothing on record that the Building Control Authority have so far taken C any exception to it. The respondents are constructing at their risk and in case it found to be not according to the approved plan or without any valid permission from the relevant authorities consequences to the extent of its demolition may follow. But this can be done only after finally hearing the suit. In these circumstances, we are riot inclined to grant relief prayed for in these proceedings. Mr. Nasarally the learned counsel then contended that in order to protect the interest of the appellants the relief should be modified and the respondents should be restrained from transferring the possession of the (sic) this plea will require consideration .of additional facts. If the appellants would have raised this plea in the. application the respondents may have replied by filing counter affidavit. In the absence of this prayer in the application it is not proper to grant it at this stage. The appellant will, however, be free to make such application giving all facts so that the other side may not be taken by surprise. The application is, therefore, dismissed. Considering the facts and circumstances of the case the office is directed to fix the appeal for regular hearing within six weeks. M.Y.H./V‑18/K Petition dismissed