2001 PLP 92 (MLD)

Mansoor Ahmed Khan for Defendant No.2. Ikram Siddiqui for Defendant No.

3. C.M.A. No. 1341 of 1997. This C.M.A. substituting the names of legal heirs of the plaintiff owing to his death on 23‑12‑1996 is granted by consent. Let amended title be filed in office within 14 days from today. C.M.A. No. 3601 of 1995. In this suit for declaration, permanent injunction and damages, plaintiff a neighbour of defendant No.1 seeks a restraint order against defendant No.1 from transferring her property and from raising any further construction thereon. A restraint order is solicited against KBCA and KDA from issuing completion plan or processing the file of defendant No. l is any manner. Lastly a restraint order is prayed against defendant No.4 Cooperative Society from issuing no objection certificate for transfer of the property belonging to defendant No. l to anyone else.

2. Essentially plaintiff's case as set up in the plaint in that he is the next door neighbour of defendant No. l who has raised construction on her plot beyond the approved plan and infringed easement rights as the right to air and light. The main grievance is that construction has been raised in the open space and length of boundary wall has been raised obstructing the passage of air. '‑'

3. In the written statement as well as counter‑affidavit filed by defendant No.' 1 allegations have been denied and it is said that the construction t& been raised with minor deviations, for regularization whereof defendant No. l applied to the KBCA and paid fees for regularization on being asked to submit regularization plan. All other allegations with regard to invasion of right of easement have been disputed and denied.

4. Defendant No.2 has filed a written statement taking the position that construction has been completed and completion certificate in respect of ground floor has been duly issued while completion plan in respect of first floor is under process. On receipt of a complaint from the plaintiff a notice was issued to defendant No. l who approached for approval of regularization plan for which seven days period was allowed. In the written statement filed by defendant No.3 i.e. KDA while legal issues have been raised challenging the maintainability of the suit for want of statutory notice and the absence of any cause of action no comments have been made on the facts of the case and the attitude of the defendant is that of an unconcerned party.

5. After hearing learned counsel for parties and going through their relevant pleadings as well as the report of the Nazir, it is evident that the construction on the plot of defendant No. l has been completed before the filing of the suit and even fees for regularization deposited with KBCA prior to the filing of the suit. There is thus, no point in tendering defendant No. l from raising any further construction at the site which is obviously not in progress. As to the invasion of the right of the plaintiff with regard to easement, the question cannot be deliberated and finally decided at this stage of the suit and the same might be decided only after appropriate evidence is adduced by the parties at the trial of the suit. With regard to the restraint order against defendant No. l from disposing of her property to a third party, I see no reason and no right on the part of the plaintiff to seek such order as every person is entitled to hold, possess and acquire property in his own rights. At any event, prima facie, the plaintiff has no right and interest in the property owned, possessed and occupied by the defendant No.

1. Adverting to the question of issuance of completion plan or processing the building plan by KBCA, it is always open to the concerned authorities to deal with any matter within the four corners of law and within the sphere of their authority which cannot be restrained by process of an interim order pending the decision of the suit which is likely to consume a considerable period of time. Likewise I am not satisfied with the prayer for restraining the issuance of NOC or transfer of property to a third party on the part of the Cooperative Society against which no cause of action is shown to exist in favour of the plaintiff.

6. Examining the case of the plaintiff from all angles, I find hardly a prima facie case for the exercise of equitable and discretionary jurisdiction. Application for injunction is, therefore, dismissed. Nazir references dated 15‑5‑1996 & 24‑8‑1996 and statement dated 4‑12‑1997. With the decision of the injunction application, Nazir's references as well as statement dated 4‑12‑1997 stand disposed of. Q.M.H./M.A.K./S‑62/K Application dismissed