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First Rent Appeal No. 889 of 1982, decided on 12th October, 1983.

-- S. I5 Ejectment of tenant sought on ground of re-construction of property--Factum of building plan having been sanctioned by relevant authority not doubted Building at least 40 years old Re-construc tion, held, does not appear to be mala 1980SCMR483fol.

-- S. 15 - Ejectment application for re-construction of building not filed against all tenants Re-construction not possible unless all tenants vacated Landlord's counsel stating that tenants against whom eject ment not filed, had agreed to vacate premises Ejectment of tenants deferred till landlords obtained possession from such other tenants.

1977 C L C 164 rel.

---- S. 13(5)(b) Sind Rented Premises Ordinance (XVII of 1979), S. 15 Application filed before coming into force of Sind Rented Premises Ordinance, 1979 -Rights of parties, held, would be regulated in accord ance with old law-Tenants, entitled to seek re-instatement or re accupation of re-constructed building to extent of area of their entitle ment.

1977 C L C 164 fol.

Mazharul Haq for Appellant.

Khuda Bux Umrani for Respondent.

Date of hearing: 12th October, 1983.

These are five connected appeals against the orders of ejectment passed in ejectment Applications Nos. 859, 897, 898, b99 and 1017 of 1982 granted by the 8th Senior Civil Judge and Controller, Karachi in the applications filed by Met. Khatija Bai against the appellants. The ejectment against all the appellants was allowed on the basis of requirement of reconstruction of the premises by the respondent and the same was supported by the approved building plan duly sanctioned by the Building Control Authority, Karachi which was filed in all these cases along with the letter of sanction. There is no doubt about the factum of the building plan having been sanctioned by the relevant authority and the same was merely challenged by the appellants as collusive but the appellants did not tender any evidence in support of that contention and therefore, the plan has been properly proved in all the cases and there is no rebuttal in respect of the desire of the landlady to make the required construction. The attorney of the landlady namely Haji Haroon had been examined and he had proved that the landlady wanted to construct new building. It is an admitted position that the building is at least 40 years old and some of the tenants had been in occupation of the same since 1945 1 and even earlier, therefore, the re-construction does not appear to be mala fide. The attorney of the landlady had stated that he had Rs. 50,000 in cash and some ornaments which could be utilised for the purpose of construction. It has been held in 1980 S C M R 483 that production of sanctioned plan for reconstruction of the building was the only requirement of law for the purpose of eviction of tenants. The important submission which has been made by all the appellants in this regard was that there was one tenant namely

Suleman against whom the respondents had not filed any ejectment proceed ings and since Suleman was occupying the premises on the first floor, there-fore, it was not possible to reconstruct the building without having those premises vacated. The appellants' counsel have relied upon 1977 C L C 164 where it was observed that if ejectment proceedings have not been filed against one of the tenants, therefore, it would not be possible to reconstruct the build ing. However, in F. R. A. 889 of 1982 the evidence of the attorney of the respondent was that the said tenant Suleman had agreed to vacate the premises and in view of that statement from the landlady in one of the connected applications it cannot be said that the requirement for reconstruc tion was not bona fide. However, in order to be fair to all the five appellants before me and with the consent of the counsel for the respondent I would direct that the respondent will be entitled to have the premises of all the five appellants vacated in accordance with the orders of eviction passed by the Rent Controller but that eviction of those appellants will be deffered till the respondent has obtained the possession of the premises in occupation of Suleman. But in any case all the five appellants will have four months time from today for vacating the premises subject to their paying the rent to the landlady directly. In case any of the appellants does not pay the rent then the execution will be issued against the defaulter tenant without any notice to him. The learned counsel for the appellants have agreed that an acknow ledgement from Suleman that he has handed over the possession of the premises in his occupation to the respondent along with a declaration by the respondent that she has obtained the possession of the premises from the said Suleman will be regarded as sufficient intimation about the factum of delivery of the possession of the premises of Suleman to the respondent if it is duly attested by Mr. Khuda Bux Umrani.

Mr. Khuda Bax Umrani counsel for the respondent has conceded that in view of practice of collection of rent in lumpsum from the tenants he is not pressing for eviction of the tenants in F. R. As. 897, 898.and-899 of 1982, on the ground of default and therefore, to this extent the order of the Rent Controller would stand modified.

The appellants counsel had argued that the Rent Controller was in error in not allowing the appellants to have the same accommodation which they were having after reconstructing the building. They have relied upon P L D 1982 Kar. 582 whereas D. B. of this Court had held that in a case of an application having been filed before coining into force of the Sind Rented Premises Ordinance 1979, the rights of the parties would be regulated in accordance with the old law. 'Mr. Umrani the learned counsel for the respondent concedes that the same is the correct position: I, therefore, set aside that portion of the order of the Rent Controller where he had dis entitled the appellants from seeking re-instatement or re-occupation of the to constructed building to the extent of the area to which they are entitled or near about on even some smaller area. Mr. Umrani has pointed out that sec tion 13(5)(b) of the West Pakistan Urban Rent Restriction Ordinance, 1959 gives the evicted the right of moving Rent Controller for getting an order in their favour for re-occupation of a portion of the building under re-construc tion and the appellants can, therefore, move their applications when the construction of the building has been started. That seems to be the correct position in law and I would, therefore, merely observe that the appellants would be entitled to seek relief from the Rent Controller under sec tion 13(5)(4) of the West Pakistan Urban Rent Restriction Ordinance 1959, after the construction of the building has been started and before it has been completed.

With the above modification in the order of the Controller the appeals are disposed of.

M. B. A. Appeals disposed of.

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