BADRUNNISSA Versus ABDUL AZIZ

ORDER

1. This is a suit for a permanent injunction against the defendants. The facts leading to the filing of the above suit are that the two plaintiffs are the co- owners of a bungalow bearing No.68 Garden East, and that adjacent to the above bungalow on Plot No.70/1/1 the defendant No.1 is putting up a multi-storeyed building comprising 5 storeys in the form of 7 Blocks i.e. A to E. It may be observed that Block A is on the side of the plaintiff's aforesaid bungalow. It has been averred by the plaintiffs that in view of the circular issued by the Collector in 1938 prohibiting the construction of more than double storeyed buildings in Garden East area the approval to the defendant No.1's plan granted by the authority concerned for putting up more than two-storeyed building is in breach of the above circular and that the proposed construction would infringe the rights of privacy, light and air enjoyed by the plaintiff for more than 20 years.

(b) Mr. Muhammad Sharif learned counsel for the plaintiff has relied upon the fact that the ad-interim injunction granted by the lower Courts against the construction of more than two storeyed building was upheld by this Court in Misc. Appeal No.95/72 and Revision Application 166/77 and that this Court also granted an ad-interim injunction in Suit No.560/79. It has also been pointed out that though the Supreme Court had granted leave for appeal against the judgment m Civil Misc. Petition 95/72, but did not disturb the ad-interim order upheld by the High Court. According to the learned counsel for the plaintiffs M/s. Muhammad Sharif and Wadood the plaintiffs have a strong prima facie case in view of the above orders of this Court. On the other hand, it has been urged by Mr. Khalid Ishaque, learned counsel for the defendants that the present case is distinguishable from the above cases for the following reasons:--

(i) that admittedly the plaintiffs have themselves violated the above circular of 1938 issued by the Collector by putting up certain constructions on the third floor:

(ii) that the plaintiff had lodged a complaint with the Master Plan Department of the KDA and that in pursuance thereof a consent order was passed by Mr. Z.A. Nizami, Member (Technical KDA) Director Master Plan and Control Department KDA contained in his letter dated 23-9-19,79 (Annexure D/2 to the plaint).

(iii) that there exists a multi storeyed building very close to this site.

2. Whereas the learned counsel for the plaintiffs in reply to the learned counsel for the defendants' contention have urged that the plaintiffs have put up only one room on the third floor and that this trifling breach of the above circular of the Collector would not disentitle the plaintiffs to approach this Court for an equitable relief as the defendants are changing the nature of the construction by putting up multi-storeyed building instead of a bungalow. It has also been urged by them that the contents of the aforesaid alleged consent order cannot be relied upon as the contents thereof have not been proved in accordance with law. It was also urged by the learned counsel for the plaintiffs that the existence of some multi-storeyed buildings in the vicinity would not disentitle the plaintiffs to maintain the suit for the application for an inter locutory relief.

3. It may be observed that in suit No.372/80 which was also a suit of the same nature, I had ordered that the aforesaid suit and the other suits including the present suit involving common question of law should be fixed for final disposal within 4 months. In the aforesaid suit the application under Order 39 rules 1 & 2 C P C was disposed of upon the defendants' undertaking that they shall not put up constructions beyond 2 storeys in the block adjacent to the plaintiffs' bungalow in the said suit.

4. 2.(a) Reverting to the first contention that the plaintiffs having themselves contravened the aforesaid circular of the Collector of Karachi, are not entitled to enforce the same and cannot claim equitable relief, it may be observed that Mr. Wadood Advocate has referred to the Principles of Equity by Snelson, 24th edition, at page 584-5 in which the learned author relying upon the case of Besant v. Wood reported in 1879 (12) Chancery Division 605, has observed that:

5. "Thus a contracting party who fails to perform his part cannot obtain an injunction to restrain a breach of covenant by the other party, though an injunction will not be refused on the ground that the plaintiff could not be compelled specifically to perform his part of the contract or on the ground that he has committed only a trifling breach of covenant."

6. It may be observed that in the above English case the question in issue before the Court was about the custody of the minor and in that context it was observed that a trilling breach of the settlement between husband and wife would not disentitle a party to approach the Court for equitable relief. In my view prima facie there appears to be force in the contention of Mr. Khalid Ishaque that the plaintiffs having themselves contravened the aforesaid circular of 1938 cannot come to the Court to enforce the same. I would not like to express definitely on the above point as it may be an issue at the trial of the suit. However, it will suffice to observe that the above fact is an important fact for considering as to whether the injunction should be granted to the plaintiffs as prayed for or should it not be granted or should it be granted in some other form.

(b) Reverting to the second contention of the learned counsel for the defendants that the plaintiffs after having approached the Master Plan Department and after having consented to an order are not entitled to approach this Court for an equitable relief, it will suffice to observe that Mr. Sharif's contention that unless the contents of the letter in question are proved in accordance with law, no reliance can be placed upon the same, seems to be not without force. In this regard Mr. Sharif has relied upon the case of C.S. Gideon. Advocate v. State, reported in P L D 1988 S.C. 1, the case of Islamic Republic of Pakistan through Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan M.N.A, reported in P L D 1976 S.C. 57, the case of Mst. Rupa v. Choudhary Bhairaon Prasad, reported in 105 Indian Cases 353 and the case of Mian Tai Din v. M/s. Royal Engineering Works, reported in P L D 1967 Lahore 718.

(c) Reverting to Mr. Khalid Ishaque's third contention that there exists a multi-storeyed building in the vicinity of the plaintiff's plot, it will suffice to observe that it is an admitted position that on the plot adjacent to the defendant No.1's plot there is a multi-storeyed building, according to the plaintiffs comprising 4 storeys, whereas according to the defendant 5 storeys. Be that as it may, it is evident that there exists a multi-storeyed building comprising more than two storeys on a plot second to the plaintiffs' plot. The above fact is also one of the important considerations for deciding the plaintiffs' application.

3. In view it will be just and proper that the order of injunction may be modified to the extent that the defendants shall not put up construction on Block A which is the block adjacent to the plaintiffs' plot and that Block B shall be constructed in terms of the Director Master Plan & E/Control Department's aforesaid letter dated 23-9-1979. I accordingly modify the ad interim order and restrain the defendants from putting up any construction beyond two storeys in, Block A and also order that the defendants shall construct Block B which is adjacent to Block A in terms of the aforesaid letter dated 23-9-1979 which provides certain prohibitions. The application stands disposed of in the foregoing I terms.

7. M.Y.H./B-124/K

8. Ad Interim injunction modified,