Date of hearing 0 4. 1 2. 2 0 0 6 .
Date of Judgment 1 2. 2 0 0 6 .
Plaintiff: Hamida Begum through Mr.Abid S. Zuberi, Advocate.
Defendant
No.1 : Federation of Paksitan through Ms. Sofia Saeed, Standing Counsel.
Defendant
No.2 Karachi Building Control Authority through Ms. Saba Siddiqui, Advocate
Defendants
Nos. 3 and 4: Khurram Khalil and K.N.Academy Foundation through Mr. Badar Alam, Advocate
MUNIB AHMED KHAN, J.- CMA No. 1389 of 2004 has been filed by the plaintiff, with the prayer that Defendants Nos. 3 and 4 may be restrained from using House No. 25-26, Al-Hamra Co-operative Housing Society, Karachi as a School, and from admitting the students and carrying on activities of commercial nature, including running of school. Initially interim order was passed, which was continued from time to time.
Mr. Abid S. Zuberi, learned counsel for the plaintiff has pointed out that property in question, admittedly is not a commercial property, as per its Lease Deed and it cannot be used for any other purpose except residential purpose in terms of restrictive covenant, which is apparent from clause (7) of the Lease Deed and that, too, without consent of the Lessor and since Lessor, in this case is Ministry of work, therefore, Pakistan has been pleaded as Defendant. He further submits that the Defendant himself has shown his obligation to use the said property in terms of restrictive covenant through his undertaking and indemnity bound, submitted to the Society, which are available at pages 53 and 55 of the case file, and that Society itself through its letter dated 18.11.2003 has warned Defendant No.3 for cancellation of Lease, if the property would be used for commercial purpose. Learned counsel has further submitted that Tipu Sultan Road, where the subject property exists has not been declared a Commercial Road by the competent Authority, therefore, the said property cannot be used for commercial purposes. He has referred the contention of learned counsel for the defendant, as appears from the counter affidavit and has submitted that in the Al-Hamra Co-operative Housing Society no property has been permitted to be used for commercial purposes and if any property is being used, then it cannot be taken nor can be referred as example as “two wrongs do not make a right”. He has further argued that there is specific procedure for change of use under the Bye Laws made under S.L.G.O. 1979. He has referred 1993 P.L.D. 631 and 1992 C.L.C. 540. He has further submitted that there were no admission in the School and according to Nazir’s report 104 Students were shifted from other branches of School, just to show that the School was being run for the last many months and the plaintiff is next door neighbour, therefore, sufferance and inconvenience is on his part. Learned counsel for plaintiff has further submitted that Defendants’ application under order 7 rule 11 was heard in detail and was dismissed by this court by order dated 22.09.2005.
Ms. Sofia Saeed, learned Standing Counsel appearing for Defendant No.1 has submitted that the Leas Deed executed by Government of Pakistan is enforceable and according to that, residential use cannot be converted into commercial use and by doing so, the Lessee has committed violation.
Ms. Saba Siddiqui, learned counsel for Karachi Building Control Authority has submitted that commercialization is not permitted until permission is sought under By Laws i.e. Change Of Land Use And Master Planning By Laws 2003 and that KBCA has not permitted any misuse of the property.
On the other hand, Mr. Badar Alam, learned counsel for the defendants Nos. 3 and 4 has submitted that this CMA has become infructuous as School was running at the time when application was made and Nazir’s report dated 3rd March 2004 also discloses the same fact. According to him, Nazir inspected the premises without notice to the Defendant and even then there were students studying in the School. He has submitted that since the situation was prevailed prior to the filing of the suit, therefore, any interlocutory relief for new situation cannot be sought and at the most interim relief in the shape of status quo can be asked for. In this respect, he has relied upon P.L.C. 2003 (CS) 11, P.L.D. 1979 KAR 38, 1982 C.L.C. 344. He has further submitted that conversion cannot be challenged by any person but by the Lessor only, therefore, the plaintiff has no right, as it has no cause of action. He has relied upon 1984 C.L.C. 440 AND 1986 M.L.D. 362 on the ground that interim relief can only be granted when prima facie there is strong case in favour of the plaintiff. He has further submitted that residential plot can be used for commercial purpose in terms of Regulation 18-4.2.8 of Sindh Building Control Regulation, 2002.
After hearing the learned counsel for the parties, it has been observed that the plaintiff is next door neighbour of the Defendant No.3 and is showing his apprehension in respect to so may things which are normal according to common sense, if a School works in the neighbourhood, therefore, keeping in view the authorities cited by Mr. Abid S. Zuberi as well as order of this court dated 02.11.2005, against which no appeal has been filed, it is apparent that the plaintiff has cause of action. It seems that Mr. Badar Alam is mainly relying on the ground that since there are other properties on Tipu Sultan Road, which are being used in a commercial way, as apparent from Nazir's report dated 28.06.2004, therefore, Defendant No.3 cannot be meted out discriminatory treatment. In support of this ground, he has not referred any document, Law or Regulation etc. There is no logic in the above preposition, as the wrong will always be a wrong and whatever may be its Volume, it cannot turn its status from wrong to right. It has also come on record that all the material in writing, including Bye Laws for change of use of residential building into commercial as well as KBCA Regulation and restrictive covenant in the Lease Deed of the property in question, itself do not permit the change of use of property. The objection of Mr. Badar Alam that the plaintiff has already started functioning as School, therefore, except status quo, no further order can be passed and that the matter is to be taken up after recording of evidence has no force. It is the duty of the Court to stop a wrong, which prima facie cause inconvenience to a Complainant, at its initial stage or to curtail it at subsequent stage, when it is brought before it, so it may not be accumulated in its effects as irreparable loss or to continue as a cause of nuisance, for a plaintiff complaining that. It is very general and common with the people that whenever they step into some place, specially, for abode purposes then they first see the local environment and the laws governing that place, including the limitations and relaxation imposed by the concerned Authorities and then accordingly one get adjusted this right and environment cannot be effected but subject to law, rules and regulations made in the longer public interest and need. In the case in hand, the Lease Deed in favour of Defendant No.3 of the subject property granted by Defendant No.1, in consultation with concerned Co-operative society, apparently does not permit change from residential to commercial, rather have a restrictive covenant in the shape of clause (7), therefore, all the persons and specially the person in the neighbour-hood, can have a cause of action, as by any change in condition of Lease or change of the use of property, concerned person may be affected and their property, too.
Keeping in view above criteria, the Bye Laws or regulation meant for the purpose of change in use from one purpose to another purpose, specifically provide for wide publication before allowing change of use and that, too, only on specific places marked for such purpose. The arguments of Mr. Badar Alam that Regulation 18-4.2.8 permit use in change is misconceived as the said Regulation, too, provide that it can be converted by MP & ECD and that is after inviting public objections but in the instant case, admittedly even application has not been made to any Authority in this respect.
In the circumstances and without going into detail of merit and demerit, submitted by the parties and looking at the picture coming out from the record available, it can be said that there is no legal sanction behind the use of residential property as commercial for running a School by the Defendants Nos 3 and 4, hence the plaintiff can raise objection, as prima facie functioning of a School will be a cause of inconvenience for her.
As a result of above discussion, this application is allowed and Defendant No.3 & 4 are restrained from using House No. 25 – 26, Al-Hamra Co-operative Housing Society, Karachi as School or for any commercial nature till further orders. The application stands disposed of in the above terms.
J U D G E
Samie