ORDER SHEET
High Court Appeal No. 20 of 2010.
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Date Order with signature of Judge
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Before: Mohammad Ather Saeed J.
Irfan Saadat Khan J.
1. For hearing of CMA No. 793 of 2010.
2. For Katcha Peshi.
3. For hearing of CMA No. 159 of 2010.
Mr. Yousuf Moulvi, Advocate for the Appellant.
Mr. Muhammad Ashraf Khan Mughal D.A.G.
Mr. Abdul Sattar Pirzada, Advocate for Respondent No.3 alongwith Rana Ikramullah and Ms. Tehreem Taj Advocates.
Mr. Ashraf Ali Butt Advocate for Clifton Cantonment Board.
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Mohammad Ather Saeed J.- This appeal has been filed against the order of the learned Single Judge dated 13.01.2010 in Suit No. 90 of 2008 whereby CMA No.309 of 2008 for grant of injunctive relief under order XXXIX Rules 1 and 2 CPC was dismissed subject to following undertaking made by the present respondent No.3 that he will raise the height of the hoarding/signboard by 15 feet by turning it towards the eastern side and shall also furnish an undertaking before the Nazir that in case if any damage/harm is caused on account of the hoarding/signboard the Plaintiff shall be compensated.
2. We have today heard Mr. Yousuf Moulvi learned counsel for the Appellant, Mr. Abdul Sattar Pirzada assisted by Mr. Rana Ikramullah learned counsel for the Respondent No.3, Mr. Ashraf Ali Butt learned counsel for the Clifton Cantonment Board and Mr. Muhammad Ashraf Khan Mughal learned D.A.G for the State.
3. Learned counsel for the appellant has vehemently challenged the order of the learned Single Judge by which the injunction allowed to him, was withdrawn. He submitted that it is his right to carry on his business without his view being blocked as when the view is blocked from the road then the business suffers. He has also produced the photographs of the showrooms of other parties, who also carry on the business of car showrooms and pointed out that there are no hoarding or signboard in front of such showrooms. He pleaded that his right of easement and his right of trade has suffered irreparable damage because of such hoarding and there is also a risk of the hoarding falling down and damaging his premises. In this connection the learned counsel relied on two judgments of the learned Single Judge of this Court reported as Clifton Center Association Vs. City District Government Karachi PLD 2003 Karachi 477 and Clifton and Defence Trade Welfare Association Vs. President Clifton Cantonment Board reported in PLD 2003 Karachi 495 whereby the learned Single Judge had given elaborate orders in respect of the laws of easement and nuisance and according to the learned counsel had granted relief to the person suffering. The learned counsel also stated that the Cantonment Board has not framed any policy for erection of advertisement at hoarding on its lands although under section 282 sub section 23 they were required to do so and referred to the judgment of the learned Single Judge of this Court in the case of Clifton Centre, quoted supra, where the learned Single Judge had specifically ordered that an elaborate policy may be framed in this respect. He referred to the statement filed by the respondent Clifton Cantonment Board in which only the minutes of a meeting were given which did not specify such policy. He also referred to written statement of the Clifton Cantonment Board in which the Clifton Cantonment Board has specifically stated that the hoarding was illegal and illegitimate but was not being removed because of the pendency of this suit before this Court. He therefore, prayed that the order of the learned Single Judge may be set-aside and the ad-interim injunction granted to him earlier may be restored.
4. Mr. Ashraf Ali Butt, arguing on behalf of Clifton Cantonment Board, first of all clarified that at that stage since initially the hoardings were directed to be removed because of a windstorm in which a number of hoardings had fallen down and caused damage to life and property and secondly that the payment for renewal of the signboard permission had not been paid. He submitted that later on the policy regarding installations of hoardings has been revised subject to the condition that it can meet the test of windstorm lashing at a speed of 150 K.m. and the renewal fee has been paid so now they are not treating them as illegal and illegitimate and he read section 5 of the Cantonment Act to point out that in respect of the areas falling under the Clifton Cantonment Board even directions issued become a policy in respect of that particular subject.
5. Without prejudice to his above arguments he submitted that the matter of grant of permission to put up the hoarding is a matter between the Cantonment Board and the respondent No.3 and does not concern or confers any rights on the present appellant.
6. Mr. Abdul Sattar Pirzada also relied on the judgment of this Court in the case of Clifton Centre, quoted supra, relied on by the learned counsel for the appellant and submitted that despite his observations the learned Single Judge finally allowed the advertisement company to erect the hoarding/signboard subject to raising it to a height and in such a manner as may not obstruct the view of the vision and elevation of the plaintiff’s commercial establishment in that case. He also stressed upon the observation of the learned Single Judge that the right of that party will prevail who has first exercised the right and submitted that he was a tenant of that hoarding since 2001 whereas the property in question of the appellant was started to be constructed somewhere in 2006 and suit was filed in 2008. He referred to the two Commissioner’s report and submitted that since he had filed objections to first Commissioner’s report therefore the Nazir was appointed as second Commissioner and the learned counsel for present appellant and the plaintiff in the suit had not filed any objection against the Nazir’s report.
7. We have examined the case in the light of the arguments of the learned counsel and have perused the records of the case, law on subject and judgments relied on by the learned counsel. The learned single judge has after examining the facts of the case and scrutinizing the Commissioner’s report came to conclusion that on viewing the photograph taken by the first Commissioner and the second Commissioner the view, vision and the elevation of the appellant’s property was not being blocked but as a matter of caution he had instructed the present respondent to raise the hoarding by another 15 feet and move it to the eastern side. He has also observed that a KESC Transformer was also present at that site which was never objected by the appellant. He also reached the conclusion that the hoarding is not on the property of the appellant but is either on the road or on the park and is not creating a nuisance for the appellant.
8. We have also noticed that in his application the learned counsel had not taken the legal plea that the Cantonment Board was not authorized to give this site for erection of a hoarding on rent as there was no policy in this regard, despite the directions of the learned Single Judge to frame rules given in the Clifton Centre judgment quoted supra. However the learned counsel when confronted with this position argued that it is a legal question going to the very root of the matter and can be raised at any stage.
9. Be that as it may we are satisfied with the arguments of the learned counsel for the Cantonment Board that a policy has been invoked through instructions and that policy has been extended by the minutes of the meeting of Cantonment Board, which have been produced before us and according to this policy they had a right to rent out this hoarding to respondent No.3. Even otherwise as far as the factual details are concerned we are of the considered view that the learned Single Judge has taken cognizance of all the factual details and has passed a fair and judicial order which is unexceptionable and no interference is called from the Court. We also find ourselves in complete agreement with his views as he had imposed certain condition on the respondent No.3 before they can erect this hoarding and has thereby brought his judgment within the four corners of his judgment in Clifton Centre case quoted supra.
10. This appeal therefore does not merit consideration and is dismissed alongwith pending applications.
11. After we had dictated the order the learned counsel for the appellant requested that directions may be issued to the learned Single Judge to dispose off the matter within a stipulated period. We are putting the learned counsel for the respondents No.1 & respondent No.3 on notice that they would not seek adjournments during the hearing of the suit and request the learned Single Judge to carry on the proceedings of the suit expeditiously and try to dispose it off as soon as possible but preferably within a period of four months from the date of this order.
JUDGE
JUDGE
Sajid