2010 M L D 1267

[Karachi]

Before Muhammad Ali Mazhar, J

Sayyid YOUSAF HUSAIN SHIRAZI---Plaintiff

Versus

PAKISTAN DEFENCE OFFICERS' HOUSING AUTHORITY and 2 others---

Defendants

Suit No. 1610 of 2009, decided on 4th June, 2010.

(a) Civil Procedure Code (V of 1908)---

----[Link], Rr. 1 & 2---Temporary injunction, grant of---Essential

conditions to be considered by Court stated.

An old age golden rule of granting injunction: (i) the prima facie
existence of right in the plaintiff and its infringement by the
defendant or the existence of a prima facie case in favour of the
plaintiff; (ii) an irreparable loss, damages or injuries which may occur
to the plaintiff, if the injunction is not granted; (iii) the inconvenience
which the plaintiff will undergo from withholding the injunction will be
comparatively greater than that which is likely to arise from granting it
or in other words the balance of convenience should be in favour of
the plaintiff. All three essential ingredients must be fulfilled. Absence of
anyone of such ingredients would not warrant grant of injunction.
Court at this stage has to make only a tentative assessment of the case
for enabling itself to see whether three requisites for grant of
injunction exist in favour of plaintiff or not. Relief of injunction is
discretionary and is to be granted by Court according to sound legal
principles and ex debito justitiae. Existence of prima facie case is to be
judged or made out on the basis of material/evidence on record at the
time of hearing of injunction application and such evidence of material
should be of the nature that by considering the same, Court should or
ought to be of the view that plaintiff applying for injunction was in all
probability likely to succeed in the suit by having a decision in his
favour. The term "prima facie case" is not specifically defined in the Code
of Civil Procedure. The Judge- made-law or the consensus is that in order
to satisfy about the existence of prima facie case, the pleadings must
contain facts constituting the existence of right of the plaintiff and its
infringement at the hands of the opposite party. Balance of
convenience means that if an injunction is not granted and the suit is
ultimately decided in favour of the plaintiff, the inconvenience caused
to the plaintiff would be greater than that would be caused to the
defendant, if the injunction is granted. It is for the plaintiff to show
that the inconvenience caused to him would be greater than that
which may be caused to the defendant. Irreparable loss would mean and
simply such loss, which is incapable of being calculated on the
yardstick of money.

(b) Civil Procedure Code (V of 1908)---

----S. 11---Res judicata, application of---Conditions stated.

In order to press provisions of section 11, Cr.P.C., five conditions have to

be spelt out: (i) the matter directly and substantially in issue in the
subsequent suit must be the same matter, which was directly and
substantially in issue actually or constructively in former suit; (ii) the
former suit must have been a suit between the same parties or between
the parties whom they or any of them claim; (iii) the parties as aforesaid
must have litigated under the same title in the former suit; (iv) the
Court which decided the former suit must have been a Court competent
to try the subsequent suit in which such issue is subsequently raised;
and (v) the matter directly and substantially in issue in subsequent
suit must have been heard and finally decided by the Court.

(c) Words and phrases---

----"Amenity plot"---Meaning.

"Amenity plot" means a plot reserved for parks, gardens, playgrounds,

graveyards, hospitals, schools, colleges, libraries, community centres,
mosques or such other purpose in a scheme.

(d) Specific Relief Act (I of 1877)---

----Ss.52, 53, 54, 55 & 57---Injunction, grant of---Scope---Party seeking

such an equitable relief must satisfy Court that his own acts and
dealings in matter have been fair, honest and free from any taint or
illegality---Principles stated.

An injunction is a writ framed according to the circumstances of the

case commanding an act which the Court regards as essential to justice
or restraining an act, which it esteems contrary to equity and good
conscience. An injunction as is well known is an equitable remedy
and accordingly is to conform to the well known maxim of the Law of
Equity that "he who seeks equity must do equity". The law as
contained in the Specific Relief Act is governed by the aforesaid
principle, therefore, a plaintiff who asks for an injunction must be able
to satisfy the Court that his own acts and dealings in the matter have
been fair, honest and free from any taint or illegality and that if in
dealing with the person against whom he seeks the relief, he has
acted in an unfair or un equitable manner, he cannot have this relief.

Jeremy's Equity Jurisprudence 307 (C.M. Row, Law of Injunction, Seventh

Edition 1994) fol.

(d) Equity---

----Equitable remedies---Classification stated.

Equitable remedies are distinguished by their flexibility, their limitless

varieties, their adaptability to the exigencies of case and the natural
rules which govern their use. According to their essential nature, they
may be classified into (1) Declaratory remedies are those whose main
object is to declare, confirm and establish the right, title, property or
estate of the suit or (plaintiff) whether it be equitable or legal. (2)
Restorative remedies are those by which the plaintiff is restored to the
full enjoyment of the right, title, property or estate to which he is entitled,
but which use and enjoyment have been hindered, interfered with,
prevented or withheld by the wrong-doer. They are often granted in
combination with other kinds of relief which as cancellation of
instruments or remove a legal obstacle to the full enjoyment of
plaintiff 's right and to render them efficient in restoring him to that
enjoyment. The mandatory injunction belongs to this class of restoratory
remedies. (3) Preventive remedies, are those by which the violation of a
primary right is prevented before the apprehended injury is done, or by
which further violation is prevented after the partial infliction of injury
so that some other relief for the wrong actually done can be granted. The
injunction whether final or preliminary belongs to this class. (4)
Remedies of specific performance are those by which the party violating
his primary duty is compelled to do the very acts which his duty and the
plaintiff's primary right required from him. (5) Remedies of reformation,
correction or re-execution are those by means of which a written
instrument, contract, deed or other muniment which for some reason or
other does not conform to the actual rights and duties of the parties
thereto, is reformed, corrected or re-executed. (6) Remedies of rescission
or cancellation are those by which an instrument, contract, deed,
judgment and even sometimes a legal relation itself subsisting between
the parties is, for some cause, set aside, avoided or annulled or rescinded.
(7) Remedies of pecuniary compensation are those in which the relief
consists in awarding a sum of money for the damage caused to the
plaintiff. (8) The remedy of accounting is analogous to the remedy of
compensation, and is generally used in connection with an auxiliary to
some forms of it. It has to be a great extent becomes an equitable
remedy though it partakes of the character of a legal remedy.

Pomeroy's Equity Jurisprudence, section 112, (C.M. Row, Law of

Injunction, Seventh Edition 1994) fol.

Arshad Tayebally for Plaintiff.

Munawar Malik for Defendant No.1.

Khalid Anwer for Defendants Nos. 2 and 3.

ORDER

MUHAMMAD ALI MAZHAR, J.-By this order, I will dispose of C.M.A. No.
10349 of 2009 filed by the plaintiff under Order XXXIX, Rules 1 and 2,
C.P.C., and C.M.A. No. 524 of 2010 filed by the defendants Nos. 2 and 3
under Order XXXIX, Rule 4, C.P.C.

In C.M.A. No.10349 of 2009, the plaintiff has prayed for restraining orders
against the defendants, from carrying out and/or attempting to carry out
any construction of any nature on the subject property or using the
subject property for any purpose other than a green plot, pending
final disposal of the main Suit. In the supporting affidavit, the plaintiff
has stated that the defendant No.1 has prepared number of schemes for
development of residential use, commercial use, uses for amenity, use for
roads, streets, lanes, parks; shoulders and general easements. The
plaintiff on 6-3-1978 acquired a Plot No.2 at Khayaban e-Ghazi (Survey
Sheet No.26) in the layout plan of the entire Phase-V. The defendant No.1
executed a lease in respect of the said plot in favour of the plaintiff. At
the time of execution of the said lease, all plots of land generally in
Phase-V and particularly in the areas adjoining the plaintiff's property
were competently allotted, residential houses were constructed, roads,
streets, shoulders, parks, amenity plots were fully defined. Plot No.35/1
was leased out to the defendant No.2 which is located 90 feet away
towards the North-East of the plaintiff's property and was bounded on
the North-West by 5th Gizri Street, on the South by 80' wide road
known as Khayaban-e-Jabal, on the East by plot No.37 and on the West by
an open triangular land being part of a road and meant to be used as a
road/shoulder/amenities for the public in general and the residents of the
neighbouring area in particular. In the year, 1980, the subject property
was tried to be encroached upon by the defendants Nos. 2 and 3 by
constructing a wall but on the protest of the neighbouring residents, the
defendant No.1 demolished the unauthorized construction of the said
walls. On 3-9-1990, the defendants Nos. 2 and 3 once again commenced
construction of compound walls on the subject property and the plaintiff
immediately objected to the unauthorized construction and reported the
matter to the defendant No.1 which objection was also followed by the
other residents. On 20-9-1990, the Administrator of the defendant No.1
visited and inspected the subject property and after considerable
discussion on various occasions with the plaintiff, the defendants and
the neighbouring residents, an agreement was arrived at between the
parties whereby part of the subject property at both sides of the corner
measuring 60/70 feet (against 100 feet demand) off Khayaban-e-Jabal
and the road on the South side of the plot No.35/1 was to be left open
and the subject property was to be beautified by
landscaping/plantation and low level metallic grill. In breach of the said
terms of the agreement, the defendants with connivance and collusion
attempted to construct a wall on the Khayaban-e-Jabal side and as
such the plaintiff filed a Suit No.611/91 in this Court for Declaration,
Injunction and Damages. The said suit was subsequently transferred to
IVth Senior Civil Judge, Karachi, South and thereafter, it was
dismissed for non-prosecution on 5-8-2000, whereafter, the defendants
confirmed and agreed that the subject property would remain as a
park/green land as such the plaintiff did not pursue the restoration of
the said Suit. It has been further alleged that the plaintiff has been
addressing letters to the defendant No.1. The defendant No.1 by its letter
dated 27-11-2006 confirmed that the concerns of the plaintiff were
genuine and it was reiterated by the defendant No.1 in the letter dated
27-11-2006 that the subject property was given to the defendant No.2 on
her request for developing it into a green plot. In spite of several
letters calling upon the defendant No.1 to ensure that the subject
property cannot be used for any purpose other than as a green plot, no
response was given, however a letter dated 13-4-2009 was sent by the
defendant No.1 in which the defendant took a complete somersault and
completely ignored the previous undertakings and assurances given by
the defendant No.1 and stated that the subject property was not for a
green plot and that the same had been given to the defendant No.2 on
her request as extra land. The defendant No.1 at the behest of defendant
No.2 is illegally attempting to convert the subject property, which was
reserved for a green plot. The defendants in disregard of their obligation
to maintain the subject property as a green plot, started construction in
November, 2009 and raised a boundary wall covering the subject
property and heavy machinery brought to start illegal construction on
the subject property hence this Suit has been filed along with injunction
application.

The attorney of the defendant No.2 has filed counter affidavit and has
denied the claim of the plaintiff. Preliminary legal objections have also
been raised that the instant application is not maintainable in law and/or
otherwise has been filed in gross abuse of the process of this Court. The
suit is barred under section 11, C.P.C., the plaintiff had filed earlier Suit
No.611/1991 along with an application for stay against the defendants
before this Court in relation to the same subject property, however
plaintiff's stay application was dismissed, after recording of evidence
vide order dated 7-4-1993. The plaintiff thereafter preferred a High Court
Appeal No.85 of 1993 which was subsequently disposed of vide order,
dated 29-9-1993 without modifying the order passed in the stay
application, hence the order of the dismissal of stay application attained
finality. The said suit was subsequently dismissed for want of evidence
vide order dated 21-12-1995, thereafter, it was restored and transferred
to civil Court but again it was dismissed for non-prosecution,
therefore, the plaintiff is not entitled to re-agitate, a matter which has
been conclusively decided by the Court earlier. The plaintiff has
approached this Court with unclean hands inasmuch as he has
suppressed/concealed material facts, which is evident from the very fact
that he has deliberately suppressed the filing and dismissal of the earlier
stay application, hence plaintiff is not entitled to any relief. No cause of
action has accrued to the plaintiff in relation to the subject property
which is owned by the defendant No.2 and the instant application along
with the suit is liable to be dismissed.

On 20-1-2010, the defendants Nos. 2 and 3 filed C.M.A. No.524/2010 under

Order XXXIX, Rule 4, C.P.C. in which they have prayed that the order
dated 18-1-2010 may be vacated and the defendants Nos. 2 and 3 may
be allowed to carry on the construction on the subject plot. In the
supporting affidavit, the defendant No.3 has stated that the plaintiff
obtained an order, on 18-1-2010 without disclosing correct facts. This
Court had refused to grant the plaintiff, an ad interim injunction on the
previous date of hearing, thus there was no violation of whatsoever of
any Court order. On 16-11-2009 the Court had made an observation that
the construction carried out by the defendants Nos.2 and 3 would be
subject to the final orders of this Court. Since no further order in this
regard had been passed by this Court, question of its violation does not
arise. The instant suit is merely a replica of earlier suit filed by the
plaintiff in relation to the same property in which the plaintiff's stay
application was dismissed. Although the fact of earlier suit is mentioned
in the plaint of the present suit, however the fact of dismissal of the stay
application has been wilfully suppressed with mala fide intentions.
Counter affidavit was filed by the plaintiff in which the plaintiff
reiterated the contents of the application filed under Order XXXIX, Rules
1 and 2, C.P.C. The plaintiff stated that the allegation of obtaining an
order on 18-1-2010 by not apprising this Court the correct fact is
completely false and unwarranted. The order dated 16-11-2009 is self
explanatory. The plaintiff has mentioned the fact of filing of the earlier
suit in the present Suit. The present suit is not barred by section 11, C.P.C.
In the earlier suit the plaintiff had challenged allotment in favour of the
defendants Nos.3 and 4 whereas in the present suit the plaintiff has not
challenged the allotment but has sought a declaration and injunction to
the effect that the defendants Nos. 2 and 3 should maintain the subject
property as a green plot. After dismissal of the earlier suit, the officials
of the defendant No.1 confirmed time and again the concern of the
plaintiff that the subject property would be, kept as a green plot.

I have heard the learned counsel for the parties and gone through
the material available on record. No case law was cited by the learned
counsel in support of their arguments.

The record shows that first time, the matter was fixed in this Court on 16-
11-2009. Learned Single Judge instead of granting any ad interim orders,
clarified that in case the subject plot is established as green belt or meant
for green area, the construction, if any will be subject to the order of
this Court. It is clear from the aforesaid order that there was no
restraining order. In fact, it was made clear that in future if plot is found
to be green plot/green belt, the construction, if any on the said plot will
be subject to the order of this Court. On 18-1-2010, the matter was again
fixed in the Court on which date the learned counsel for the plaintiff
produced photographs to show that the Court's order dated 16-11-2009 is
being wilfully defied.

The learned counsel for the plaintiff has argued in chronological order
that on 17-5-1975 form "A" for the Plot No.35/1, Khayaban-e-Jabal was
executed for the land admeasuring 1712-28 sq. yds. On 31-1-1981, 578
[Link] as extra land was allotted to Mrs. Nafees Yasin Malik. After
allotment of this extra land, Form "B" Lease was executed in the name of
Lessee for a total area of land measuring 2290.28 sq. yds. The learned
counsel argued that no Form "A" was executed for extra land. The
learned counsel for the plaintiff further argued that vide amending deed
dated 29-9-1990, further land measuring about 623 sq. yds. was allotted
to the defendant No.2 and the revised site plan was also issued on 13-9-
1990. The learned counsel states that the lastly allotted land measuring
623 sq. yds. was in fact a green plot and this cannot be utilized for any
other purpose. In paragraph 15 of this suit, the learned counsel for the
plaintiff has categorically stated that the same plaintiff earlier filed Suit
No.611 1 in this Court for declaration, injunction and damages against
the Pakistan Defence Housing Authority, Karachi Electric Supply
Corporation and the present defendants Nos. 2 and 3. He further added
that subsequently, the suit was transferred to the lower court and on 5-8-
2000 it was dismissed for non-prosecution. Subsequent to the dismissal of
the suit, the defendants confirmed and agreed that the subject property
would remain as green plot as such the plaintiff did not pursue the
restoration of the earlier suit. In order to distinguish and to show that the
second suit is not hit by the principle of res judicata, the learned counsel
for the plaintiff has argued that the cause of action of this suit arose on
13-4-2009 when the defendant No.1 informed the plaintiff that the
subject property was not to be used as green plot and has been given to
the defendant No.2 on her request as extra land. The learned counsel for
the plaintiff has also attached a letter issued by the Secretary, Pakistan
Defence Officers' Housing Authority to the plaintiff on 27-11-2006 in
which it has been informed by the Secretary to the plaintiff that the area
adjacent to plot No.35 Khayaban- e-Jabal, which had been lying barren in
the past, was given to Mrs. Yasin Malik on her request for developing it
into a green plot. The same has not yet been accomplished, however she
is being urged to develop the same on priority basis. According to
learned counsel for the plaintiff, the letter dated 27-11-2006 is binding
on the defendant No. 1 keeping in view the doctrine of "Indoor
Management". In the letter dated 13-4-2009, Director TP & BC of the
defendant No.1 informed the plaintiff that the area adjacent to plot No.35
Khayaban-e-Jabal was not a park and has been given to Mrs. Yasin Malik
on her request as extra land. It was further submitted that although the
case was resolved by the then Administrator Major General (R)
Hidayatullah Niazi in 1990 in the presence of plaintiff however, the
plaintiff twice chosen to go to the Court as well. On both occasions, the
cases have been dismissed by the Courts. It was further stated that any
interference in the subject matter will amount to contempt of Court. The
plaintiff has also attached few letters written in the year, 2006 and
onwards to the defendant No.1 for the alleged unlawful allotment of land
reserved for green plot. Finally, the learned counsel for the plaintiff
has prayed that the defendants Nos.2 and 3 may be restrained from
raising any construction on the alleged green plot till the final decision of
this suit.

In nutshell, the learned counsel for the plaintiff has argued that though
the earlier suit was dismissed but his second suit is based on altogether
different cause of action and, in fact, for this Suit cause of action arose to
the plaintiff on the basis of letter dated 13-4-2009. The learned counsel
has also argued that green plot cannot be allotted to the defendants
Nos.2 and 3 as it was reserved for amenity purpose, therefore the
defendants Nos.2 and 3 should be restrained from raising any
construction on the subject piece of land.

In rebuttal, the learned counsel for the defendants Nos.2 and 3 Mr.
Khalid Anwer has invited my attention to R & P of Suit No.611/91, which
was transferred to the civil Court. The learned counsel has referred to an
order dated' 7-4-1993 passed by this Court in suit No.611/91, by which
injunction application was dismissed. The plea of the same plaintiff in
that suit was also same that the land in question was earmarked as an
amenity plot. In order to ascertain whether the subject land was an
amenity plot or not, the learned Judge of this Court recorded the
evidence of S. Hamid Ali, Assistant Engineer of defendant No.1, who had
also produced the relevant plans in Court. The said Assistant Engineer
deposed in the Court that the disputed land was never reserved and used
as amenity plot. The learned counsel for the defendants Nos. 2 and 3
further added that Master Plan was also submitted in that case and it
was never proved that the land involved in this suit or in that suit, which
is more or less same, was ever declared or reserved for any amenity
purpose. The witness in that case also stated in Court that in case of
amenity plots, the Master Plan indicates the purpose for which plots are
reserved. The learned Single Judge of this Court finally observed that
there is nothing in the evidence or in the maps to show even prima facie
that the areas in the map marked with dots were reserved as amenity
areas, therefore, the injunction application was dismissed. The learned
counsel for the defendants Nos.2 and 3 has also attached the deposition
of S. Hamid Ali recorded in Suit No.611/91. He further argued that the
same plaintiff had preferred High Court Appeal No.85/93, however vide
order dated 29-9-1993, the appeal was disposed of with the direction that
office shall take necessary steps to place the suit before the learned
Single Judge at original side expeditiously so as to ensure that Suit
No.611/91 is disposed of within a year's time, but no restraining order
was passed in High Court Appeal except allowing an early hearing of the
suit. The learned counsel further added that matter was fixed on 21-12-
1995 before the learned Single Judge for evidence but neither any
witness was present nor single witness was examined, therefore the
learned single judge of this Court observed that after dismissal of
injunction application, the plaintiff has lost interest in the suit, hence the
suit was dismissed for want of evidence. Again on an application of the
plaintiff, the suit was restored to its original position, but it was again
dismissed by the transferee court on 5-8-2000 for non-prosecution. The
learned counsel further added that the plaintiff has completely failed to
produce any document to show that the said area was ever declared as
amenity plot or green plot. In fact, there is no category of amenity plot
reserved as green plot. The learned counsel further argued that letter
dated 27-11-2006 has no legal sanctity as the Secretary of defendant No.1
has no lawful authority to declare any piece of land as amenity or green
plot. The learned counsel further relied upon a letter dated 22-10-1990,
which was issued by the Administrator of the defendant No.1 to the
plaintiff. This letter says that on the request of plaintiff, the
Administrator visited the site on 28-9-1990, some of the residents of
Khayaban-e-Jabal were also present and participated in the discussion.
On site inspection, it revealed that there was no encroachment. The area
brought under occupation by construction of wall in no way exceeds the
plot boundaries including the area regularized by the Authority. The
extra land available was allotted after due consideration for the
requirements of road width, traffic flow and alignment of boundary
walls of the neighbouring houses. The Administrator further observed in
his letter that discussion on the site was quite healthy and in detail and
his suggestions or recommendations were agreed by the defendant No.3,
most of the residents and the plaintiff. The Administrator further stated
in his letter that he firmly pointed out that shifting of wall was
unjustified as no encroachment is involved, however as suggested and
agreed by Mr. Yasin Malik, the triangular part of the plot at the corner
measuring about 40 feet on Khayaban-e-Jabal may be left open and
beautified by landscaping, plantation and low level metallic grill to
provide good visibility to the pedestrians etc. In the concluding
paragraph, the Administrator informed the plaintiff that when he left
the site, he was under the impression that the matter stood resolved not
knowing that the plaintiff would start afresh agitating the same point.
The learned counsel for the defendants Nos. 2 and 3 states that as
observed by the Administrator, 40 feet area has already been left for
beautification purposes as agreed in presence of the Administrator.
He further argued that the plaintiff has suppressed and concealed the
material facts from this Court. The contents of the present suit and Suit
No.611/91 are more or less same and, in fact, the plaintiff has tried to
reopen the past and closed transaction and has made an attempt to
resurrect the controversy, which has already been set at rest in the
earlier round of litigation. Finally, the learned counsel for the defendants
Nos. 2 and 3 has argued that the injunction application is liable to be
dismissed with cost as the plaintiff has failed to make out any prima
facie case, balance of convenience in fact lies in the favour of defendant
No.2, who has been allotted the plot legally by the defendant No.1 and
there is no logical justification to restrain the defendant No.2 from
raising the construction on her lawfully allotted plot. No irreparable
injury would be caused to the plaintiff if injunction application is
dismissed. On 16-11-2009, no interim orders were passed in favour of
the plaintiff but the matter was again placed before the Court on 18-1-
2010 on urgent motion and by distorting the facts, interim orders
were obtained on concealment of facts. Since no interim order was
passed on 16-11-2009, hence question of its defiance does not arise.
The learned counsel for the defendant No.1 has relied upon the record
and proceedings of the Suit No.611/91 and he has also confirmed that
the plot in question was never declared or earmarked as amenity or
green plot. He has also negated the letter issued by the Secretary, DHA to
the plaintiff on 27-11-2006. He further argued that the power of
allotment of plot is vested in the Managing Committee and the
Secretary has no role to play. He has no lawful authority to declare any
plot as an amenity plot. He also argued that the Secretary had
communicated the letter in pursuance of a letter addressed by the
Administrator, DHA to the plaintiff on 22-10-1990, whereby 40 feet area
was agreed to be left open and beautified by landscaping/plantation. He
has also argued that this controversy has already been resolved in the
earlier suit in which parties and subject matter both were same. The
present suit is completely hit by the principle of res judicata. The
plaintiff has no legal character or locus standi to file the present suit
after his failure in the earlier round of litigation. In the earlier suit, the
injunction application was dismissed, the plaintiff had filed High Court
appeal which was also disposed of without any restraining order, then
the suit was fixed for evidence but due to want of evidence the suit was
dismissed in non-prosecution. After dismissal of the suit in the year,
2000, no further steps were taken by the plaintiff and again in the year,
2009 he has filed this vexatious proceeding with mala fide intention.
Not only the injunction application but the whole suit is liable to be
dismissed with exemplary cost.

After hearing the pros and cons of this cause, I have to consider first
and foremost, an old age golden rule of granting injunction:

(i) The prima facie existence of right in the plaintiff and its
infringement by the defendants or the existence of a prima facie
case in favour of the plaintiff;

(ii) An irreparable loss, damages or injuries which may occur to

the plaintiff if the injunction is not granted;

(iii) The inconvenience which the plaintiff will undergo from

withholding the injunction will be comparatively greater than that
which is likely to arise from granting it or in other words the
balance of inconvenience should be in favour of the plaintiff.

All three essential ingredients must be fulfilled. Absence of anyone of

such ingredients would not warrant grant of injunction. Court at this
stage has to make only a tentatively, assessment of the case for enabling
itself to see whether three requisites for grant of injunction exist in
favour of plaintiff or not. Relief of injunction is discretionary and is to be
granted by Court according to sound legal principles and ex debito
justitiae. Existence of prima facie case is to be judged or made out on the
basis of material/evidence on record at the time of hearing of injunction
application and such evidence or material should be of the nature that by
considering the same, Court should or ought to be of the view that
plaintiff applying for injunction was in all probability likely to
succeed in the suit by having a decision in his favour. The term "prima
facie case" is not specifically defined in the Code of Civil Procedure. The
Judge- made-law or the consensus is that in order to satisfy about the
existence of prima facie case, the pleadings must contain facts
constituting the existence of right of the plaintiff and its infringement at
the hands of the opposite party. Balance of convenience means that if an
injunction is not granted and the suit is ultimately decided in favour of
the plaintiffs, the inconvenience caused to the plaintiff would be greater
than that would be caused to the defendants if the injunction is granted.
It is for the plaintiffs to show that the inconvenience, caused to them
would be greater than that which may be caused to the defendants.
Irreparable loss would mean and imply such loss which is incapable of
being calculated on the yardstick of money.

The learned counsel for the defendants have also argued forcefully that
the present suit is also hit by res judicata as in the previous suit entire
controversy has already been resolved between the same parties. In
order to press provisions of section 11, C.P.C. following five conditions
have to be spelt out:

(i) the matter directly and substantially in issue in the subsequent

Suit must be the same matter, which was directly and substantially
in issue actually or constructively in former Suit;

(ii) the former Suit must have been a suit between the same parties
B or between the parties under whom they or any of them claim;

(iii) the parties as aforesaid must have litigated under the same
title in the former Suit;

(iv) the Court which decided the former suit must have been a
Court competent to try the subsequent Suit in which such issue is
subsequently raised; and

(v) the matter directly or substantially in issue in subsequent Suit

must have been heard and finally decided by the Court.
In this suit, the learned counsel for the plaintiff has tried to distinguish
the cause of action of both the suits. In fact, he has relied upon a letter
dated 27-11-2006 in which the Secretary of DHA has informed the
plaintiff that the area adjacent to plot No.35, Khayaban-e-Jabal, which
had been lying barren in past, was given to Mrs. Yasin Malik on her
request for developing it into a green plot, the same has not yet been
accomplished, however she is being urged to develop the same on
priority basis and further cause of action allegedly accrued to the
plaintiff vide letter dated 13-4-2009 in which Director TP & BC of the
defendant No.1 informed the plaintiff that the aforesaid plot was not
park and has been given to Mrs. Yasin Malik on her request as extra
land. The same letter further refers to the matter which was resolved by
the then Administrator in the year 1990 in the presence of the plaintiff.
The learned counsel for the plaintiff has also argued that letter dated 27-
11-2006 written by the Secretary, DI-TA is binding and the doctrine of
Indoor Management is fully applicable while the learned counsel for the
defendant No.1 has argued that in presence of registered Form "A" Sub-
Lease, Form 'B' Lease, registered amending deed dated 29-9-1990 and site
plan issued by the defendant No.1, the Secretary has no right and
authority to declare any plot as green plot and he has also denied that
the doctrine of Indoor Management is applicable in this case. He further
argued that in presence of registered Indenture of sub-least and
amending deed, the letter dated 27-11-2006 has no legal sanctity. In my
view for all these aspects whether the suit is hit by the principle of res
judicata and or whether the letter, dated 27-11-2006 which is a burning
question, has binding effect or not or whether the doctrine of Indoor
Management applies, proper issues are required to be settled and in
order to settle this controversy at rest, evidence is necessary. The learned
counsel for the plaintiff has also invited my attention to a letter dated 22-
10-1990, which was communicated by the Administrator, DHA to the
plaintiff, which shows that he visited the site in presence of parties
and by mutual discussion settlement was reached which is also
reflecting from the last letter of DHA dated 13-4-2009. Another important
aspect has also to be seen at the time of final adjudication of this case
that on 21-12-1995, earlier Suit No.611/91 filed by the plaintiff was
dismissed for want of evidence, which was restored, subsequently it was
again dismissed on 5-8-2000. After dismissal of this suit, no further
steps were taken by the plaintiff in the matter. The learned counsel for
the plaintiff argued that since the defendant No.1 was continuously
giving assurances, therefore they did not take any action after dismissal
of the suit in the year, 2000. It is evident from the documents filed by the
plaintiff alongwith the plaint that annexure F/1 was written by the
plaintiff to the DHA on 19-5-2006, which was replied by the Secretary of
DHA on 27-11-2006. Except this letter, there is nothing available on
the record to prove as to what steps the plaintiff took in the intervening
period. The order dated 7-4-1993 passed in Suit No. 611/91 whereby the
learned Judge of this Court dismissed the injunction application clearly
shows that the Assistant Engineer of DHA was called in the Court who
had also produced the Master Plan. The witness categorically stated that
the disputed land was never reserved and used as
shoulder/road/amenity. He had further stated that in the original plan,
the plot in question like several other plots have been dotted and such
dotted plots were subsequently allotted to the members of the
defendant No. 1. The learned Single Judge finally held that there was
nothing in the evidence or in the maps to show even prima facie that
the areas in the maps marked with dots were reserved as amenity
areas. It was further observed in the same order that the witness also
stated that in the case of amenity plots, the plan indicates the purpose for
which they are reserved. The learned counsel for the plaintiff has failed
to show from any document that the plot in question was ever declared
as amenity plot. The normal definition of "amenity plot" means a plot
reserved for parks, gardens, playgrounds, graveyards, hospitals,
schools, colleges, libraries, community centres, mosques or such other
purpose in a scheme.

It would be useful to quote Jeremy's Equity Jurisprudence 307 (C.M. Row,

Law of Injunction, Seventh Edition 1994) which says that an injunction is
a writ framed according to the circumstances of the case commanding an
act which the court regards as essential to justice, or restraining an act
which it esteems contrary to equity and good conscience. An injunction
as is well known is an equitable remedy and accordingly is to conform to
the well known maxim of the law of Equity, that "he who seeks equity
must do equity". The law as contained in the Specific Relief Act is
governed by the aforesaid principle, therefore, a plaintiff who asks for an
injunction must be able to satisfy the court that his own acts and
dealings in the matter have been fair, honest and free from any taint or
illegality and that if in dealing with the person against whom he seeks
the relief, he has acted in an unfair or un-equitable manner he cannot
have this relief.

According to Pomeroy's Equity Jurisprudence, section 112, (C.M. Row,

Law of Injunction, Seventh Edition 1994), equitable remedies are
distinguished by their flexibility, their limitless varieties, their
adaptability to the exigencies of case and the natural rules which govern
their use. According to their essential nature they may be classified into
(1) Declaratory remedies, are those whose main object is to declare,
confirm and establish the right, title, property or estate of the suit or
(plaintiff) whether it be equitable or legal. (2) Restorative remedies, are
those by which the plaintiff is restored to the full enjoyment of the right,
title, property or estate to which he is entitled, but which use and
enjoyment have been hindered, interfered with, prevented or withheld
by the wrong-doer. They are often granted in combination with other
kinds of relief such as cancellation of instruments or remove a legal
obstacle to the full enjoyment of plaintiff's right and to render them
efficient in restoring him to that enjoyment. The mandatory injunction
belongs to this class of restoratory remedies. (3) Preventive remedies, are
those by which the violation of a primary right is prevented before the
apprehended injury is done, or by which further violation is prevented
after the partial infliction of injury so that some other relief for the
wrong actually done can be granted. The injunction whether final or
preliminary belongs to this class. (4) Remedies of specific performance,
are those by which the party violating his primary duty is compelled to
do the very acts which his duty and the plaintiff's primary right required
from him. (5) Remedies of reformation, correction or re-execution are
those by means of which a written instrument, contract, deed or other
muniments which for some reason or other does not conform to the
actual rights and duties of the parties thereto, is. reformed, corrected or
re-executed, (6) Remedies of rescission or cancellation, are those by
which an instrument, contract, deed, judgment and even sometimes a
legal relation itself subsisting between the parties is, for some cause, set
aside, avoided or annulled or rescinded. (7) Remedies of pecuniary
compensation are those in which the relief consists in awarding a sum of
money for the damage caused to the plaintiff. (8) The remedy of
accounting is analogous to the remedy of compensation, and is generally
used in connection with an auxiliary to some forms of it. It has to be a
great extent become an equitable remedy though it partakes of the
character of a legal remedy.

The bone of contention or a matter of concern between the parties is

related to a simple line of distinction and demarcation between two
propositions, one is the conversion of amenity plot into a residential
or commercial use or change of use, of an amenity plot to another
amenity purpose while another is a claim that an amenity plot has been
allotted by an authority to a person as an extra land. In the former, there
are number of judgments of the Superior Courts in which the
conversion of amenity plot into any other use is held to be unlawful and
illegal. In the latter case a clear and convincing evidence is required to be
demonstrated that the plot is an amenity plot and this was allotted as an
extra land for the personal use of an allottee. Though the plaintiff has
claimed that the plot in question is a green plot, but at this stage
failed to prove that the plot was ever reserved as green plot. Even the
defendant No.1 has taken the same defence not only in the previous
round of litigation but in this suit also that the plot was not meant or
reserved as green plot or amenity plot. At this stage, it is also not a
convincing argument that an extra land was allotted to the defendant
No.2 against the payment of consideration for making a green plot with
common access to general public. To establish parks, gardens etc. is the
responsibility of the concerned authorities for their members or
residents of locality. The plaintiff has failed to prove any violation or
infringement of his right. In order to sift grain from the chaff, evidence
is necessary where the letter dated 27-11-2006 written by the Secretary of
DHA will be weighed vis-a-vis the registered deed of lease, allotment
letter of extra land and the registered amending deed dated 29-9-1990.

Keeping in mind the whys and wherefores, the bottom line of this
discussion is that there is nothing on record to show that the plot in
question was an amenity/green plot. The plaintiff has failed to make out
any prima facie case for injunction. The balance of convenience also does
not lie in favour of the plaintiff and at this stage there is also no question
of irreparable injury, specially in the circumstances, where the learned
Senior Puisne Judge vide his order dated 16-11-2009 has already
clarified that in case subject plot is established as green plot, or meant for
the green area, the construction if any will be subject to the order of this
Court. The anxiety of plaintiff has already been addressed properly and
if after acid test of claim through convincing evidence, the plaintiff will
be able to prove that the disputed portion of the plot was ever meant for
green plot, any construction raised thereon will be subject to the order of
this Court. In all conscience, I am not inclined to grant discretionary
relief of injunction, the injunction application (C.M.A. NO.10349 of 2009)
is dismissed with no order as to cost. Since the injunction application has
been, dismissed, therefore, the application (C.M.A. No.524 of 2010) filed
by the defendants Nos. 2 and 3 under Order XXXIX, Rule 4 has become
infructuous and is disposed of accordingly.

S.A.K./Y-I/K Injunction refused.

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