2008 PLP 1511 (CLC)

SYED ASGHAR HAIDER, J.

The respondent lodged a scheme at Raiwind Road for construction of 160 apartments in a project commonly known as Shabbir Town. The petitioners purchased apartments in the said project, after being allured by the advertisement made by respondent, wherein several amenities including shops, mosque, parks, community center etc. were planned. The petitioners later discovered that respondent had deviated from the original site plan and had reduced the area of green parks as advertised in the project, and proceeded to raise construction of apartments on the area reserved for park. Aggrieved thereof, the petitioners filed a suit for permanent injunction with an application under Order XXXIX, rules 1 and 2, C.P.C. praying that further construction on the purported area of the park be stopped. The trial Court granted injunctive relief as prayed for. Aggrieved thereof the respondent filed an appeal, the order was reversed and the application for injunction was dismissed. Hence the present petition, by the plaintiffs/petitioners.

2. The learned counsel for the petitioners contended that the project, as advertised, was subject to a master plan, approved by the competent authorities, it included parks and other amenities, the respondent was bound to adhere to the same in letter and spirit and could not deviate but the respondent did not adhere to this plan and indulged into acts of omission and commission, converted the area reserved for park into a building and, as such the ingredients for grant of injunction were in favour of the petitioners, therefore, the order of the trial Court was in harmony and consonance with law while the order of the lower Appellate Court is patently illegal . In these circumstances, it be set aside.

3. The learned counsel for the respondent controverted the assertions of the petitioners and stated at the Bar that no deviation from the original plan has been carried out by the respondent, the park, as advertised, exists on the site and can be got inspected and examined, the portion referred to by the petitioners as a park, in fact, was not the property of the respondent and, therefore, it could not hold the same and the same can be demonstrated from record. Therefore, the impugned order is completely in consonance and harmony of law.

4. I have heard the learned counsel for the parties at length.

5. The learned counsel for the petitioners and the learned counsel for the respondent have referred to various documents and photographs to augment and prove their viewpoint. From the arguments addressed today it is clear that both parties hold different viewpoints qua the dispute in hand regarding master plan, site plan etc., therefore, the matter needs to be appraised by evidence and requires a detailed inquiry, where both parties should have opportunity to prove their respective stances by leading evidence, that stage is due shortly in the trial Court. As far as injunctive relief is concerned, it is discretionary and dependent upon three ingredients, prima facie case, balance of convenience and irreparable loss. In the current scenario, if construction is stopped it is bound to cause more inconvenience to prospective buyers, who surely would have made payments and expecting possession of apartments, in case of delay they would suffer inconvenience. In these circumstances, the balance of convenience lies in favour of the respondent and not the petitioners as other prospective buyers clearly outnumber the petitioner. Likewise there is no chance of any irreparable loss to the petitioners as they already have been allocated apartment and in case of deviation by the respondents in the site plan, they shall be liable for the consequences and amenable to legal action in accordance with law. Therefore, the ingredients for grant of injunction do not favour the petitioners, thus the impugned judgment is unexceptionable. The petition, therefore, has no merits and is dismissed. H.B.T./F-22/L Petition dismissed.