Find a Lawyer

Civil Revision Application No. 131 of 1985,5. decided on 29th October, 1986

‑‑‑S. 115 & 0. XXXIX, Rr. 1 & 2‑‑Temporary injunction‑‑Vacation of‑‑Contentions raised by parties prima facie requiring serious consideration and detailed examination at trial of suit when all evidence would be available before Court‑‑Interest of petitioners would be sufficiently safeguarded in circumstances by grant of injunction which was not likely in any manner to prejudice rights or remedy of respondent against petitioner and recovery of damages if any‑‑Order of first appellate Court vacating injunction set aside and temporary injunction granted to respondent.

S. Hassan Imam Riazi and Hussain Shaikh for Petitioners

Iqbal Kazi for Respondents.

Date of hearing: 29th October, 1986.

This Revision Application under section 115, C.P.C. is directed against the order of 5th Additional District Judge, Karachi, passed in Civil Miscellaneous Appeal No. 27 of 1985 vacating the temporary injunction granted by the trial Court on an application under Order XXXIX, Rules 1 and 2, C.P.C. in a pending suit. The learned first appellate Court vacated the injunction mainly on the ground that under the lease agreement which was executed between the parties there is no specific mention of any car park having been provided to the lessee under the terms of the lease. It was also observed by the learned first appellate Court while vacating the temporary injunction that the conversion of the basement partially into godown was carried out by the respondent No. 1 with the express approval of respondent No. 2 and as such it did not offend against any law and as such the applicants were not entitled to seek any injunction with regard to such conversion by the respondent No. 1. On these considerations the learned first appellate Court came to the conclusion that the applicants failed to make out a prima facie case for grant of temporary injunction until disposal of the suit.

2. Learned counsel for the applicants contends that the premises occupied by the applicants were leased out to them on 23‑1‑1983, 14‑11‑1981, 1‑3‑1983 and 13‑5‑1983 respectively by the respondent No. 1 and at the time these premises were leased out to them they respectively made fixed deposit of Rs.1,21,500, Rs.85,000, Rs.1,39,500 and Rs.1,39,500 in addition to the rental charges which they agreed to pay to the respondent No. 1. It is contended that before construction of this complex as well as at the time of leasing out the premise in favour of applicants, the project was extensively advertised through Press and other media and it was held out by respondent No. 1, that the whole of the basement will be available for car park. The applicants alongwith their plaint submitted an alleged brochure in support of their above submissions issued by respondent No. 1 in the year 1977 in which it is stated that a very roomy car park space will be provided in the building in the basement. The learned counsel for the respondent No. 1 was directed by me to place on record the original approved plan of the building and today at the hearing of this revision the learned counsel after consulting the original approved plan of building stated that in the original building plan the whole of the basement is shown as a car park. The case of the petitioners in the suit before the trial Court is that as a result of above inducement alongwith several other modern facilities with which the complex was to be equipped the petitioners were persuaded to obtain on lease the shops in the complex of respondent No. 1 on sent and to make deposits of substantial sums of money. It is accordingly contended that as the provision for car park space in the basement was one of the attractions which induced the applicants to obtain shops on lease in the complex, the applicants could not be deprived of this advantage by respondent No. 1 after they entered into lease agreement. Learned counsel for respondent No. 1 on the other hand contends that there was neither any holding out on the part of the respondent No. 1 at the initial stage of project or at the time of execution of agreements of lease, that the entire basement will be available for car park. It is urged on behalf of respondent No. 1 that under the rules framed by respondent No. 2 for such project, the respondent No. 1 was liable only to provide car park space for 16 cars but the existing provision for parking in the basement is for 19 cars, and as such there cannot be any legitimate grievance in this regard by the applicants. It is also contended on behalf of the respondent No. 1 that the conversion of a portion of basement into godown was under the express approval of respondent No. 2 who were fully competent to allow such conversion in accordance with their building rules and therefore, no restraint could be put on respondent No. 1 to utilise the said converted space as godown.

3. After hearing the learned counsel for the parties at length I am of the view that the above contention raised by them needs serious considerations at the trial of the suit when all the evidence will be available before the Court. For the present it is sufficient to say that in the year 1977 when the project was announced by the respondent No. 1 for construction and public was invited to obtain leases of proposed shops in the complex, the approved plan of the building contained provision for car park in the entire basement. It is an admitted position that the plan in respect of basement was revised in August, 1983 after completion certificate was granted by respondent No. 2 and the building was already occupied by the petitioners under duly executed leases. In these circumstances, the contention of the petitioner that the building plans could not be revised by the respondent No. 2 so as to curtail A the advantage of car park, without notice to them prima facie needs consideration at the trial of suit. It may also be mentioned here that the applicants also contended that after issuance of completion certificate of building the respondent No. 2 had no power to revise the plan and this contention too needs detailed examination at the trial of the suit. However, keeping in view the circumstances and facts of the case I am of the view that while it will be unjust at this stage to restrain respondent No. 1 from carrying out construction of godowns in the basement in accordance with the approved plan as the said construction is almost at the final stages, the interest of applicants can be sufficiently safeguarded by restraining respondent No. 1 from letting out these godowns to any other person after their completion during pendency of the suit. The learned counsel for the respondent No. 1 expressed the apprehension that the disposal of suit may take a long time which will deprive the respondent No. 1 of substantial return by way of rent if ultimately it is found that the injunction was obtained without sufficient ground. It is clarified that grant of temporary injunction will not in any manner prejudice the rights of remedy of respondent No. 1 against the petitioners for recovery of damages, if any. The order of lst Appellate Court is accordingly set aside and temporary injunction is granted against respondent No. 1 as indicated above. In the circumstances of the case the trial Court is directed to dispose of the suit within six months from the date of receipt of R & P.

M.Y.H./5144‑K Injunction granted

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.