ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Justice Mrs. Rashida Asad

H.C.A. No.112 of 2021

___________________________________________________________________ Date Order with signature of Judge

___________________________________________________________________

Hearing / Priority Case:

1. For order on office objection.

2. For hearing of main case.

3. For hearing of CMA No.1376/2021.

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28^th October 2021

Mr. Shahab Sarki, Advocate for Appellant alongwith Mr.Javed Panhwar, Advocate.

Mr. Hyder Raza, Advocate for Respondents.

Mr. Jawwad Dero, Addl. A.G. Sindh.

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1. Instant High Court Appeal has been filed against an order dated 02.07.2021 passed by the learned Single Judge, on the original side, of this Court in Suit No.989 of 2021, whereby, respondents have been allowed to operate AC Chiller Plant and Cooling Tower installed at the roof top of a building known as Chapal Ocean Centre.

2. Learned counsel for the appellant submits that there was an agreement between the appellants and the respondents with regard to the installation of AC Chiller Plant and Cooling Tower subject to payment of Rs.60,000/- per month to the appellants, however, while installing such AC Chiller Plant and Cooling Tower, respondents have also constructed a concrete room on the roof top, which amounts to violate the easementary rights of the appellants, who are owners of two penthouses on the roof top of the aforesaid building. According to the learned counsel, learned Single Judge was not justified to allow AC Chiller Plant and Cooling Tower.

3. Conversely, learned counsel for the respondents has raised objection with regard to the maintainability of instant appeal, which according to him, has been filed against an ad-interim order, whereas, according to the learned counsel, the order passed by the learned Single Judge on 04.05.2021 allowing the respondents to install AC Chiller Plant and Cooling Tower was not challenged. It has been contended by the learned counsel for respondents that respondents are the owners of entire building, who were being restrained from operating AC Chiller Plant and Cooling Tower as installed with the permission of the Court and after having receipt report of Engineering Firm through Official Assignee of the Court, wherein, it has been stated that such installation of AC Chiller and Cooling Tower is not hazardous to the structure of the building and the concrete construction of a room on the roof top based will sustain weight. According to the learned counsel, the suit is pending alongwith injunction application, whereas, no final order has been passed thereon, therefore, submits that instant High Court Appeal is misconceived and liable to be dismissed.

4. We have heard the learned counsel for the parties and perused the record of the case with their able assistance as well as gone through the order passed by the learned Single Judge dated 04.05.2021, which reflects that the order, whereby, respondents were allowed to install AC Chiller Plant and Cooling Tower on the roof top of the building, was not challenged by the appellants. However, the impugned order passed pursuant to the aforesaid order allowing the respondents to operate the same has been challenged. It further appears that the order passed on the injunction application has not been finally decided and such installation is with the permission of the Court’s order. Accordingly, we will dispose of instant High Court Appeal with the directions to the learned counsel for the parties to approach before the learned Single Judge, who may decide pending applications including injunction application and pass appropriate order after hearing the learned counsel for the parties in accordance with law.

J U D G E

*Farhan/PS*