MUHAMMAD AZIM vs Mst. MUNAWAR BEGUM And Other
This matter arises from a civil suit instituted by the petitioner seeking a permanent injunction to restrain the respondents from demolishing or damaging any portion of a disputed century-old evacuee property through excavation and construction. The trial court dismissed the suit under Order VII Rule 11 of the Code of Civil Procedure 1908 and vacated the interim injunction with certain directions, which decision was partly modified in appeal by the Additional District Judge who remanded a preliminary issue regarding cause of action while maintaining the vacation of the interim injunction. A subsequent civil revision before the High Court was also dismissed. The core legal question concerned whether the lower courts properly evaluated the facts and the status of the sanctioned building plan in declining interim relief and disposing of the suit. The Supreme Court of Pakistan granted leave to appeal to consider the contentions raised, noting that the sanctioned plan had reportedly been cancelled and that ongoing construction threatened material damage to the petitioner's portion of the property, and consequently restrained the respondents from raising any construction pending the appeal.
- Whether a civil court can reject a plaint under Order VII Rule 11 of the Code of Civil Procedure 1908 in a suit for permanent injunction concerning structural damage to a property?
- Can an appellate court remand a suit for decision on a preliminary issue while upholding the vacation of an interim injunction?
- Whether interim injunctive relief should be granted to restrain construction activities when the underlying building plan has been cancelled?
- Order VII Rule 11, Code of Civil Procedure 1908
ORDER
ABDUL QADEER CHAUDHRY, J.---The property in dispute was an evacuee property and the petitioner purchased the portion bearing No.B/368-A, whereas the predeceassor-in-interest of the respondents purchased its portion B/368-B. According to the petitioner, he is in possession of one store in ground floor, major portion of 1st floor and entire portion of 2nd and 3rd floor whereas the respondents are in possession of only one garage and a room in ground floor and small portion of first floor. The respondents collected material at the spot and started digging the structure of the property. The property is an old structure, about 100 years old and the proposed construction would materially damage the property owned by the petitioner. The petitioner, therefore, filed a suit in Court of Civil Judge praying for decree of permanent injunction restraining the respondents from demolishing any portion of the house. Alongwith the suit, an application for temporary injunction was also filed. The Civil Judge dismissed the suit under Order VII, Rule 11, C.P.C. And vacated the interim injunction granted earlier with the direction to the respondents that (i) the proposed digging should not go beneath the level of foundation and (ii) no wall will be damaged and shelves would not be made in the walls for the purpose of mid floor roof slab but instead additional walls should be constructed to support the mid roof slab".
2. The petitioner filed an appeal against the said order which was disposed of by the Additional District Judge on 5-10-1988 who partly accepted the appeal and remanded the suit after hearing preliminary issues, namely, whether the plaintiff/petitioner had no cause of action and directed the trial Court to decide it first and dismissed the appeal so far as vacation of interim injunction was concerned.
3. The petitioner thereafter filed a Civil Revision in the High Court which was also dismissed.
4. Learned counsel for the petitioner has submitted that a plan was sanctioned in favour of the respondents for the construction in the year 1985 but it was cancelled on 13-10-1986_ The sanction order on the basis of which the respondents were digging the ground, is no more in the field. It is also submitted that if the construction is allowed, the portion of the property in dispute would be demolished. The facts have not been considered by the Courts below.
5. The submission made by the learned counsel requires consideration. Leave is, therefore, granted.
Security Rs.2,000.
6. The respondents are restrained from raising any construction. The appeal shall be prepared on the present record with liberty to the parties to file additional documents, if they so desire.