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Initializing Secure Chambers
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Initializing Secure Chambers
1989 M L D 4278
1989 M L D 4278
[Karachi]
Before Haider Ali Pirzada, J
MAZIR ALI and others Applicants
Versus
HANIF Defendant
Civil Miscellaneous Application No. 7653 of 1988 in Suit No. 585 of 1988, decided on 17th May, 1989.
Civil Procedure Code (V of 1908)
--O. XXXIX, Rr. 1 & 2--Temporary Injunction--Plaintiff seeking temporary injunction ag4inst defendant restraining him from raising or completing any construction on fourth floor of building constructed on his plot--Affidavits, counter-affidavits and photographs brought on record showing that fifth floor had already been completed except finishing--Held, no interference with the completion of the fifth floor at this stage was called for as it was neither just nor proper--Injunction not granted in circumstances.
Nisarally for Applicants.
Khalid M. Ishaque for Respondent.
ORDER
This is an application under Order XXXIX Rules 1 and 2 read with Section 151 CPC moved on behalf of the plaintiffs seeking temporary injunction against the defendant restraining him from raising or completing any construction works on fourth floor, that is, beyond ground and three upper floors, on plot bearing survey No. 407, Sheet G.R.E., Garden East Quarters, Karachi, in any manner whatsoever, till the decision of this suit. .
The notice of this application was served upon the defendants. The defendants filed counter-affidavit and stated therein that no prima facie case has been made out. The defendants asserted that the fifth floor has already been completely constructed. The defendants have also annexed photograph of the building showing that fifth floor has already been completely constructed.
I have heard the learned counsel for the parties. A perusal of the affidavits, counter-affidavits and the photograph which have been brought on record, it is clear that the fifth floor has already been completed except the Finishing. Therefore, at this stage to interfere with the completion of the fifth floor will neither be just not proper. The matter is to be heard by the learned trial' Court. Therefore, it is not proper to interfere into the merits of the case.
Mr. Nisarally the learned counsel for the plaintiffs lastly contended that the defendants be restrained from handing over possession of fifth floor to the parties and to protect the interest of the plaintiffs. Mr. Khalid Ishaque submitted that the plaintiffs have not sought such a relief. I agree with Mr. Khalid Ishaque that such a relief has not been sought nor such a prayer was made by the plaintiffs at any stage. The plaintiffs made similar contention in High Court Appeal which contention was not favoured by the learned Division Bench. In the absence of this prayer in the application, it is not proper to grant it at this stage.
For the aforesaid reasons, the application was dismissed by me by order dated 5-2-1989 on conclusion of arguments.
M.Y.H./V-16/K
Petition dismissed.