1989 PLP 1946 (CLC)

Iqbal Kazi for Defendants. By this order I will dispose of C.MA. No.2394/89 in Suit No.356 of 1989 under order 39 rules 1 & 2, C.P.C., wherein the plaintiff prays for interim order restraining the defendants, their agents, attorneys, contractors, etc., from raising construction on Plot No.2/141‑Q, Off Sir Syed Road, PECHS, Karachi, in violation of the approved plan. The plaintiff is a resident of Block 2, Sir Syed Road, PECHS, Karachi, and his grievance is that the defendants have been illegally constructing commercial building in the area and he apprehends violation of his easement rights of fresh air, light, etc., and of privacy. The said building under construction will be a cause of nuisance to him and will materially interfere with the enjoyment of his life, property and privacy. Presently, it is contended that the residents of his locality enjoy lots of fresh air, light and domestic privacy. The defendants contend that the plaintiff is residing at a distance of approximately 250 ft. and hence there is no violation of the alleged rights of the plaintiff. It is denied by them that they are constructing a commercial building which in fact is intended to accommodate members of their own family in separate units in the building. It is stated by them that on 29‑11‑1988 they had deposited a sum of Rs. 20,0(1(1 with PECHS Society, and on 17‑12‑1988 they had deposited a sum of Rs.65,000 with Karachi Building Control Authority as fees for construction of their second floor. They have also submitted revised building plan for ground floor plus first and second floors which was approved by PECHS on 1 12‑1988 and by the Karachi Building Control Authority on 20‑12‑1988. The defendants deny that the plaintiff shall be deprived of enjoyment of fresh air, light and domestic privacy as development of the area, provision for road, sewerage, water line and other amenities have been provided for. The defendants, in short, have emphatically denied that they have been carrying on construction in violation of the approved plan or that they intend to raise a commercial building on the plot as alleged. During the course of the hearing of this application the defendants undertook not to transfer the units/flats in the building under construction to any one else except to their own family members in order to manifest their bona fide that they are neither constructing the building as a commercial building nor they have any commercial purpose. They further undertook to complete the construction strictly in accordance with the approved plan as per Exh. D/3 for ground plus two floors only. Learned counsel for the plaintiff, however, was not satisfied with such undertaking given by the defendants and therefore I proceed to examine the application for interim injunction on merit. Learned counsel for the parties placed before me a number of decided cases on the questions involved including Nasir Ahmad v. Hafiz Mohammad Ahmad and 17 others 1984 CLC 340; Hawa Bai v. Haji Ahmad and another 1987 CLC 558; Vazir Ali v. Hanif NLR 1989 UC 325; Yaqoob Ahmad and 4 others v. M/s. Jason Construction (Pvt.) Ltd. and 2 others 1989 CLC

739. Special emphasis was laid by Mr. Z.U. Ahmad on 1987 CLC 558, in which my learned brother Saleem Akhtar, J. had held that if the proposed construction (unauthorized) is raised on the first floor, it will affect the plaintiff's right of light, air and privacy and granted temporary injunction to the p13intiff. In that case it was urged that the learned Judge did not accept the undertaking offered by the defendant and held that "it will amount to be passing the mandatory requirement of law of obtaining approved plan before raising construction and clothe it with legitimacy under the order of the Court. "Similarly, my learned brother Abdur Rehman, J., in 1989 CLC 739, while granting interim injunction to the plaintiff held as follows: "I am satisfied that the plaintiff has made out a prima facie case and that the construction of the building by the defendants Nos. 1 & 2 to such a height and in such a manner, which is clearly in violation of the approved plan, is bound to cause injury and damage to him and his property which is irreparable." However, in 1984 CLC 345, a Division Bench of this Court in a High Court Appeal had held that "mere assertion of a supposed right is not sufficient for obtaining prohibitive order. The plaintiff have to establish by evidence they have acquired any rights of easements and prove that their privacy is or will be violated." In a recent judgment reported in NLR 1989 UC 325 my learned brother Haider Ali Pirzada, J. following 1984 CLC 345, held as under:‑ "The learned counsel for the plaintiff urged two more grounds, one of infringement of right of easements of light and air and another violation of privacy. These have to be established by the evidence that they have acquired any rights of easements. Mere assertion of a supposed right is not sufficient for obtaining temporary injunction. The plaintiffs have to prove that their privacy is or will be violated." That being the position Mr. Iqbal Kazi, learned counsel for the defendant, urged before me that neither 1987 CLC 558 nor 1989 CLC 739 are applicable to the facts of the cases. Whereas in both these cited cases the defendants in clear violation of section 6 of the Building Control Ordinance, 1979 namely without required sanction and approved plan had been carrying on construction, whereby the rights of easement and privacy of the plaintiffs were, clearly violated, it is a matter of record that the defendants in the present suit have been raising construction as per sanction and in accordance with the duly approved plan and neither the rights of easement nor of privacy of the plaintiff j are being violated. It may be clarified and added that in none of the above cited judgments, I it has been said that an approved plan or no‑objection letter from the Karachi Building Control Authority will purport to take away the easement rights of a person. There is nothing in his which law states that the easement rights of a' person are subservient to the Building Control Laws or arc extinguished once a plan of a building is approved by the Authority. Reference may also be made to annexure D/4 being a letter of sanction/no‑objection to counter‑affidavit filed by the defendants issued by the Authority which inter alia states that "The building plan for the above‑mentioned plot attached is hereby approved and you are permitted to carry out construction on the said plot accordingly provided that the right of casement is a matter between the concerned parties with which the Authority has no concern Mr. Iqbal Kazi, learned counsel for the defendants, referred to me Annexure D to the defendant's counter‑affidavit in order to show that the plaintiff is residing at a distance of 250 ft. away from the site of construction. Two other Annexures being D/3 & D/4 to counter‑affidavit are revised approved plan and sanction letter (no‑objection letter) for construction of a residential building issued by the Karachi Building Control Authority to the defendants, which learned counsel for defendant brought to my notice. Next he drew my attention to the report and sketch subordinated by the official assignee of Karachi ‑,k ho was appointed as Commissioner by the Court from which the distance between site of construction and the plaintiff's residence may be ascertained and it can be shown that the plaintiff's rights as to casement and privacy will not be affected by the said Construction. Neither the sanction nor the approved . plan nor. Commissioner's report nor sketch have been called in question by the plaintiff. From the record before me the plaintiff has not been able to make out a prima facie case for interim injunction whereby his rights of easement and privacy arc violated. Similarly the balance of convenience is not on the side of the plaintiff and no irreparable loss will be caused to him if injunction is not granted. I accordingly dismiss the application with costs. M.BA./S‑425/K Application dismissed.