MOBEEN KHATOON Versus BASHARAT ALI
1. This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 5‑12‑1993 passed by learned Vth Senior Civil Judge and Rent Controller, Karachi (South), in Rent Case No. 1988 of 1991, Basharat Ali v. Mst. Mobin Khatoon whereby an application moved under section 15(3) of the Rent Ordinance filed by respondent/tenant was allowed with the direction to the appellant/landlady to deliver possession of portion which was in possession of the respondent/tenant in the present condition within sixty days from the date of impugned order.
2. Brief facts of the case are that the appellant/landlady filed Ejectment Application No.5445 of 1978 under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, for ejectment of the respondent/tenant on the ground that shop premises No.2 and godown were required by the appellant/landlady in good faith for reconstruction which application was allowed on 11‑3‑1982 by learned VIIIth Senior Civil Judge and Rent Controller, Karachi, whereby respondent/tenant was directed to hand over vacant possession of disputed premises to the appellant/landlady within a period of two months. The respondent/tenant preferred First Rent Appeals Nos.396 and 397 of 1982 but the same were dismissed on 4‑3‑1986. Against the said order, respondent preferred Petitions for Leave to Appeals No.217‑K of 1986 and 218‑K of 1986 before the Supreme Court of Pakistan which petitions were dismissed on 24‑6‑1986 thereafter, the respondent/tenant handed over the possession of the shop and godown to the appellant in the month of June, 1986 but the appellant/landlady failed to demolish the building and to reconstruct the building, hence the respondent filed an application under section 15(3) of the Rent Ordinance which was disposed of as per impugned order, therefore, the present appeal has been preferred by the appellant/landlady.
3. I have heard Mr. Zafar Alam Khan, learned counsel for appellant and Syed Amjad Hussain learned counsel for respondent and perused the record and proceedings of the case.
4. Mr. Zafar Alam, learned counsel for appellant has argued that first floor of the said building was demolished by K.M.C. and there existed only four boundary walls and the main gate where the appellant was running her business, and the appellant could not reconstruct the building because of objections from the occupants of the adjoining building who have opened their ventilators towards the portion of the premises belonging to the appellant. He has further argued that present application filed is premature as the appellant has not started reconstruction of the building, therefore, unless the reconstruction is started, the application could not be filed for putting respondent/tenant in possession/occupation of the portion of the building vacated by the latter. He has also argued that the right if any accrued to the respondent would be governed under section 13(5)(5‑A) of the West Pakistan Urban Rent Restriction Ordinance, as the appellant had initially made ejectment application under section 13 of Repealed Rent Ordinance, 1'959. He has also referred to section 27 of the Rent Ordinance NO.XVII of 1979 and has placed reliance upon PLD 1982 Kar. 532, PLD 1983 SC 21, 1995 CLC 602 and 1992 SCMR 725 in support of his contentions.
5. Syed Amjad Hussain, learned counsel for respondent has argued that application made by him was maintainable and further that building has not been demolished as admittedly after ousting the respondent/tenant the appellant/landlady has fixed heavy machinery and was carrying on business of an engineering workshop within the four boundary walls on the said premises. He has argued that first floor of the building was already demolished and there remained only four boundary walls which have not yet been demolished by the appellant, therefore, in view of subsection (3) of section 15 of Rent Ordinance No.XVII of 1979 the respondent was entitled to the restoration of possession which the latter handed over to the appellant who has failed to demolish and reconstruct the building within the period as provided under subsection (3) of section 15 of Rent Ordinance, 1979. He has further argued that rights of parties would be governed by Rent Ordinance NO.XVII of 1979 and not under West Pakistan Urban Rent Restriction Ordinance, 1959. He has also placed reliance upon section 27 of Rent Ordinance, 1979 and PLD 1993 Karachi 304 in support of his contentions. He in the end has argued that the plea regarding the rights if any would accrue to the respondent under West Pakistan Urban Rent Restriction Ordinance was not taken in the written statement nor has been taken in the memo of present appeal, therefore, the same cannot be permitted to be agitated before this Court which otherwise has also no merit.
6. Parties' learned counsel in support of their contentions have also referred to affidavit‑in‑evidence of Basharat Ali and Chowdhary Muhammad Sultan, attorney of the appellant, three photographs of building, site inspection report of the Commissioner dated 30‑9‑1993.
7. There is no dispute on the point that the appellant/landlady has not started reconstruction of building within two years of taking over of possession of the premises from the respondent/tenant in the month of June, 1986. The only dispute between the parties is whether the appellant/landlady has demolished the building when the respondent/tenant has contended that it has not been demolished and the building was in the same shape as it was left by him and there were four boundary walls around premises land/plot over which building was to be reconstructed while the appellant/landlady has contended that the building premises has been demolished. Learned counsel for appellant has admitted that the appellant was carrying on her business over the land premises which was vacated by the respondent/tenant within four boundary walls. Respondent Basharat Ali in his affidavit‑in‑evidence in para. 7 has stated that he had handed over the possession of the shop and godown to the appellant/landlady in the month of June, 1986 and it was mandatory on her part to demolish the existing building within six months of taking over possession of the building and to erect new building within two years of taking over possession which the appellant/landlady has failed to do. The veracity of respondent/tenant could not be shaken in the cross‑examination by the learned counsel for appellant. The appellant's Attorney Chowdhary Muhammad Sultan in the cross‑examination admitted that he was running workshop in the premises previously occupied by tenant but there was his other shop in front of the said shop and that there were three walls of demised building still existing and that he had renewed the plan of the building in question and he did not intimate the learned Rent Controller as to why he was not raising construction of the demised building and that he was not prepared to reconstruct the demised premises and that after reconstruction he would deliver possession of the demised shop to the respondent/tenant, photographs Annexures C/1, C/2 and C/3 showed boundary walls and other household articles lying on the site premises. The Site Inspection Report dated 30‑9‑1993 in respect of premises in dispute would help in appreciating the evidence on record that there were three boundaries walls in existence with height of about 10 ft. while fourth boundary wall was of adjoining building and was on the backside which would be about 50 ft. in height with four ventilators above the 20 ft. from the ground level and there were two shutters and one main gate to the premises on the northern side and the premises in question was without any roof. There are three boundary walls and fourth boundary wall is of the adjoining building which surround the premises in dispute and there are machines viz. snapper machine, bending machine, lathe machine, two drill machines lying on the plot in working condition out of the said machines, three machines were covered with canvas and there were some cots lying on the plot with bedding and some chairs. There were four goats and one sheep tied with rope.
8. The evidence which has been brought on record would show that appellant/landlady after getting possession of the shop premises did not demolish the building within six months and the structure of the building which existed at the time of handing over possession by the respondent remained the same till the inspection was made and the appellant's attorney has admitted that he was carrying on business in the workshop on the premises/land. The word 'building' has been defined under section 2(a) of the Rent Ordinance, 1979 which reads:‑
9. "'Building"' means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garage, outhouse and open space attached or appurtenant thereto. "
10. In view of above definition of 'building' the existing structure and condition of the premises in question would be a 'building' in terms of definition under sub‑clause (a) of section 2 of Rent Ordinance. The evidence produced by the parties proved that the appellant after taking the possession from the respondent did not demolish the existing building construction within prescribed period of six months and also did not erect new building within two years as provided under subsection (3) of section 15 of Rent Ordinance, 1979. In the circumstances no exception could be taken to the said finding of the learned Rent Controller.
11. So far the contention of the learned counsel for appellant that the application moved by the respondent was premature has also no substance and merit as under sub‑clause (3) of section 15 of Rent Ordinance, 1979 the respondent/tenant's right accrued/matured when the appellant/landlady failed to demolish the premises within six months from the date of taking over possession of building from the respondent as well as when the appellant failed to commence the erection of new building within two years, therefore, it could not be said that the application filed was premature.
12. Next contention of learned counsel for appellant is that rights of the respondent/tenant would be governed under section 13 (5‑A) (5‑B) of West Pakistan Urban Rent Restriction Ordinance, 1959 has no substance and merit in view of section 27 of Rent Ordinance.
13. Subsection (2) of section 27 of the Rent Ordinance reads:‑‑
14. "All appeals, and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance."
15. There is no dispute that the Rent Case No.5445 of 1978 was neither fixed for arguments nor for judgment when the Sindh Rented Premises Ordinance came into force, therefore, cases before Controller pending on the date of enforcement of Sindh Rented Premises Ordinance would have to be disposed of in accordance with the provisions of Sindh Rented Premises C Ordinance. Accordingly, case filed by respondent/tenant was rightly decided under the Rent Ordinance, 1979. No other plea has been raised. The facts of case law cited by the learned counsel for appellant has no application to the facts of the instant case. Accordingly, appeal has no merits which is hereby dismissed.
16. A.A./M‑163/K ???????????????????????????????????????????????? Appeal dismissed.