1983 CLC2118 (PLP)

(c) Permanent injunction against Defendants Nos, 1 to 4, jointly and/ or severally, and against their agents, employees, servants, res training them from approving and/or sanctioning the building plans for raising any construction of any commercial building or shops and restrain them from raising, constructing any residential building comprising more than two floors (ground plus one floor) on residential Plot No: D‑35*' Al‑Hilal Co‑operative Housing Society Ltd., University Road, Karachi, in any manner whatsoever and if building plans have been approved they shall be cancelled by defendant No. 3. (d) Injunction mandatorily directing the defendants, their servants, employees, agents, jointly or severally, to demolish and/or cause to be demolished any part of the commercial building or shops constructed on Plot No. D‑35 Al‑HiIal Co‑operative Housing Society, University Road, Karachi and/or any .part of multi‑storey building," and/or Alongwith the suit the Plaintiffs/Respondents Nos. 1 and .2 had filed an application for grant of injunction under Order XXXIX, rules 1 and 2 pray ing that the appellant and Respondents Nos. 3 to 5 may be restrained from raising and/or continuing to raise any construction on the plot of land bearing No. D‑35 situated in AI‑Hilal Co‑operative Housing Society Area on the University Road, Karachi pending disposal of the above suit Ad interim orders was also prayed for "in the interest of justice" in terms of the above prayer.

5. The grounds upon which the interim injunction was claimed are contained in the affidavit of respondent Haji‑ Abdul Karim in which he has stated that the construction of the multi‑storeyed building by the appellant on Plot No. D‑35 will infringe the right of the Plaintiffs/Res pondents No. 1 and

2. It has not been asserted either in the plaint or in the said affidavit as to what are the vested rights of the Plaintiffs/Respon dents which will be infringed if the multi‑storeyed building is raised by the appellant on the plot.. The main ground of the plaintiffs/respondents Nos. 1 arid 2 appears to be that Respondents No. 3 to 5 have illegally allowed the respondents No. 1 and 2 to raise multi‑storeyed building on the plot in question after having commercialized the plot. Appellant Haji Abdul Razzak filed objections to the injunction application of Respondents Nos. 1 and 2 and pleaded .that the suit was not maintainable, that it was barred by the provisions of K. D. A. Order; 1957 and Sind Building Control Ordinance, 1979, that he had purchased the plot in the year 1979 for the purposes of raising a multi‑storeyed building thereon after having obtained N. O. C. and permission from relevant authorities B and after getting the area commercialized through Master Plan Department of the K. D. A. It is also urged that .the relevant authorities had the powers to grant N.O.C. and permission for commercialization of the area. It is further urged that the suit has been filed by Respondents Nos. 1 and 2 in order to black‑mail the appellant who has invested huge amount in the construction raised on the plot after having demolished the existing house. It is further urged that the appellant shall suffer irreparable toss if the construction is stopped because be is obliged under the. law to complete the construction within a specified period of time and in the event of his failing to do so he will be subjected to penalty and legal consequences flowing therefrom. More than half of the property has already been booked by the appellant in favour of the intending allottees, which fact was in the knowledge of the plaintiffs/respondents.

6. The learned Single Judge after hearing the learned counsel for the parties allowed the injunction application of Respondents No. 1 and 2 in the following terms :‑ "In the facts and circumstances of the case I restrain the defendant No. 1 from constructing the building beyond the first floor. The defendant No. 1 is allowed to construct according ' to 'the approved plan and the building so constructed shall be restricted to ground floor and first floor. Defendant No. 1 is further restrained that before or during construction or after completing the construction as permitted by this order, defendant No. 1 .his agents, employees or representatives shall not transfer, sell, mortgage, lease, licence, hand over possession to any person or in any manner create any interest of third party in the building or part thereof. I further order that defendant No. 1, his agents, employees or representatives shall not use or occupy in any manner the\ building or any part thereof till further orders." The above conclusions were arrived at by the learned Single Judge on the basis of his findings that there was a prima facie case in favour of the plaintiffs/respondents Nos. 1 & 2, that balance of convenience is also in their favour and that in: case any injunction is not issued, irreparable loss shall be caused to them.

7. The learned Single Judge has granted the injunction application of the Plaintiffs/Respondents Nos. 1 & 2 mainly on the ground that they have got a prima facie case. He has further held that as they have a Prima facie case, therefore, there is likelihood of their suffering irreparable loss which question has been linked with they question of prima facie case.

8. So far as question of prima facie case is concerned, the main argument of the counsel for respondents Nos. 1 and 2 was that the K.D.A. had no power to alter Scheme No. 7 so as to permit commercialization of the building on plot in question which was allotted for a residential building. Reference may here be made to clause (8) of the lease deed of the plot in question which stipulates that the lessee i.e. the appellant shall not use the plot for commercial purpose except with the permission of the K. D. A. This means that the commercialisation of the plot was subject to permission of the K.D.A.

9. The plea of the learned counsel for respondents Nos. 1 and 2 before the learned Single Judge and also before us was that the power to permit alteration in the scheme could be exercised by _ K.D.A. only if the scheme had not been completed and that as soon as the scheme is com pleted, the K. D.A. becomes functus officio so far its power to alter the scheme is concerned. On this point the learned Single Judge has observed that there was no evidence whatsoever from their side as to whether Scheme No. 7 had been completed or not completed. The learned Single Judge further observed that since it was not proved that the scheme had not been completed, therefore, the K.D.A. had exhausted its powers in respect of alteration of the scheme. The question of prima facie case ‑was decided .by the learned Single Judge as follows:- "The entire controversy, rests on determination whether the K.D.A. has jurisdiction to alter the residential plot into a commercial plot. This fact as pointed out can be decided only after the evidence is brought on the record to show that scheme has not, been completed therefore at the moment it is not possible to express any. view on this point as it will affect the merits of the case. In the absence of any evidence that the scheme has not been completed there being no other provision that may have been pointed out, by the learned counsel for the parties that the K.D.A. has power to grant permission to convert the residential plot into a commercial plot it seems that the plaintiffs have made out a prima facie case."

10. It is a we 11‑established rule of the law of evidence that a party who asserts a fact, is to prove the existence of that fact.. If a party bases his case upon the existence of a certain fact then the burden of proving that fact is upon that party.‑ In the present case the fact of the completion of the scheme by K.D.A. has been asserted by Respondents Nos. 1 & 2, i.e. the plaintiffs. Hence the burden of proving the fact of completing of scheme No. 7 was upon the plaintiffs. In our view, for making out o a prima facie case it was required that the plaintiffs bring on record some material or evidence in that regard. We, however, find that there is no material or evidence on the record on behalf of the plaintiffs to suggest that the Scheme had been completed. Neither in the plaint nor in the counter‑affidavits that they have been filed by way of reply to the appellant's affidavits, the plaintiffs have asserted that the Scheme has been completed. Hence if the question of prima facie case is to be determined on the question of completion or otherwise of scheme No. 7, then on the basis of the state of record of this case, it has to be observed that there is no evidence or material in this caw at this stage to the effect that the Scheme has been completed. Then there is clause (8) of the . lease deed which gives the right to K.D.A. to commercialize the plot. In these circumstances, we are of the view that the respondents ‑1 and 2 had not made out a prima facie case.

11. We have found it difficult to agree with the learned Single Judge that a prima facie case was made out by respondents Nos. 1 and

2. As observed earlier, in our view no prima facie case has been made out. As the respondents Nos. 1 and 2 have not made out a prima facie case, they were not entitled to grant of a temporary injunction. This appeal is allowed and the order dated 27th October, 1981 of the learned Single Judge is set aside. The result is that C.M.A. 2485/81 (temporary injunction application) of respondents Nos. 1 and 2 in Suit No. 456/1981 stands dismissed. K. M. A. Appeal allowed.