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Suit No. 209 of 1981, decided on 25th September, 1983.

---7 O. XXXIX, r. 2(3) Plaintiff filing application for temporary injunc tion Defendants giving undertaking that they would not raise cons truction to certain height for specified time Plaintiff filing number of applications for attachment of defendant's property for violation of such undertaking Nazir on local inspection reporting no such viola tion by defenuant Held: Court while granting ad interim injunction restraining defendants from transferring or handing over possession of building until further order did not make undertaking offered by defendant a part . of injunction order Plaintiff' having failed to establish that any construction was made by defendants in violation of that undertaking Application dismissed

S. Nasiruddin for Defendants.

This order will govern the disposal of C. M. A. No. 3366/81, dated 27-10-1981, C. M. A, No. 4284-81, dated 21-12-1981, C. M. A. No. 1288-81, dated 29-3-1982. The first mentioned application is under Order XXXIX, Rule 2 (3) read with section 151, C. P. C. filed by the plaintiff praying for attachment of the Property bearing No. 327-5-3, Garden East, Karachi, belonging to defendants 4 to 17 or taking such other action as may be found necessary by the Court in the circumstances of the case on account of the alleged violation of an undertaking given by the defendants to the Court on 17-9-1981. In the second noted application which was filed after about 2 months of the first application a similar prayer is made against the defendants 1, 2 and 4 to 17 for attachment of their property with a further prayer that the defendants may be directed to pull down or remove such construction as is found to have been put by them since 28-10-1981. The third noted application is also under Order XXXIX, rule 2(3), C. P. C. read with sec tion 151, C. P. C. with prayer to attach the property mentioned in the first application belonging to defendants 4 to 17 for violating the orders of the Court dated 17-9-1981 and 28-10-1981 and a further prayer is made to direct these defendants to pull down and/or remove or undo such construction as is found to have been put up by them in defiance of aforesaid orders. The defendants have filed counter-affidavit to all the aforesaid three applications in which they have denied that they have violated the orders of the Court iii any manner. The learned counsel for the plaintiff contends that on 17-9-1981 when this matter came up before the Court the learned counsel appearing for the defendants gave an undertaking not to raise the 4th storey of the building which they completed in spite of the above undertaking and, therefore, they are liable to be proceeded against for violation of the said undertaking. On 17-9-1981 when this matter came up before the Court the following order was passed by the learned Judge in presence of the parties :‑

"17-9-1981, Mr. Hamza I. Khan, Advocate for the plaintiffs.

Mr. S. Nasiruddin, Advocate for the defendants.

Mr. Nasiruddin, the learned counsel for the defendants has stated that the construction on the third storey of the building is in progress and it will take about 1i months to complete the construction on the third storey. In the circumstances there does not seem to be any urgency to pass any interim order as according to this statement no construction above the third story can be made upto about 1 months. The learned counsel for the defendants also undertakes that within this period the defendants will not raise the further storey of the building. In view of this factual position this application shall be heard after three weeks. The defendants will not transfer or hand over the posses sion of the building till further orders. This restriction will only apply to the third storey."

A reading of the above order will show that when the injunction application came up for hearing a statement was made before the Court that no construction above the third storey can be made upto about 1 months and the learned counsel for the defendants simultaneously undertook that within this period the defendants will not raise the 4th storey of the building. Upon this statement having been made before the Court the learned Judge passed the order that there was no urgency for passing any interim order and the application should be heard after three weeks. However, the defendants were directed not to transfer or hand over the possession of the building till further orders but this restraint order was restricted to the 3rd storey only. After about one month and 10 days of the passing of the above order the plaintiffs filed the first noted application in which they complained of the violation of the undertaking referred to above. This application came up for orders before the Court in presence of the counsel for the parties on 28-10.1981 when the Court directed Nazir to inspect the site on that very day and to take photographs if necessary and further construction was stopped until hearing of application. The Nazir inspected the site the same day and submitted his report dated 5-11-1981 which contains the details of construction on the site as on 28-10-1981. The plaintiff thereafter riled the 2nd application on 21 12-1981 alleging breach of orders dated 17-9-1981 and 28-10-1981. This application came up before the Court for orders on 21-12-1981 when the Court directed Nazir to inspect the site again and take photographs and submit his report within three days. The Nazir visited the site on 22-12-1981, took photographs and submitted his report dated 28-12-1981. According to this report of the Nazir the condition of construction at the site in Block 1 was same as reported by him on 5-11-1981 except that the shutterings of the roof of the third floor which were partly removed on his visit on 28-10-1981 were found completely removed and in Block 2 at the site the roof of first floor which was partly fitted with shutter ings on 28-10-1981 when Nazir last visited, was found completely filled with the cement/concrete. The Nazir's report clearly established that no additional construction was made between 5-11-1981 and 22-12-1981 and as such there was no justification for filing the second application on the ground of violation of order dated 28-10-1981. After about months of the second application the plaintiffs filed the 3rd application in which they once again complained of the breach of orders dated 17-9-1981 and 28-10-1981. It may be mentioned here that the main application for grant of temporary injunction came up for hearing before the Court on 27-5-1982 while all the above-noted three applications were pending and the Court after hearing the learned counsel for the parties refused to grant interim relief in view of the defendants' unqualified undertaking to the Court that they will abide by the final orders of the Court in the case and that in the agreement with the transferees and the tenants a clause will be inserted whereby the transferees and the tenants will also undertake to abide by the judgment in the suit. On 17-9-1981 when the Court recorded the undertaking of the learned counsel for the defendants then offered by on behalf of defendants there was no indication in the order as to the extent of construction existing on the site on that date. According to the order dated 17-9-1981 the counsel for the defendants had undertaken not to raise the construction of 4th storey in the building The plaintiffs have failed to establish that any construction was made by the defendants in violation of that undertaking. The Nazir's report dated 5-11-1981 shows that construction existing on the site in the Block I consisted of only upto 3rd storey while Block II was found constructed only upto 1st storey. Apart from it on 17-9-1981 the Court while granting

ad interim injunction restraining defendants from transferring or handing over possession of building until further order did not make the undertaking offerred by the defendants a part of the injunction order. I am therefore of the view that the plaintiff has failed to substantiate any violation on the part of the defendants with regard to the orders of the Court dated 17-9-1981 and 28-10-1981. Accordingly all the three applications are dismissed but there will be no order as to costs.

M. B. A. Applications dismissed.

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