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2008 YLR 738

MRS. ALBA D’SA
V/S
MRS. NAHEED PABANI

Per Khalid Ali Z. Qazi, J–

Constitution of Pakistan (1973) Art. 4 & 23–
r/w Specific Relief Act (I of 1877)–
Ss. 42  & 54–Sindh Buildings Control Authority
Ordinance (V of 1979), Ss. 2 & 21-A–Karachi
Buildings Control and Town Planning Regulations,
2002, Reglns. 24, 25 & 26–

I did not find any illegality or irregularity in raising multistoreyed buildings on plots in question as the permission to construct multistoreyed buildings and approval of building plan was done by the authorities enjoying powers to do so under Sindh Buildings Control Ordinance 1979 read with Karachi Buildings Town Planning Regulations 2002.  Furthermore the defendants being owners of the plots in question have acquired fundamental rights to hold and enjoy the property rights as guranteed under Articles 4 and 23 of the Constitution and in protecting or safeguarding the rights of easement privacy and peaceful enjoyment of the plaintiffs, the fundamental rights of the defendants in respect of ownerships of their plots couldnot be violated or infringed.

At present a presumption as required under illustration (e) of Article 129 Qanoon-e-Shahdat Order 1984 can be raised that officals acts have been regularly performed.  However all these contentions require deeper appreciation of evidence which can properly be thrashed out at the time of trial.  From the tentative assessment of the material availale on the record,  I am of the considered view that the plaintiffs have no prima facie case at this stage.  The balance of convenience also not in favour of the plaintiffs as great inconvenience wil be caused to the defendants being owners of the properties in exercising their legal rights to deal with their properties as per law.  No irreparable loss will be caused to the plaintiffs if the injunction is refused because the loss if any can be compensated in the shape of the damages, which has already been claimed minimum in the sum of Rs. 10 million in prayer clause of suit no. 724/2006 and with a minimum in suit no. 465/2006. [p. 759] A

Abdur Rehman for Applicants
Mansoourl Arfin, Kamal Azfar, M. Aminullah Siddiqui
and Tasawar Hussain for Respondents.
Date of Hearing : 1st February, 2008.

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