Find a Lawyer

Civil Revision Application No. 354 of 1986, decided on 23rd April, 1987.

---Shop in dispute belonging to Karachi Municipal Corporation, was transferred to petitioner by original licensee and transfer regularised by said Corporation--Corporation charged double rent from petitioner on ground of unauthorised construction of upper portion of shop allegedly made by petitioner--Upper portion was in fact already in existence when shop was in occupation of original licensee and no objection was taken by Municipal Corporation thereto nor they demanded any extra rent for same from him and transfer of shop in favour of petitioner was regularised alongwith upper portion--Held, petitioner could not, be burdened with greater liability than original licensee or with responsibility of having constructed upper portion nor could he be charged any extra rent for upper portion--Karachi Municipal Corporation could increase licence fee if law permitted them to do so but they would not have any right of cancelling allotment on account of superstructure upon shop or on account of non-payment of any extra rent nor they would demolish said superstructure.

S.H. Rizvi for Appellant.

S.M. Muslim Naqvi for Respondent.

Date of hearing: 23rd April, 1987.

This Revision is directed against the orders of dismissal of suit No. 359 of 1976 filed by the applicant on 28-2-1983 and the consequent dismissal of the appeal of the applicant on 28-9-1986.

The relevant facts are that shop No. 28 situated at Phool Chowk, Juna Market, Karachi was allotted by K.M.C. to one Abbas Karimji who transferred it to one Muhammad Taqi in 1962 and the K.M.C. regularised the same. In 1971 Muhammad Taqi transferred the said shop to applicant Fazlur Rehman. The rent of the shop upto that time was Rs.27 per month. The K . M . C . issued a notice to Fazlur Rehman who is now represented through his L.Rs. to pay a sum of RsA,050 on account of increase in rent to Rs.40/50 per month w.e.f. 1-7-1975 as he has encroached upon K.MC. land. It was also alleged that he had made unauthorised construction. The applicant objected to the same with no result. Eventually he filed suit for declaration and injunction restraining the K.M.C. from demolishing the upper portion of the shop. Notice was issued to K.M.C. and they filed their written statement. In the written statement K.M.C. took the plea that there was no construction on the shop as alleged by the plaintiff and that a room had been added by the plaintiff/applicant. It was also alleged that the suit was barred.

The suit was dismissed by the Civil Court after examining the parties and considering their documents. There were nine issues framed by the Civil Court out of which Issues Nos. 3, 5 and 6 are important which were:

(3) Whether the disputed shop at the time of regularization of it by the defendant in 1971 consisted of upper portion and ground floor. If so, its effect

(5) Whether the notice issued by the defendant and served on the plaintiff on 17-2-1976 demanding rent Rs.1,053 upto February 1976 was legal and just and whether the defendant is legally competent to enhance the rent to double the rate of rent payable by the plaintiff

(6) Whether the plaintiff has encroached on the disputed shop and/or raised unauthorised construction thereon as alleged in said notice. If not, its effect

I must note at this stage that Mr. Rizvi counsel for the applicant has made a categorical statement that the increase in rent as demanded by the applicant to Rs.40/50 is not objected to by the applicant and he further stated that whatever increase has reasonably been made thereafter by the K . M . C . for the shop in question, he will make payment for the same. Issues 3, 5 and 6 were decided against the applicant an the ground that the regularisation order made in his favour did not show the regularization of the upper portion. The Civil Judge had observed that from plaintiff's own case it was proved that upper portion was constructed without any permission from K . M . C . He, therefore, reached the conclusion that it was a clear case of trespass and encroachment. Further finding was that the notice demanding Rs.1,053 as rent was legal because the plaintiff had encroached upon the disputed shop and, therefore, Rs.1,053 as rent was justified. It was, however, observed that the jurisdiction of Civil Court was not barred.

The Additional District Judge who decided the appeal held that the suit was maintainable but on Issues 3, 5 and 6 he held that the appellant has hot proved that the construction raised by him on the upper portion of the said shop was regularised with the permission of the K.M.C. but on the other hand the evidence shows that the construction was unauthorised. It was further held that the appellant had paid rent upto August, 1976 at the rate of Rs.27 per month and, thereafter it was refused by the K.M.C. as they had increased the rent and the appellant did not pay the increased rent. For the purpose of this Revision Application it is not necessary to go into the whole evidence because what I find is that the most important documents viz. Exh.42 and Exh. 43 have been ignored by the two Courts below. It is an admitted position that the transfer of shop in favour of the applicant was regularised by the K.M.C. in 1971 and in this respect it is enough to refer to the letter of K.M.C., dated 11-11-1971 which talks of regularisation of shop No. 22 at Phool Chowk Juma Market. It was addressed to Fazlur Rehman with reference to his application, dated 29-5-1971. It was stated in this letter that the request for regularisation of abovesaid shop is hereby granted on usual terms and conditions and on payment of following amount:-

Regularization fee (penalty).

..

..

_____________________

Total: Rs. 486.00

The applicant paid the said amount. This is Exh. 9. This was supported by Exh. 10 which is a receipt of Rs. 324. Thereafter there so many receipts of rent/licence-fee paid by the applicant and it is an admitted position that licence fee upto August, 1976 at the rate of Rs. 27 p.m. was paid by the applicant. The real dispute is whether the upper portion or the so-called store room existed on the said shop or it was constructed by the applicant. It is correct that the letter of K. M. C. regularising the transfer in favour of the applicant does not talk of the upper portion as noted by the two learned Judges below but they have failed to consider the effect of Exh. 42 and Exh.43 in this regard.

It is an admitted position that the applicant Fazlur Rehman had taken the shop from Muhammad Taqi and, therefore, whatever were the rights of Muhammad Taqi in respect of the shop of its upper portion, if any, existing at the time of transfer in 1971 were deemed to be transferred to Fazlur Rehman by the K . M. C . Let us now examined Exh. 42 and Exh. 43. Exh. 43 is dated 3-2-1968 and it is signed by the Health Officer of K.M.C. and addressed to Muhammad Taqi, the predecessor of present applicant. The subject of this letter is "Permission of Necessary Repairs in the K.M.C. Shop No. 22 with upper portion (Store Room) on Phool Chowk, Juna Market". This letter granted minor repairs. What is important is that the upper portion of the shop is shows by the K. M. C . itself to be existing on 3-2-1968, therefore they cannot take position that in 1968 there was unauthorised construction made by the applicant. At least in 1971 this portion was in existence as it existed in 1968 and, therefore, the applicant had received the shop with upper portion from Muhammad Taqi and till 1971 the K .14. C . had never taken any objection to the existence or construction of upper portion and they had never demanded any excess rent for the same from Muhammad Taqi. Since the applicant is a transferee from Muhammad Taqi, therefore, he cannot be burdened with any greater liability than that of Muhammad Taqi.

It is relevant to note that both Muhammad Taqi, and Fazlur Rehman in their depositions asserted that the upper portion on the said shop existed from 1950 there was hardly any rebuttal in this respect from the side of K . M . C .

The second important admission from the K.M.C., in respect of existence of upper portion on the said shop is Exh. 42 which is again a letter from Health Officer, dated 30-12-1969 addressed to Muhammad Taqi demanding a sum of Rs. 152 on account of licence fee. for K.M.C. Shop No.22 with upper portion at Phool Chowk Market. The period for the Licence Fee demanded was from July to December, 1969. This is six months period and Rs. 162 having been demanded by K.M.C. for six months' rent indicate that Rs. 27 were demanded for this shop with upper portion as rent from Muhammad Taqi. This was the position in December 1969 and the K . M . C . had not raised any objection the upper portion till then nor they had demanded any extra rent for the same from Muhammad Taqi and in 1971 they had allowed and regularized the transfer of the shop with upper portion and mere omission of the mention of the upper portion in Exh.9 would not allow the K.M.C. to go back upon the position that they had allowed the existence of the upper portion during the days of Muhammad Taqi and never demanded anything from him. The obvious result was that Fazlur Rehman could not be burdened with the responsibility of having constructed the said upper portion and the K . M . C . was estopped from demanding anything extra for the upper portion from the applicant. But I must make it clear that I am not holding that the K.M.C. was not entitled to increase licence fee if law permits them to do so.

The result is that Revision Application is allowed. The judgments and decrees of the lower Courts below are set aside and the suit of the plaintiff is decreed to the extent that the K.M.C. had regularised the transfer of shop No. 22 Phool Chowk, Juna Market with the upper portion of the same in favour of the applicant in 1971 and, therefore, it did not have any right of cancelling the allotment of Fazlur Rehman of his L.Rs. on account of the superstructure upon the said shop or on account of non-payment or anything extra on that superstructure. The K.M.C. is, therefore, restrained from cancelling the allotment of the applicant on that account and is further restrained from trying to demolish the superstructure.

The applicant's counsel has undertaken that his clients will pay the licence-fee in respect of the said shop and its upper portion at the rate of Rs. 40/50 for the period from 1-7-1975 after adjustment of the payment which he has made to the K.M.C. by Pay Orders and it has been further undertaken on behalf of the applicant by his counsel that they will not challenge the statement which the K.M.C. makes in respect of the total payments made by the applicant in this respect. The applicant's counsel has further undertaken that whatever further lawful increase in rent is made by the K . M. C . or has been made in line with the other tenants in this area would be met and honoured willingly.

Above are the reasons for the short order passed by me on 23-4-1987.

M.Y.H./F-20/ K

Petition allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.