2003 PLP 100 (YLR)

Plaintiff has moved C.M.A. 4173 of 2002 under Order XXXIX, rules 1 and 2, C.P.C. seeking interim orders while the defendants have moved C.M.A. No.4989 of 2002 under Order XXXIX, rule 2(3), C.P.C. seeking attachment of the suit property being misusing of the interim orders by the plaintiff. Plaintiff instituted the suit with following prayer:‑‑ (a) Declaration that the ground + 4 construction existing on Plot No.64/3/2 admeasuring 110250 sq. yds. situated at Garden West Quarters, Karachi, is in accordance with the Building Regulations and Building Plan; (b) Permanent injunction restraining the defendants Nos. 1 to 3, their employees, agents and subordinates from demolition of the construction or any portion thereof on Plot No.G.R.W.64/3/2 situated at Garden West Quarters, Karachi, and/or from forcibly dispossessing the plaintiff his successors‑in‑interest and/or from sealing or interfering with the use and occupation and construction of the said building in any manner. (c) Cost of the suit; and (d) Any other and/or better relief which this Honourable Court may deem fit and proper under the circumstances to grant. Mr. Muhammad Ismail Memon, appearing for the plaintiff, today argued that the case of the plaintiff is covered under the provisions of the Sindh Ordinance No.37 of 2001 dated 3‑12‑2001 allowing regulation of certain constructions as provided therein. It was followed by subsequent notifications dated 10‑4‑2002 extending the dates for submission of application for regularisation to the competent Authority. Learned counsel has also placed a photocopy of newspaper clipping of Daily Star wherein it has been reported that the date of submission of cases for regularisation of 260 sealed and other illegally constructed building has been extended till December 3, 2002. The record shows that the construction was initially raised in pursuance of an approved building plan for ground plus one storey only which also included deviation and additional area and for the regularisation of this a sum of Rs.96,885 followed by another payment of Rs.25,000 for construction of another floor was made on behalf of Mst. Noor Jehan, the original owner of the property to whom the construction plan was issued. In the meantime the property is alleged to have been purchased by the present plaintiff under a registered sale deed dated 23‑1‑2002 registered in the office of Sub‑Registrar T‑Division IV‑Karachi. It appears that after such purchase additional second, third and fourth floors have been constructed. While the unauthorized construction was being raised, it was demolished by the officials of the K.B.C.A. on or about 6‑2‑2002 but the same was re erected and in spite of notices served with the last notice issued by the K.B.C.A. on 22‑4‑2002 the plaintiff managed to carry on the construction, re‑erected the demolished construction and after raising the construction up to the level of ground plus four floors he has now approached the Court seeking interim orders for protection of the unauthorised construction. A perusal of the Ordinance, dated December 3, 2001 reveals that it relates to such construction as existed on that date and were required to be regularised, subsequent construction raised thereafter in contravention of law without any approved plan cannot be protected under the cover of such Ordinance. Such illegal acts of the plaintiff carried on despite proper action on the part of K.B.C.A. cannot be protected by recourse to the present proceedings. In my humble opinion any construction raised after promulgation of the aforesaid Ordinance does not even fall within the purview of the Ordinance and it was promulgated only for the purposes of regularisation of certain existing structures. In view of the above this suit instituted on 28‑5‑2002 has no merits and the plaintiff has approached this Court with mala fide intentions without a valid cause of action. The reliefs claimed are also not covered under the aforesaid Building Regulations and cannot be allowed under the provisions of sections 42 and 56(d) of the Specific Relief Act, 1877, the plaint is accordingly rejected under Order VII. rule 11, C.P.C. Interim orders passed earlier stand withdrawn. S.A.K./B‑63/K Plaint rejected.