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Petitioner: Syed TAHIR HUSSAIN MAHMOODI and 7 others VS Respondent: TAYYAB and others
Court Name: Sindh High Court Judge(s): Khalid Ali Z. Qazi Title: Syed TAHIR HUSSAIN MAHMOODI and 7 others vs TAYYAB and others Case No.:Civil Petitions Nos.505-K, 506-K of 1998 Suit No,1385 of 2006 C.M.As. Nos.
7842, 8641 of 2006 and 6654 of 2008 C.P. No,D-294; Abdul Razzaq Adamjee v. D.G., K.D.A. , 129-K of 2001 Date of Judgment:2009-06-03 Reported As: 2009 CLC 1254 Result: Application dismissed Judgment ORDER ' KHALID ALI Z. QAZI, J.--- By this order, I intend to dispose of the listed applications one filed by the plaintiffs being C.M.A. No,7842 of 2006, under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Praying therein to restrain the defendants Nos.1 to 4 including their contractors and servants from continuing with the construction Plot No,152-A, Block-2 P.E.C.H.S., Karachi and to restrain Defendants Nos.1 to 4 from creating any third party interest and second C.M.A. No,8641 of 2006 filed on behalf of defendants Nos.1 to 4 praying therein to vary, discharge or set aside the ex parte order passed by this Court dated 21-10-2006, as the same has caused serious prejudices, hardship, inconvenience, irreparable ioss and injury to the said defendants and further prayed to dismiss/reject C.M.A. No,7842 of 2006 as well. 2.The brief facts leading to the plaintiff's case are that building under construction on the Plot No,152-A, has been permitted by defendant No,5 by misrepresenting the plaintiffs' contentions, that the plot in suit is not capable of commercialization, nor can any commercial building be constructed thereon. In this regard the objections of the plaintiffs vide letter dated 27th August, 2004 (Annexure "P/3" to the plaint) and objections filed on 5th June, 2006 before Defendant No,5 (Annexure "IV" to the plaint) are referred. 3. It is further case of the plaintiffs Nos.1 to 4 that they claim to be the owners and residents of Plot Nos.153-C and 153-D situated in Block-2, P.E.C.H.S., Karachi and plaintiffs Nos.5 to 7 are also residents of Block-2, P.E.C.H.S., Karachi which is a residential area wherein the residential construction upon ground plus one has been permitted and construction has been raised in the
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area accordingly. Plaintiff No,8 claims to be a non governmental organization devoted to maintaining and improving environment of Karachi which is inter alia affected by enforcing the town planning and building control laws applicable to Karachi. In April, 1989 (i) Mst. Samina wife of Muhammad Javed, (ti) Mrs. Maimoona wife of Muhammad Hanif and (iii) Mst. Saiqa wife of Muhammad Arif attempted to raise a multistoreyed building on their neighbouring Plot No,152-B, which would violate/interfere with the guaranteed rights of the neighbouring plot holders as to air, light, privacy/Pardah etc. The husband of plaintiff No,1 and his brother Syed Mohsin Mehmoodi filed Suit No,868 of 1989 in this Court. The plaintiffs and other owners of plots of the area have constructed their residential buildings of the height of ground plus one and have been peacefully living and enjoying the properties as such. Plaintiffs came across a notice in Daily Jasarat of 25th August, 2004 whereby the plaintiffs came to know that Defendants Nos.1 to 4 intended to raise a construction on their plot 152-A, Block-2, P.E.C.H.S. Of commercial nature of ground plus seven with changes in the compulsorily open spaces on front and back of the same. 4. It is further alleged in the plaint that since the proposed construction would violate/interfere with the plaintiffs and other owners of plots in the area as to their easements, air, light, privacy/Pardah and naturally would cause congestion and inconvenience to the other residents and would also create security problems. The plaintiffs addressed and sent objections to defendants Nos.5 and 10 explaining the problems that the proposed conversion and construction would be causing. The plaintiffs rightly expecting that they would be heard and their objections would be properly weighed before any construction is approved/done on the above said Plot No,152-A, but they have had no response from the relevant quarters. On the contrary the plaintiffs were shocked and surprised when the offending construction started suddenly and the plaintiffs had no alternative but to send a notice dated 10th March, 2006 to one Haji Tayyab, the defendant No,1, Muhammad Anwar and Ghulam Hussain asking them not to raise the offending construction as the same was violative of the plaintiffs' right and rights of other owners and terms and conditions of the lease. The plaintiffs this time also did not receive any response. 5. It is further stated by the plaintiffs that instead summons and notice of Suit No,292 of. 2004 filed by the defendant Nos.1 to 4 were served upon the plaintiffs, whereby the plaintiffs were shocked to note that the defendants Nos.1 to 4 had claimed to have obtained necessary approval and sanction to raise a multistoried commercial building comprising of ground plus nine and they are proceeding with offending construction day and night. The purported construction of the building on Plot No,152-A is not only against the terms and conditions of the lease thereof and the Town Planning Rules and infringes/violates the guaranteed rights of the plaintiffs and other owners of plots in the area which may also create problems of security and convenience. 6. It is further pleaded that the framing of a housing scheme does not mean simpliciter levelling of land and carving of plots but it also involves working out appropriate requirements of water, electricity, gas, sewerage lines, streets and roads etc. If a housing scheme is framed on the assumptions that it will have residential units one plus one. But factually the allottees of the plots are allowed to raise multistoreyed building having flats, the public utility services will fall short of requirements with the result that every one living in the scheme will suffer. This is exactly what happened on the purported construction with conversion of the use of the Plot No,152-A comprising ground plus nine commercial and the plaintiffs and other owners of the area would suffer inconvenience, obstructions and deprivation of their rights of easements, air, light, privacy/Pardah, congestion, inconvenience and insecurity and the same would also be contrary to the terms and conditions of lease to which the owners of plots in area are subject. The purported construction' would also be violative of the decree of the High Court in Suit No,868 of 1989 and the above quoted decision of the Supreme Court of Pakistan reported in PLD 1.994 SC 512. On the above facts, Petition No,D-486 of 2006 was filed in April, 2006 in this Court. After few hearings by consent of the parties
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an order dated 31st May, 2006 was passed by the High Court of Sindh whereby, inter alia, respondent No,5 (defendant herein also) were directed to consider the objections of the petitioners/plaintiffs regarding commercialization of the plot in suit within thirty days of the date of order i,e, 30-6-2006. 7. It is further contended by the plaintiffs that in addition to the objection filed by two of the plaintiffs pursuant to the order dated 31-5-2006 defendant No,5 issued a notice dated 3-6-2006 fixing the date of hearing on 5th June, 2006 at 10-30 a.m. On 5th June, 2006 plaintiff No,8 filed objections before defendant No,5 wherein they not only objected to the commercialization of the plot in suit but also gave reasons therefore defendant No,5 did not give their reasons/findings by 30th June, 2006 as directed by this Court on 31st May, 2006. Consequently a reminder was sent after numerous phone calls on 23rd August, 2006. Thereafter it was revealed that defendant No,5 had given his findings/report on 19th July, 2006 but had not supplied a copy thereof to this Court or the plaintiff No,8. Plaintiff No,8 was also horrified to note that in the said report of 19th July, 2006 have misrepresented the plaintiffs contentions that the plot cannot be commercialized. This is manifest by Annexure "P/3" (which was also filed in C.P.No,486 of 2006). The objections of plaintiff No,8 on 5th June, 2006 (Annexure "IV") vide his letter dated 30th August, 2006 plaintiff No,8 wrote to defendant No,5 protesting about the findings of the said defendant No,5 as stated in his report of 19th July, 2006 and demanded to forward plaintiff No,8's objections as well as letter dated 30th August, 2006 as annexure to its report of 19th July, 2006. 8. It is further stated in the memo. Of plaint that plaintiff No,8 subsequently contracted the defendant No,5 but to date nothing has been heard. Consequently the plaintiffs are constrained to file this suit against the defendants challenging the findings of defendant No,5 as stated in his report of 19th July, 2006. It may here be mentioned that to the best of plaintiffs knowledge the defendant No,5 did not send his report to this Court as it was required to do vide order dated 31st May, 2006 mentioned above, the defendant No,5 has given the private defendants namely defendants Nos.1 to 4 have permitted with the construction of the building on the plot in suit. 9. In contrast, the defendants filed counter affidavits to the listed application C.M.A. No,7842 of 2006 and denied the contentions/ allegations levelled in the plaint stating therein that the suit is not maintainable and is liable to be dismissed with cost on all or any of the following grounds, amongst others:-- (a) that the suit is barred by the principle of res judicata, i,e, section 11 of the Code of Civil Procedure, 1908; (b) that the suit is barred by sections 42, 54 and 56 of the Specific Relief Act, 1877; (c) that the suit is barred by section 194 of the Sindh Local Government Ordinance, 2001; (d) that the plaintiffs have not approached this Honourable Court. With clean hands and therefore, they are not entitled for any discretionary or equitable relief; (e) that the Building Plan has been approved according to Building Regulations, 2002 and the entire Allama Iqbal Road, has been. Declared commercial, vide Notification No,CDGK/MPG0/2004/ 142 dated 12-2-2005 therefore, the suit is baseless and malicious hence liable to be dismissed with cost; (f) that the plaint has failed to disclose any cause of action; (g) that the suit is barred by the principles of laches as the majority of the buildings situated in the same vicinity/area have been converted into commercial units and that the plaintiffs failed to raise any objection earlier on such conversion or use; (h) that the instant suit is liable to be stayed in view of the earlier Suit No,292 of 2006 (Tayyab and others v. Masooma Mahmoodi and another) which is filed by the defendants Nos.1 to 4 and which is still pending before this Honourable Court;
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(i) that in view of recent decisions of Honourable Supreme Court in identical matters, this suit is liable to be dismissed. 10. It is stated by the defendants that defendant No,6/P.E.C.H.S. And defendant No,9/K.B.C.A. Are responsible for transfer and construction work respectively in the area known as P.E.C.H.S. No Objection Certificate from Government of Pakistan, Ministry of Housing and Works Pakistan Public Works Department, Islamabad, (defendant. No,7) was also obtained on 19th April, 2005. In addition to the above, the defendant No,6 i,e, P.E.C.H.S. Also granted status of commercial property through their letter dated 25-4-2005, however, the plaintiffs have concealed all these material facts from this Court for ulterior motives. The defendants Nos.1 to 4 had obtained order of conversion of suit property from residential to commercial from C.D.G.K. Master Plan Department after fulfilment of all legal formalities which fact is in the knowledge of the plaintiffs, but despite that they have maliciously concealed these facts in order to mislead this Court and to obtain an ex parte injunction order. Further none of the plaintiffs has filed any title or other documents to either prove their ownership or their residence. It is stated that the plaintiffs Nos.5 to 7 are serious violators of Building Regulations though they are members of N.G.O. Namely "SHEHRi". It is pertinent to point out that husband of the General Secretary of SHEHRI, Mrs. Amber Ali Bhai (plaintiff No,7), has committed some very serious violations of Building Regulations. He is involved in illegal construction of a Commercial building having ground plus five floors on residential Plot No,154-A, Sindhi Muslim Cooperative Housing Society, Shahrah-e-Quaideen so also he is running commercial car showroom in the name of Ali Bhai Autos on a purely residential Plot bearing No,89-K Block-2 P.E.C.H.S., Karachi. Hence, the plaintiffs are motivated with ill will and mala fides. 11. Further, the plaintiff No,7, is running the office of Messrs SHEHRI, an N.G.O., in a purely residential Bungalow bearing No,206-G Block No,2, P.E.C.H.S., Karachi, as mentioned in the title of the above suit. The defendants further contended that it is also pertinent to point out here that a commercial Architectural consultant office in the name of Messrs Navaid Hussain Associates (plaintiff No,5) is also being run in the said residential bungalow as mentioned in the title of the plaint. The above- mentioned illegal acts of plaintiffs Nos.5 and 7 is also on the record of this Court in Suit No,364 of 2006 wherein it is clearly mentioned in the Nazir report that the aforesaid illegal commercial activities are being done in the residential unit of plaintiff No,7. It is further stated that plaintiffs have failed to point out any illegality or irregularity in the construction of the building under reference. The plaintiffs have concealed material facts and they have approached this Court with unclean hands. The suit property has been validly declared commercial by the City Government after adopting all legal and codal formalities. It is further submitted that the defendants Nos.1 to 4 have obtained order of conversion of the suit property from residential to commercial from C.D.G.K. Master Plan Department after completion of all legal and codal formalities which facts are in the full knowledge of the plaintiffs, but despite that they have concealed these facts in order to mislead this Court and to obtain a favourable judgment/decree. Be that as it may, the road where the suit property is situated i,e, Allama Iqbal Road has already been declared commercial and that there was no need for obtaining sanction from any Authority for its commercialization. It is pertinent to mention here that the plaintiffs were fully aware about the notice in newspapers but they did not file any objections before the defendant No,5. It is evident from the NOC regarding change of land use that no one had made any objection in response to the notice dated 25-8-2004. 12. It is further stated by the defendants that the plaintiffs never approached the competent forum. They have never filed any objections before the concerned defendants. As far as the legal notice dated 10-3-2006 is concerned, it is submitted that the defendants Nos.1 to 4 have already filed a suit before this Court for declaration and perpetual injunction, which is numbered as Suit No,292 of 2006 (Tayyab and others v. Mrs. Masooma Mehmoodi and another). In the said suit the present defendants Nos.1 to 4 have prayed for the reliefs against the present plaintiffs for their mala fide
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actions. It is vehemently denied that the proposed construction on suit property is violative of the plaintiff's so-called rights of ownership and conditions of lease. It is further stated that Suit No,292 of 2006 was filed against the plaintiffs in the above case. The plaintiffs have clearly admitted in para.8 of the plaint that the defendants Nos.1 to 4 have adopted lawful procedure for commercialization of the suit property. It is vehemently denied that any offending construction was raised on suit plot. It is evident term Nazir Report dated 22-11-2006 conducted on the application of the plaintiffs that the construction raised on the suit property is strictly in accordance with approved building plan and no illegality or irregularity was committed by C.D.G.K./K.B.C.A./K.D.A. While according necessary approval. 13. It is also stated by the defendants that the suit property is situated on main Allama Iqbal Road, P.E.C.H.S., Karachi, which road has once again been declared to be commercial by the City District Government, Karachi vide City Council Resolution No,383 dated 6-1-2004 and therefore, the suit property could not be made subject of the so-called objections raised by the plaintiffs. At the relevant time when Suit No,868 of 1989 was decided the Resolution No,383 dated 6-1-2004 was not in field. It is stated that the vicinity wherein the suit property is situated has completely been changed and converted into business and commercial area. That number of high-rise and commercial buildings, have been raised in the close, neighbourhood of the suit property and none of the plaintiffs in past had ever raised objections to such construction activities. The objections of plaintiffs regarding the so-called requirements of infrastructure i,e, electricity, gas, sewerage lines etc. Are incorrect, baseless and unfounded. According to paras.4-8 of the Resolution No,383 of City Council, an amount of 37.5% of revenue generated by the conversion/change of land use will be utilized in the same locality and that 27.5% of the revenue would be utilized for development works by other remaining agencies. Therefore, the plaintiffs are not entitled to raise such plea of the public benefit policy in order to restrain the defendants Nos.1 to 4 from raising any lawful construction. It is also stated that recently a Division Bench of this Court in H.C.A. No,15 of 2007 have rejected and dismissed the identical and similar pleas raised by the said appellants which pleas are common in the instant suit. The said view was cited with approval by a larger Bench of Honourable Supreme Court in a recent case. Hence in view of the recent judgments of the Superior courts the plaintiffs have lost all grounds for maintaining the present suit which is liable to be dismissed with heavy cost. It is further stated that after detailed hearing and scrutiny of the order of the defendant No,5, the defendant No,10 has passed order in favour of commercialization of the suit property but the plaintiffs have again initiated the above suit proceedings pertaining to same plot which is based on mala fide, and on malicious grounds. It is further submitted that pursuant to the order of the this Court in Constitutional Petition No,486 of 2006, the defendants Nos.1 to 4 have started construction on the suit plot strictly in accordance with the approved building plan. The defendants have paid a sum of Rs,81,00,000 (Rupees Eighty one lac) to the C.D.G.K. For commercialization of the suit property. There is no illegality or any irregularity in the grant of commercial status to the suit property. The contents of Annexure "IV" with the plaint are vehemently denied and the plaintiffs are put to strict proof. 14. It is further stated that the defendants have obtained approval of the building plan in accordance with Building Regulations 2002 and in no manner intend to either violate the approved building plan or any provision of Building Regulations, 2002. The aforesaid facts were in the knowledge of plaintiffs as their counsel, who are presently representing them was party to the previous proceedings i,e, C.P.No,486 of 2006 on behalf of Shehri which was disposed of by consent of the all the parties and now the plaintiffs are estopped in law from agitating those grounds which were subject of the earlier petition. It is stated that the defendant No,5 has given detailed hearing to the parties and the findings of defendant No,5 is based on law, facts and proper appreciation of documents. It is pertinent to point out here that the defendant No,5 submitted his
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recommendations to the defendant No,10 who issued a letter dated 4-8-2006, according to Rules and Regulations but the same was concealed by the plaintiffs from this Court which proves that their case is based on misrepresentation and concealment and they have approached this Court with unclean hands. It is further submitted that when the plaintiffs were not satisfied with the compliance of the order dated 31-5-2006 passed in C.P.No,486 of 2006 the plaintiffs should have filed proper application in C.P.No,486 of 2006 instead of filing the present suit. The defendants Nos.1 to 4 have also followed all the legal formalities for commercialization of the suit plot and in this regard the defendants Nos.8 and 10 have issued approval letter for the commercialization of the suit property on 14-10-2004. No Objection Certificate from Government of Pakistan, Ministry of Housing and Works Pakistan Public Works Department, Islamabad, was also obtained on 19th April, 2005. In addition to the above, the defendant No,6 i,e, P.E.C.H.S. Also granted status of commercial property through their letter dated 25-4-2005, however, the plaintiffs have concealed all these facts from this Court for ulterior motives. The said acts of the plaintiffs clearly show the mala fide and towards the defendants Nos.1 to 4. It is further stated that plaintiffs were extended proper opportunity of hearing before the defendant No,5 (Nazim), however, they failed to point out any illegality or irregularity before the said authority. They have approached this Court with unclean hands, and with mala fide. The so-called plea taken by the plaintiffs in the present suit is absolutely baseless, ill founded and at the same time has been urged with ill will and mala fide. It is further submitted that in the vicinity of the suit property there are several multistoreyed buildings but never in past the plaintiffs have ever raised such similar objections, which reflects their towards defendants Nos.1 to 4. They are not acting with good reason and genuine case. 15. To controvert the pleas taken by the defendants in their counter-affidavit, the plaintiffs filed rejoinder and denied the allegations levelled against the plaintiffs. 16. I have heard Mr. Naimur Rehman, learned counsel for the plaintiffs, Messrs Rasheed A. Razvi and Syed Haider Imam, learned counsel for the defendants Nos.1, 2 and 4 and Mr. Tahawur Ali Khan, learned counsel for C.D.G.K. And perused the material available" on record. 17. Mr. Naimur Rehman learned counsel for the plaintiffs during the course of arguments has reiterated and reaffirmed the contents of memo. Of plaint and rejoinder to the counter-affidavit filed by the plaintiffs. To substantiate his contentions, learned counsel has placed reliance upon the following cases:--- (1965) 1 All ER 611, (1993) 1 All ER 65, PLD 1981 SC 377 at pages 426, 1998 SCM R 1618 second last para. At 1645, 1998 PTD 3823, 2000 YLR 1161, 1994 SCM R 1900, 1990 CLC 1337, PLD 1987 SC 145, 2006 SCM R 1202, PLD 2007 Kar. 11 and PLD 2008 SC 48, 1999 SCM R 2883, PLD 1974 SC 151 (179), PLD 1970 SC 180 (Full Bench 184-A), PLD 1991 SC 14, PLD 1990 Kar. 1 (page-6), PLD 1983 Kar. 303, PLD 1962 SC 119 and PLD 1969 SC. 165, PLD 1974 SC 151, PLD 1999 SCMR 2833, 2003 SCM R 537, KLR 1984 Civil Cases 225, 1997 SCM R 1543, PLD 1987 SC 149, KBTR 2002 Regulations 18.5.1.1., 2008 SCM R 133 and 1998 PTD 2923. 19.(sic) On the contrary, Messrs Rasheed A. Razvi and Syed Haider Imam Rizvi, learned counsel for the defendants Nos.1, 2 and 4 argued the matter at length and also filed written submissions wherein the contents of the counter-affidavit to C.M.A. No,7842 of 2006 and supporting affidavit of C.M.A. No,8641 of 2006 have been reiterated and reaffirmed. To substantiate their arguments, learned counsel has placed reliance upon the following citations-- 1974 SCM R 519, 1986 CLC 2923, 2000 SCM R 780, 2001 SCM R 279, 2005 CLC 694, 1999 SCM R 2089, 2008 SCM R 133, 2006 YLR 2537, 1991 SCM R 119, PLD 2007 SC 472, PLD 1991 SC 815, 2004 CLC 767 and 2008 YLR 738. 20. Mr. Tahawur Ali Khan, learned counsel for the City District Government Karachi also filed counter-affidavit to the listed application denied the allegations levelled by the plaintiffs against defendants Nos.8 and 10. He also adopted the arguments advanced by Syed Haider Imam Rizvi, learned counsel for the defendants Nos.1, 2 and 4.
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21. I have given due consideration to the arguments advanced by the learned counsel for the parties, minutely perused the material available on record and the law and case law on the subject. 22. The admitted position is that the entire road on which suit plot is situated has been commercialized/converted by the relevant authorities. The contentions of the plaintiffs that before impugned conversion of the suit plot from residential to commercial and accord of permission to construct multistoreyed…
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