SARDAR BEGUM Versus DELHI MERCANTILE COOPERATIVE HOUSING SOCIETY LIMITED

ORDER

1. This order will dispose of two applications C.M.A. No.4040/95 arid C.M.A. No.4968/95, first moved by plaintiffs' counsel, under Order 39, Rules l and 2, C.P.Cread with section 151, C.P.C for restraining the defendants from changing the nature of Plot No. 332, Delhi Mercantile Cooperative Housing Society, Karachi, from residential to amenity/commercial and from raising any construction of a Marriage Hall and further restraining the defendant No. .1 from using the Plot No.332 from running a Marriage Hall or for any other commercial purposes. The latter application is filed by advocate for defendant No. 1 with the prayer to vacate the order. of ad interim injunction passed on 16‑8‑1995.

2. The brief facts of the plaintiffs' case as stated in the plaint, are that the plaintiffs are owner of bungalow constructed on Plot No.7-A/333, Delhi Mercantile Cooperative Housing Society, Karachi, where they are residing. Adjacent Plot No.332 is a residential plot and is also allocated for construction of a residential bungalow in accordance with Karachi Building and Town Planning Regulation, Part‑I. The defendant No. 1 has started construction of structure on the said plot which is being raised is contiguous to the wall of the plaintiffs' bungalow. The plaintiffs served a Registered AID notice, dated 11‑6‑1995 upon the defendant No. 1 to stop construction work of Marriage Hall on Plot No. 332 of the said Society. The plaintiffs also sent letter dated 19‑7‑1995 to Director‑General, K.D.A. and other concerned Authorities. Vide latter dated 24‑7‑1995 the K.C.H.S. Union addressed to the Advocate of plaintiffs, informed that the Plot No.332 has been converted into amenity. The case of the plaintiffs, further, is that the existence of a Marriage Hall shall be a public nuisance and also shall cause hindrance, congestion and obstruction to the smooth flow of traffic passing on the road by heavy parking on the sides thus causing imminent danger of substantial common injury, obstruction and annoyance to the public and physical discomfort to the plaintiffs and in general to the residence of the locality. The marriage ceremony is accompanied by high gathering of people of all shades and character and lasts till late in the night. Foods, music, noise and other side activities shall cause common injury, obstructions and annoyance to the people including the plaintiffs. The defendant No. 1 in collusion with the defendants Nos. 2 and 3 are raising construction of a Marriage Hall day and night. They are guilty of public nuisance. Plot No. 332‑A, Delhi Mercantile Cooperative Housing Society, Karachi, which is situated adjacent to Plot No.332 is already being used by defendant No.l for holding marriage functions etc, in the name of Gulistan Club. The partition wall between both the plots, had been removed so as to make these plots was one i.e. Gulistan Club, so that marriage functions may be held on both these plots. It is also the case of the plaintiffs that defendants Nos.2 and 3 cannot change the complexion of a residential plot to amenity of commercial arbitrarily. The plaintiffs had prayed for the following reliefs:‑‑

(i) Declare that Plot No. 332 D.M.C.H.S. is of residential nature and the nature and complexion of the same cannot be changed to the detriment of other residents of the vicinity, particularly the plaintiffs whose residential Bungalow is situated on the adjacent Plot No.333 D.M.C.H.S., Karachi, and if any such step has been taken by the defendants for conversion of the said plot into amenity or commercial, the same illegal and without jurisdiction and of no legal effect.

(ii) Restrain the defendants by permanent injunction from raising any construction except for a residential bungalow consisting of ground plus one storey strictly in accordance with the Karachi Building and Town Planning Regulations also restrain the defendant from changing the complexion of the plot in question.

(iii) Restrain the defendant No. 1 from letting or cause to be let Plot No.332 D.M.H.S. for folding marriage functions etc.

(iv) Direct the defendants by mandatory injunction raised on compulsory Open space etc., not authorised by the Karachi Building and Town Planning Regulation Parts I and II.

(v) Any other such additional/further relief or reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.

(vi) Cost of the suit. "

3. In support of this application, Muhammad Yousaf, plaintiff No.2 has filed his affidavit. One Muzzammil Ahmad Ferozi, Honorary General Secretary of defendant No. 1, has filed his counter‑affidavit, in which he denied the assertion of the plaintiffs and has stated that the suit is barred by sections 54 and 70‑A of the Cooperative Societies Act. He has further stated that the suit has been filed mala fidely by the plaintiff at the institution of the group hostile to the present set‑up of defendant No. l and prime object is to obstruct the extension, development, renovation and improvement of the Community Centre of defendant No. 1. It is further stated that the plaintiffs are estopped from agitating against the use of "Plot No.332" (the former number of Plot No. 1‑D) for marriage and other ceremonies, as the same is being so used for the last about 15 years without any objection or protest or complaint by the plaintiffs or by any of them, or by any other neighbour of resident of the locality. The defendant No. 1 was allocated Plot No. S.N.P.A.‑58 by Karachi Cooperative Housing Societies Union Limited, for amenity purpose, therefore, Community" Centre/Jamatkhana Gulistan" was constructed and established, which is meant for the use by the members of defendant No. 1 Society or members of Punjabi Soudagar Biradri, for various functions including marriages. It is being so used since about the year 1964 for the benefit of the members. The marriage ceremonies in Gulistan Club are allowed by defendant No. 1, on strict discipline with regard to holding of such functions so as to eliminate the possibility of an unreasonably noisy function. In this regard two conditions of the booking for marriage functions are made in the application form. Condition No. 8 prohibits the singing, dancing or playing of any sort of music in the marriage ceremony. The use of loud‑speaker is also prohibited. The persons who hold marriage functions in Gulistan fully cooperate and abide by this condition. Copy of the conditions of the booking has been filed as Annexure D‑1.

4. It is further stated in the counter‑affidavit that it was observed by the members of defendant No. 1, that in many functions, the number of guests exceeded the available space in Gulistan, therefore, necessity was felt for extending the area. In this connection, efforts were initiated in 1978, to acquire from Mrs. Asifa Anis her adjoining Plot No. 332, in exchange of amenity Plot No. PA‑59 of defendant No. 1, however, due to various reasons and cause, including the promulgation of Regulations about amenity plots, the proposal did not make any headway. Thereafter, negotiations were resumed for acquiring the said Plot No. 332, and the same were finalised in May, 1992. However, during such negotiations, with the consent, of said Mrs. Asifa Anees, Plot No. 332 was being used for marriage and other functions; in cases where additional space was needed and this practice continues for the last about 15 years, without causing any 'nuisance' to any person of the locality including the plaintiffs. Such acquisition of the plot by the defendant No. 1, for extending the Gulistan, was known to the members of defendant No. 1, including the plaintiffs and the same was also notified in the Annual Reports of defendant No. 1 for the years 1991‑92, 1992‑93 and 1993‑94. These reports were regularly sent to all the members including the plaintiffs. The photocopies of the relevant pages of the aforesaid reports have been filed as Annexures D‑3, D‑4 and D‑5, and the postal receipts of the reports sent to the predecessor‑in‑interest of the plaintiff, namely Shaikh Ismail Fazal Ellahi, as Annexures D‑6 and D‑7. After the successful conclusion of the exchange deal, with Mrs. Asifa Anis, defendant No. 1, through Karachi Cooperative Housing Societies, Union Limited, the request for the "change of land use' of the said Plot No. 332, from residential to amenity. For this purpose letter dated 14-10‑1992 (Annexure D‑8) was written to Director, Master Platt Development of defendant No.3, and a letter dated 7‑10‑1992 (Annexure D‑9) to Deputy Controller of Buildings (Planning Control) of defendant No. 2. As required under the law, public notices in respect of the proposed conversion were .published on 27‑2‑1993 in daily The News and Nawa‑e‑Waqt. No objections were filed by any persons in response to the aforesaid public notices. Thereafter, defendant No. 1, paid the demanded charges for change of land use to defendant No. 2, vide receipts (Annexures D‑11 and D‑12). After the completion of the requisite formalities, defendant No. 2 vide letter dated 14‑9‑1993 (Annexure D‑13) allowed the change of the land used of Plot No.332 into 'amenity' and also changed its number to "1‑D". In order to provide more space and better facilities to the members. The existing structure on the plot was removed just to convert into open tiled floor and the office of Gulistan and toilets are also being constructed on this old plot. The Honorary Secretary of defendant No. l has further stated that none of the construction raised by defendant No. l on the new plot has any obstruction or deprivation to the plaintiffs of the peaceful use and enjoyment of then adjoining bungalow. Just at a distance of about 2 furlongs from this plot there exist two marriage places, namely, Sada Bahar and Gul Bahar, were marriage ceremonies are held on large scale and on commercial basis, while defendant No. l does not ruts Gulistan on commercial basis, nor the facilities of holding marriage ceremonies are extended to the public at large. Therefore, it cannot be treated as marriage hall. The plaintiffs have got no prima facie and that balance of convenience is in favour of defendant No. l in view of advance bookings, already made, for holding marriage and other ceremonies in Gulistan, commencing froth 22‑9‑1995.

5. Muhammad Yousuf, the plaintiff, has filed affidavit‑in‑rejoinder, in which he has denied the contentions of defendant No.l. Counter‑affidavit has also been filed by Abdul Waheed, Deputy Controller of Building in the office of defendant No.2, in which he has denied the allegations made by the plaintiffs against defendant No.2. He has stated that Plot No.332 was originally a residential plot, which has been converted into amenity one by T.P. vide No.K.B.C.A/K.M.C/K.C.H.S/P.C‑6‑693/554, dated 14‑9‑1993, which is adjacent to Gulistan Club both the plots have been amalgamated for which notice has already been issued and action is under process and further that no approval for construction of marriage garden has been granted by defendant No.2. He has further stated that the plaintiffs have no prima facie case and that suit is barred under sections 16 and 20‑A of the Sindh Building Control Ordinance, 1979.

2. Mr. Syed Saeeduddin Nasir, learned counsel for the plaintiff has relied upon the cases of Abdul Razak v. Karachi Building Control Authority and others, reported in (PLD 1994 SC 512), Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others, reported in (PLD 1993 Karachi 631), and Anjum Imdad Qarza, Chak No.105‑R.B. v. Abdul Haq and others, reported in PLD 1960 (W.P) Lahore 273.

3. Mr. H.A. Rehmani, learned counsel for defendant No, l has relied upon the cases of Farida v. Prince Apartment Cooperative Housing Society and 2 others, reported in 1984 CLC 2914, Zia‑ur‑Rehman Alvi v. Messrs Allahad Cooperative Housing Society Limited and 2 others, reported in PLD 1995 Karachi 399, and Multiline Associates v. Ardeshir Cowasjee and others, reported in 1995 SCMR 362.

4. I have gone through the entire material available on record and the cases relied on by the counsel for the parties.

5. As far as contention of Mr. H.A. Rehmani, Advocate for defendant No.1 that the suit is not maintainable under sections 54, 70 and 70‑A of the Cooperative Societies Act, is concerned, there appears no substance in this argument. Neither section 54 of the Act regarding arbitration nor section 70‑A, prima facie obstruct the present suit, regarding construction of Shadi Hall or creation of nuisance to the locality, as the above section relates to the dispute touching the business of the Society. Section 54 of the Act reads as under:

6. "Section 54.‑‑Arbitration.‑‑If any dispute touching the business of a society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant to the society) arises‑‑

(a) between members or past members of the society or persons claiming through a member or past member, or

(b) between members or past members or persons so claiming and any past or present officer, agent or servant of the society, or

(c) between the society or its committee, and any past or present member of the society, or

(d) between the society or its committee, and any past or present officer, agent or servant of the society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society,

(e) between a financing bank authorised under subsection (1) of section 34 and a person who is not a member of a society, it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who .shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.

7. A dispute shall include the question whether a person is or was a member of a society and also claims by 'a society for debts or demands due to it from a member, past member or non‑member or the heirs or assets of a past member or non‑member whether such debts or demands be admitted or not:

8. Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending proceedings the Registrar shall take action as laid 'down paragraph 1 of this section. "

9. In view of the legal position, the suit as well as injunction application do not appear to be barred by the abovementioned section of the Cooperative Societies Act. The cases relied upon by the learned counsel for the defendant No. 1, are therefore, not relevant in present suit.

10. The grant of a temporary injunction under Order 39, Rules l and 2, C.P.C. is entirely a matter within the discretion of the trial Court, as compared to a declaration and permanent injunction which is to be decided in accordance with the provisions of Specific Relief Act, 1877, on the facts proved by both the parties.

11. The discretion of granting or otherwise temporary injunction is to be exercised on consideration of the following points:

(a) Whether any of the parties have a prima facie case?

(b) Balance of convenience and inconvenience on both sides?

(c) Whether any of the parties have shown that irreparable loss would occur if the temporary injunction is not granted or that the refusal to grant of temporary injunction would defeat the object of the suit.

12. Here the bone of contention between the parties is that the Gulistan Community Centre, has acquired the disputed Plot No.332, and have amalgamated the same with the centre by removing wall, in order to convert the same into Marriage Hall/Garden, for commercial use. The Gulistan Centre is already allowing wedding functions to be held there. By amalgamating the plot in question with the Gulistan Centre, for the purpose of using the same for marriage functions, the nuisance will increase many‑fold, and the plaintiffs whose house is adjacent to the disputed plot, will have to pass sleepless nights apart from the increase in environmental pollution and traffic jams.

13. Such commercial conversion in purely, residential locality is considered to be a nuisance affecting peace of entire locality. Even if the rules and bye‑laws are framed by the Defendant Community Centre to minimise this nuisance, there is no guarantee that the rules will be positively obeyed. Defendant No.2 (Karachi Building Control Authority) in their counter‑affidavit have also stated that the plot in question has been amalgamated illegally with the Gulistan Centre and that no approval of construction of Marriage Garden has been granted by the concerned authorities. The disputed plot was lying vacant since last so many years and heavens will not fall if interim injunction is granted for the time to come, till the conclusion of the suit.

14. On the other hand if Marriage Garden/Hall is allowed to be constructed at hectic speed, it will be ready and working before the suit even reaches for recording of evidence. The arguments that the marriage functions are being held in Gulistan Centre or that the transfer of plot for amenity purpose by the local authorities are not the factors which can affect the legal decision by this Court or defeat the ends of justice.

15. The plaintiffs have successfully established that they have got the prima facie case and that the balance of convenience goes in their favour. Only the plaintiffs shall suffer the loss in the present circumstances if the defendants are allowed to hold the marriage functions in the adjacent plot of their house. For the aforesaid reasons the status quo order passed earlier is confirmed and the defendant No. I is restrained from raising any construction of Marriage Hall on the disputed plot and using the same for Marriage Hall or for raising any unauthorised construction thereon till the decision of the suit. C.M.A. No.4040 of 1995 is accordingly allowed.

16. Consequent upon the above order C.M.A. No. 4968 of 1995 moved on behalf of defendant No. 1, for vacation of the stay order, is dismissed.

17. A.A./S‑32‑K Order accordingly.