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Civil Petition for Special Leave to Appeal No. K‑208 of 1978, decide on 14th February 1979.

(On appeal from the judgment and order dated 17‑10‑1978 passed by the Sind High Court in L. P. A. 208 of 1970).

----S. 13 (5‑B)‑Accommodation of previous tenant in rebuilt premises Tenant approaching landlord, before completion of new building, and requesting him to be put into possession of new shop constructed on old site or else of its corresponding area in any other shop but landlord avoiding him‑Tenant consequently filing application against landlord under S. 13(5‑B)‑Held: Not correct in circum stances to contend requirement of S. 13(5‑B) being not present to mind of Courts below when allowing tenant's application.

‑‑ S. 13(5‑B)‑Accommodation of previous tenant in rebuilt premises‑Respondent tenant in old shop for about 65 years Landlord getting prenises vacated for rebuilding expected to realise tenant naturally expecting to be put into possession of a new shop constructed on old site or else of corresponding areas in any other shop‑Landlord in such view of matter, held; should have either constructed a new shop of same area or else big enough, capable of being partitioned, so as to be used as feasible commercial enterprise.

Khalid M. lshaque, Senior Advocate Supreme Court and Nizam Ahmad, Advocate‑ on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing : 14th February 1979.

.‑‑This leave petition which is meant to impugne the judgment of the Sind High Court at Karachi arises in the following circumstances;

Late Muhammad Siddique, the predecessor‑in‑interest of respondent Nos. 1 to 6 was the tenant of respondent No. 7 in respect of measuring 11 x 30' situated on the ground floor of the old Ghadiali Buildin,, constructed on Plot No. 23‑SB‑1, Preedy Street, Opposite Empress Market, Karachi.

In the year 1964, respondent No. 7 filed an application against Muhammad Siddique in the Court of II Civil Judge Rent Controller, Karachi for his vacation from the said shop on the ground that he intended to demolish the old building with a view to construct a new building on the site. Muhammad Siddique contested the said application but the same was allowed by the 'Rent Controller vide his Order dated 1‑9‑1965. Being aggrieved of the said order, Muhammad Siddique filed an appeal against it in the Court of Additional District Judge, Karachi but the same was dismissed vide judgment dated 20‑10‑1965. It seems that Muhammad Siddique felt satisfied with the said judgment, consequently, vacated the said shop and handed over its possession to respondent No. 7 in order to enable him to proceed with the demolition of the old building and thereafter to construct a new building on the same site.

The record would show that when respondent No. 7 was about to complete the construction of the multi‑storeyed building on the site including 8 shops on the ground floor of it, Muhammad Siddique approached him and requested him to be put into possession of the new shop constructed on the old site or else of the corresponding area in any one of the said 8 shops but his efforts failed to bear any fruit. Faced with this situation, Muhammad Siddique filed against him, an application under section 13 (5‑B) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) in the Court of Rent Controller, Karachi praying therein for the same relief in respect of which his efforts with respondent No. 7 had failed to bear any fruit. The said application was contended by respondent No. 7, who, in his written statement, contended inter alia that long before the said application was filed, the new building had already been constructed and all the shops therein let out and fully occupied by his tenants. Upon this and other allegations of the parties herein, the learned Rent Controller framed in the proceedings six issues but the main issue on which we were addressed by the learned counsel for the petitioner is issue No. 2 which is to the following effect;

"Whether building on the shop previously occupied by the applicant was not completed and not occupied by another person when the present ' application was brought "

It may be mentioned, however, that during the pendency of the proceedings before the learned Rent Controller Muhammad Siddique died, and, consequently, respondents Nos. 1 to 6, being his legal heirs, were brought on the record of the case as applicants. Thereafter, the learned Rent Controller recorded the evidence of the parties and in the result allowed the application of the said respondents. Being dissatisfied with the said order, the petitioner went in appeal before the Additional District Judge (IV), Karachi but his appeal was dismissed vide judgment dated 4‑5‑1970. Finally he went to the High Court in second rent appeal but the same was also dismissed by a learned Single Judge vide his judgment dated 5‑11‑1970. However, having certified the case to be fit enough for consideration by a Letters Patent Bench of the High Court, the petitioner filed a Letters Patent Appeal which also failed and hence this petition has been filed by him against the impugned judgment of the High Court.

Now the finding of the Rent Controller on issue No. 2 which has been approved by the learned Addl. District Judge, a learned Judge of the High Court and the Letters Patent Bench is in favour of respondents Nos. 1 to 6. Faced with this situation the learned counsel for the petitioner has naturally not questioned the said finding before us. He, however, contended that in none of the Courts below including the High Court were the requirements of section 13 (5‑B) of the Ordinance kept in view and, consequently, the said concurrent findings recorded against his client, are illegal. There is no force in this contention. The requirements of the said section seem to be that;

(1) When in pursuance of an order passed by the Rent Controller, a landlord has obtained possession of an old building and constructed anew building on the same site, the tenant of the old premises, before the completion of the new building and its occupation by another person, may apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation, and

(2) the Controller shall make an order accordingly in respect of the area applied for or such smaller area as, considering the location and type of the new building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality.

The Courts below, including the High Court have applied their mind to the said requirements of the section, and upon the evidence on record, recorded the conclusion against the petitioner. The view taken by them is that before the completion of the new building by respondent No. 7, including the 8 shops on the ground floor of it, and their occupation by another person, late Muhammad Siddique approached him and requested him to be put into possession of the new shop constructed on the old site or else of the corresponding area of it in any other shop but he avoided him. Faced with this situation he had no option but to file an application against him under section 13 (5‑B) of the Ordinance. In these circumstances it is incorrect' to contend that the requirements of the said section were not present to the mind, of the Courts below, including the High Court. In fact, the Letters Patent Bench of the High Court, seems to have painstakingly considered every piece of evidence on record as well as the many legal questions raised before it on behalf of the petitioner before endorsing the view taken by learned Single Judge of the High Court.

The learned counsel for the petitioner next contended that once the learned Rent Controller allowed the application of respondents Nos. 1 to 6, it was his duty to go into the question of their area‑wise entitlement in the new shop. He argued that by disregarding the said requirement the order passed against his client was clearly unjust inasmuch as the shop in his possession measured 20' x 20', the area allotted from it to respon dents Nos. 1 to 6 is 11' x 30' and consequently, the area of 70 sq. ft. left with him would be unsuitable for use on commercial basis. Now by advancing this contention the learned counsel seems to have raised a moral than a legal question. The petitioner should have realized, that ignorance of law is no excuse, that under section 13 (5‑B) of the Ordinance, late Muhammad Siddique, who was his tenant in the old shop since 1914, would have naturally expected to be put into possession of a new shop constructed on the old site or else of the corresponding area in any other shop: In this view of the matter he should have either constructed a new shop of the same size or else big enough which could have been convenient partitioned so that both the portions of it could be used as a feasible, commercial enterprise. .

This petition, therefore, fails, and is dismissed.

Petition dismissed.

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