P L D 1977 Karachi 1076 (PLP)

HAMZO KHAN M. KURESHI, J.‑This Revision Application is directed against the order dated 29‑7‑1976 passed by the learned I Additional District Judge, Karachi, Setting aside the order of the I Senior Civil Judge Karachi, who had granted temporary injunction to the present applicant/plaintiff against the respondent/defendants under Order XXXIX, rules 1 and 2, C. P. C. The Revision Application was presented on 2‑10‑1976. This Court ride order dated 16‑11‑1976 granted an ad interim injunction to the applicant with notice to the respondents. On 17‑1‑77 the revision application was dismissed for want of prosecution on account of the absence of the applicant and his advocate and the interim order was vacated. On 20‑1‑77 the learned counsel for the applicant filed application under Order IX, rule 9 read with sections 141 and 151, C. P. C. requesting to restore the revision application dismissed ex pane on 17‑1‑77 and also to grant ad Interim status quo till' the disposal of the revision application. This application eras heard 31‑1‑77 and a notice was ordered to issue to the respondents and in the meantime a status quo was maintained.

2. On 12‑7‑77 the Court ordered that the restoration application and the main revision petition be heard together in view of the urgency of the matter on account of the heavy rains in Karachi and also the expected heavy Monsoon Season. It was further observed that the petition would stand disposed of In case the status quo order already granted was vacated.

3. The applicant's Advocate, Mr. A. Rauf, has filed his personal affidavit, explaining his absence. He has stated that on 17‑1‑77 he had cases before 4 other Benches of this High Court and he found in the morning that his case in this Court was down below in the cause list, therefore he went to attend other cases in other Courts. He further states in the affidavit that "At about 11.00 a.m. I was with Mr. Khalid Hameed, Advocate for some of the respondents and we agreed to obtain the consent order for taking up the injunction application alongwith the main case with a request to fix an early date . . . . . . . . . . . . I requested Mr. Khalid Hameed to request for time for my return or obtain the above consent order." Mr. Rauf has further stated that he was actually busy before other Benches upto 1‑30 p. m. and thought that Mr. Khalid Hameed, Advocate must have either taken a date or obtained the consent order. He was however informed on 18‑1‑77. by Mr. Ahmed All, Clerk of Mr. Liaqat Merchant, Advocate, that his application has been dismissed. The Advocate has further submitted in the affidavit that ho was conscious of this case and had come to the Court for a number of times but it was due to his engagement in other cases that he was not present. The above affidavit is contradictory in terms. If the advocate was busy before other Courts upto 1‑30 p.m. he could not have got an opportunity to come to this Court. If he came to this Court he should have informed the Court about his‑difficulty or at least left a ship with the Reader explaining his inability to attend. It appears he took the Court for granted by asking Mr. Khalid Hameed either to obtain a consent order or get another date. Neither Mr. Khalid Hameed nor Mr. Ahmed Ali Clerk have filed affidavits to support the above contentions of Mr. A. Rauf He may be busy in other Courts on that day but he had no reason to neglect this Court. The explanation is neither plausible nor convincing. It appears the learned advocate took this Court for granted and thought that his matter would automatically be adjourned due to his absence. This is hardly a commendable attitude of a Senior Advocate like Mr. A. Rauf. I am not therefore inclined to restore the Revision Application and maintain the order passed by this Court on 17‑1‑77.

4. However, even on merits, I find that the applicant has no case. He is in occupation of the ground floor of the building constructed on Plot No. 14‑15/B. R.

5. Moolchand Street, Kharadar, Karachi and is said to be carrying on Transport business there since last 18 or 19 years. He is using the promises as a godown. This building was an evacuee property and has been transferred by the Settlement Department to respondents Nos. 2 to 8 who call the applicant as a trespasser. The applicant has denied their title and there is a serious dispute between the parties over the title and possession of the said premises some cases are pending between them. The present dispute has arisen because the K. M. C. (respondent No. 1) has given notice to' the applicant to vacate the premises as it is in a ruineous and dangerous condition and they would therefore demolish !t. He has filed Suit No. 872/74 against the K. M. C. and the owners of the building for declaration that it is a strong stone structure and is safe for 50 years more. Along with the plaint he also filed application for injunction under Order XXXIX, rules 1 and 2, C. P. C. He was granted temporary injunction by the trial Court on the strength of the site inspection notes of the learned Senior Civil Judge who was of the view that the promises occupied by the applicant was neither ruineous nor dangerous as liken wet cot a single erect either in the walls or in the roof. The applicants main contention is that the K. M. C. (respondent No. 1) have without any notice to him or other occupants of the same building or without an inquiry threatened to demolish the building and that K. M. C. was in collusion with the owners of the building. The trial Court confirmed the injunction on 21‑9‑1975 as a result of the site inspection of the premises The respondents preferred two appeals before the learned I Additional District Judge, Karachi, who after hearing the advocates of the parties, set aside the order of the trial Court vide the impugned order dated 29‑7‑1976.

5. The respondents have vehemently opposed this revision application and produced several documents which are on record. They have also produced the notice dated 5‑3‑1969 issued by the K. M. C. to the owners of the said building with a copy served on the applicant on 13‑3‑1969. This notice clearly shows that the K. M. C. on inspection of the building deems that the building described and detailed thereunder is in a ruinous stage and is likely to fall and/or is dangerous to the inhabitants of the said building and/or neighbouring buildings and the occupants thereof and/or also to the passers‑by. The K. M. C. directed the owners to show sufficient cause within 3 days and If it was not found sufficient they should demolish the dangerous building within 7 days. The notice further mentioned that the said structure shall be demolished by the Corporation through its agency after the expiry of the 7 days if no sufficient cause was shown. The contents of the notice disclose that its copy was sent to all the occupants of the ground floor, 1st floor and 2nd floor of the said building. The applicant is admittedly the occupant of the ground floor and his name finds place at the top of the notice. It was served on him on 13‑3‑1969 as shown by the document produced by the respondent K. M. C. On 22‑11‑1969 the K. M. C. issued another notice (Annexure 3) to the applicant stating that the Corporation intended to demolish the said structure just after 24‑ hours and therefore he should remove himself and his property from there within the proposed time failing which he and his property shall be forcibly removed and the Corporation shall not be responsible for any loss of property or injury to any person Such notices were also issued to the occupants of the lot floor and 2nd floor of the same building. It appears that on receiving such notice the occupants of 1st and 2nd floor filed a suit against the K. M. C. in October or November 1969. That suit was accompanied by an application under Order XXXIX, rules 1 and 2, C. P. C. It appears that the application was dismissed in default on 10‑11‑1969. It was again repeated on 11‑3‑1974 as a squad of the Corporation bad gone to the site to demolish the building. The learned Civil Judge dismisses the said application. On appeal by the plaintiffs in that suit the learned Additional District Judge inspected the site and made observations in the notes that the "building in question appears to be in ruinous condition and was likely to collapse at any moment" He therefore dismissed the appeal and rejected the injunction application. These plaintiffs filed Revision Application No. 150/1974 in the High Court which was also dismissed by my learned brother, Agha Ali Hyder, J on 28‑3‑1975. The present applicant has filed the suit for declaration and injunction in 1914, being No. 872/74. In fret his Lordship has finally decided the case and has set the dispute at rest, The photo copy of the order of Mr. Justice Agha Ali Hyder is on record, This order is a complete answer to the contentions raised in the present revision application. His Lordship has made the following observa tions:‑ "Further, the fact remains that the "Building" was inspected by the Additional District Judge and the perusal of his inspection note, part of which had been reproduced in his order, shows that apparently it was beyond repairs" The order pertains to the entire building situated on Plot No. 14‑15/B. R. 5 Moolchand Street, Karachi. In this order it is mentioned that the notice issued by K. M. C. on 13‑3‑1969 to the owners and occupants of the building bad clearly mentioned that the building was in ruinous condition and therefore, the owners shall demolish it within 7 days. This was the same notice of which I have made a mention above. This notice clearly shows that the ground floor as well as the let floor and the 2nd floor of the building were in a dangerous condition. Individual notice was also served on the applicant on 13‑5‑1909. Another notice dated 22‑11‑1966 was also issued to the applicant requiring him to remove his property within 24 hours from the ground floor occupied by him. This notice was also served on the applicant on 26‑11‑1969 as shown by Annexure 4 of the document produced by K. M. C. In spite of these two notices served on the applicant, he did not file any suit, probably because be did not thinly It necessary at that time to resist the action of the K. M. C. The other tenants however, filed the suit in 1968 bat failed to get injunction against the K. M. C. They contested the revision application in this Court which, was decided against them on 28‑3‑1975. The applicant had a common cause of action against K. M. C. at that time by virtue of the two notices having been served on him but he chose to keep silent till 1974. Since the question regarding the entire building was decided by the High Court in the Revision Application No. 150/74 with observations that the building was actually in ruinous condition and that it was within the powers of in the K. M. C. in the public interest to demolish such construction. I have no option but to follow the said decision with which I am In respectful agreement. The above decision was based on the ruling of the Supreme Court reported in P L D 1961 S C

157. The learned Civil Judge has' wrongly held that the Revision Application No. 150/1974 pertained to 1st and 2nd floors only. It was with regard to the entire building including the ground floor occupied by the applicant.

5. The learned counsel for the applicant has mainly relied on the inspection note of the learned lot Senior Civil Judge, who was of the view that the premises occupied by the plaintiff/applicant was not in a dangerous or delapidated condition. This site inspection note Is in conflict with the Inspection :Vote of the learned Additional District Judge. Karachi who visited the said building in 1969. It was only the personal opinion of the learned Senior Civil Judge who is not an expert on the subject. The K. M. C. is intending to demolish the building in the public interests and it is presumed that they must have adopted the proper procedure before B coming to that conclusion. The K. M. C. has issued public notices published in Daily Dawn dated 20‑6‑1976 and 4‑7‑1977, copies produced, insisting that the ground floor of the said building was in dangerous condition. Respondents Nos. 2 to 8, who according to their version, are the owners of the said building have also stated that it was in a dangerous condition and should be demolished by the K. M. C. in the public interests. If there is any dispute between the applicant, who calls himself statutory tenant, and the owners of the building they can have recourse to the proper legal remedy available to them but the K. M. C. cannot be prevented from discharging its public duty indefinitely lest the building may fall at any time due to rain and weather and Cum some loss of life or damage to the neighbouring property which would be an irrepairable loss not to the applicant but t the respondents and the general public. The balance of convenience in the light of the above facts is also in favour of the respondents and not in favour of the applicant. He has failed to make out a prima jade case and I fin no reason to interfere with the order passed by the learned Additional District Judge, though on different grounds.

7. I, therefore, find no force in this revision application even on merits and dismiss it. The restoration application is also dismissed and status quo vacated. Each party is, however, left to bear his own costs. S. A. H. Petition dismissed.