NASEER AHMED vs Hafiz MUHAMMAD AHMED AND 17 OTHERS

' ALLY MADAD SHAH, J.-This is an appeal under section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 (Ordinance No, X of 1980). It is directed against an order, dated 12th October, 1982 passed by a learned Judge of this Court, sitting on original civil side, in Suit No, 278 of 1982 filed by the respondents Nos. 1 to 16 against the appellant and the respondents Nos. 17 and 18 for the reliefs of declaration, permanent injunction and damages.

2. The case of the respondents Nos. 1 to 16 (the plaintiffs in the suit), briefly stated, is that they are allottees/transferees/lessees of certain plots at Malir Township, Karachi. The appellant also is an allottee/transferee/ lessee of two plots bearing Nos. D-2/37 and D-2/38 in the same township. It is stated that the plots have been issued out/transferred for residential purpose. It is alleged that the appellant has raised a double storey construction on the plots allotted to him against the approved plan of the township and he intends to establish thereon a washing factory and has arranged, through the Karachi Electric Supply Corporation (the respondent No, 17), a high powered electric connection and has taken other necessary steps in that behalf. It is further alleged that the installation of the washing factory is not only contrary to the spirit of the Scheme for rehabilitating displaced persons there but it will also be hazardous to the living of inhabitants of the neighbouring plots and will cause invasion on their rights of easements of light and air and disturb their privacy.

They seek judgment and decree for- "(a) Declaration that the K. D. A. Malir Township Scheme wherein the plots and houses of the plaintiffs and the defendant No, I are situated and each and all of the said plots and houses is/are basically meant for residential purposes consisting of single storey structures and the same can only be put to residential use and/ or purpose. (b) Permanent injunction restraining the defendants/and/or any one or more of them, and/or their agents, representatives, assigns, lessees and any other persons claiming from or under them from putting the said plots and houses and particularly plots and houses bearing Nos. D-2/37 and D-2/38, Malir Township, Karachi to any use other than residential and/or disturbing the right of light, air and privacy of the plaintiffs or any of them and directing the defendants and/or all or any of them to demolish the double storey structure raised on plots and houses/quarters bearing Nos. 37 and 38, Malir Township, Karachi and/or directing them to disconnect the commercial electric connection thereto and/or any other amenities enabling the defendants to violate and/or transgress plaintiffs' valuable rights.

(c) Damages in the sum of Rs, I lac.

(d) Any other, further and/or additional relief or reliefs that this Hon'ble Court in the circumstances of the case deems fit or convenient.

(e) Costs of the Suit."

3. The respondents Nos. 1 to 16 (the plaintiffs in the suit) filed, along-with the plaint, an application under Order XXXIX, rules 1 & 2, C.P.C. For ad interim injunction to restrain the Karachi Electric Supply Corporation (defendant No, 2/respondent No, 16) from installing and/or commissioning commercial or commercially oriented electric meter on the appellant's plots and also to restrain the appellants and/or his agents, representatives, assigns, lessees, licensees and/or any other persons claiming from/or under him from pursuing commencing and/or continuing any commercial business or activity on the said premises. The appellant resisted the application. The learned Judge obtained site Inspection report from the Nazir of the Court and after hearing the learned Advocates for the parties passed the impugned order, the operative part of which reads : "I, therefore, grant a temporary injunction till the disposal of the above suit restraining defendant No, 1 from carrying on any washing business or activity in the disputed premises. In so far as the raising of construction is concerned, it is ordered that only such construction shall be raised, which is strictly in accordance with the approval plan of the K. D. A. Or other competent authority."

4. The impugned order provides temporary relief against the installation of a washing factory ; but the interim relief restraining the commissioning of commercial electric connection was refused as it was represented on behalf of the Karachi Electric Supply Corporation that the electric connection had already been commissioned. While passing the interim order against the appellant, the learned Judge took into consideration the facts that the appellant had not obtained any permission for converting residential premises into commercial premises and that the running of such a factory was bound to affect the neighbours, who included the respondents/plaintiffs.

5. The learned counsal for the appellant has urged that the appellant has undertaken a lawful business in his own premises without impairing legitimate rights of inhabitants of the township and there was no justification for passing the order of temporary injunction against him. According to him, the facts alleged do not constitute a prima facie case nor do they indicate that any irreparable injury will be caused to the respondent nor does the balance of convenience lie on their side. He has cited supporting authorities 1973 SCMR 44; PLD 1980 SC 193 ; PLD 1982 Kar. 425 ; PLD 1982 Kar. 940 and PLD 1983 Kar.

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6. On the other hand, the learned counsel for the respondents Nos. 1 to 16 has contended that running of a washing factory in the midst of the residential quarters will be hazardous to the living of the inhabitants of the township and will also violate the purpose of the scheme for settlement of displaced persons and infringes their rights of easements, and that commissioning of a high powered electric connection would endanger lives of the persons living there and it is a fit case for grant of interim injunction. He has relied upon PLD 1960 SC 223 ; PLD 1969 Kar. 227 ; PLD 1980 SC 193 ; PLD 1982 Kar. 940 and PLD 1983 Kar.

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7. It is not disputed that the original plan of the township was to rehabilitate displaced persons and the lessees of plots and allotments/ transfers of construction thereon were made for residential purposes. It appears from a copy of sketch of the township placed on record that the area is sub- divided into 36 plots of about 80 sq. Yds. Each, formed into three almost parallel rows separated by lanes. The appellants' plots where the washing factory is intended to be established, are situated just in the centre of the middle row and there are residential houses on their both the sides. The plots in the 3rd row also seem earmarked for residential purpose, whereas the plots in the first row are used, as disclosed in Nazir/Commissioner's report, for residential-cum-commercial purpose.

The appellant has a dry cleaner's shop on one of the plots on the first row. Evidently, the township is not purely residential one but is also partly used for commercial purpose. Of course, the appellant's plots, where the washing factory is proposed to be established are situated in a row of residential units and there is no other commercial unit.

8. As indicated in paragraph 4 above, the impugned order has been passed on the grounds that the appellant has not obtained permission for converting the residential premises for commercial purpose and that commissioning of a washing factory there is bound to affect the persons living in the neighbourhood. It appears from a copy of lease/transfer deed of one of the plots there to the respondent placed on the record that the plots were leased/transferred for residential purpose and one of the covenants of the lease/transfer of the plots was that the lessee/transferee shall not bring any change in the approved structure on the plot without permission of the Karachi Development Authority. Admittedly, the appellant in the present case did not obtain permission from the competent authority for putting the premises leased/transferred for residential, purpose to the commercial use. But the question of breach of covenants rests between the lessor and the lessee. Similar questions of restrictive covenants were considered in the following cases :-

(i) Moosa Bhaiji v. Hashwani Sales and Services Ltd. And others (1).

(ii) R. G. Sehwani Co-operative Houshing Society Ltd. v. Haji Ahmad and others (2).

(ill) Muhammad Munir v. Ahmad Ally and others (3).

(1) PLD 1982 Kar. 940 (2) PLD 1983 Kar. 11

(3) P 1.. D 1982 Kar, 425 In all the three cases, it was held, inter alia, that breach of restrictive covenants in respect of leases of urban lands could be resisted by on the lessor. In the instant case, only the lessors, namely the Karachi Development Authority, could have cause of action to resist the. Conversion of the premises. The respondents 1 to 16 (the plaintiffs in the A suit) are only the lessees of the adjoining/nearby plots on the same terms and conditions as are applicable to the appellant. They do not have actionable cause of action to resist breach of restrictive covenant by the appellant unless there is tangible evidence that their rights as lessees will thereby be infringed.

9. The other ground considered by the learned Judge is that o apprehended nuisance to the neighbours which include the respondents/ plaintiffs. The apprehensions put forth by the learned counsel for the respondents/plaintiffs are that high powered electric connection to the premises imposes danger to the inhabitants in the neighbourhood and, also there will be problem of drairage etc. Bet it is not indicated how the duly sanctioned high powered electric connection will endanger lives of the inhabitants of the township. It is also not indicated as to what would be the drainage problem. In the case Moosa Bhaiji v. Hashwani Sales and Services Ltd. And others already referred to above, it was observed that facts constituting nuisance should be specifically mentioned. In this case, the allegations of apprehended nuisance are of such a nature that they need to be established before any prohibitive order is passed.

10. Besides the grounds accepted by the learned Judge, the learned counsel for the respondents/plaintiffs also urged two more grounds, one of infringement of rights of easements of light and air and another of viola-: tion of privacy by constructing an upper storey on the premises against C the approved pan of the township. But the respondents/plaintiffs have to establish by evidence that they have acquired any rights of easements. Mere assertion of a supposed right is not sufficient for obtaining prohibitive order. As regards violation of privacy, the report by the Nazir indicates that only side walls have been raised by the appellant. It appears from the same report of the Nazir that there are upper-stories in the 1st row and there is an upper storey of one of the respondents/plaintiffs even in the middle row where the appellant's plots are situated. The respondents plaintiffs have to prove that their privacy is or will be violated.

11. It would appear from the facts outlined above, that the fact alleged do not make out a pirma facie case for prohibiting by ad interim injunction order a venture of doing a lawful trade. The impugned order is, accordingly, set aside with no order as to costs.

12. It may be mentioned that this judgment may be construed not to have decided the issues involved in the suit, which shall finally be determined on full appraisement of evidence that may be adduced by the parties.