1989 PLP 1445 (CLC)

"It is, therefore, prayed that this Hon'ble Court may be pleased to pass an order directing the opponents to hand over the possession of Corner shop premises opening into Somerset/Invarity Road measuring 450 Sq.Feet or thereabout which area was held by him in the old building bearing Plot No.90 Sheet No.S.B.IV, Saddar Karachi and may be further pleased to fix the fair rent in accordance with law, of the new premises, and may pass any other order this Hon'ble Court may deem fit and proper in the circumstances of the case." Notice of the above application was issued to the respondents, and respondents Nos.2 and 3 filed their written statements in which it was stated that the application was not maintainable in law as the applicant/appellant has no cause of action against the answering opponents /respondents. It was further stated that at the time of filing of this application under section 15(4) of the Sind Rented Premises Ordinance the building has already been completed on or before 23rd November, 1985; and they have applied to the building Control Authority for a completion plan certificate. It was further stated that in January, 1986, they have let out the said building to one Muhammad Arif, as per tenancy agreement dated 15‑1‑1986. There remains only one shop in their possession which has been earmarked for the applicant. That they have offered the said shop to the applicant several times but he has refused to accept the same with the result that it is still lying vacant. They are ready and willing to hand over the said shop to the applicant, and they have never avoided to provide the reasonable accommodation to the applicant. That the market rate of rent of the shop which has been offered to the applicant will be Rs.1,000 per month or any other rate of rent which may be fixed by the Court. That the plot in question admeasures 273 Sq.Yds. and there is an entrance for the hotel, Office reception, and the provision for lift on the ground floor. In addition thereto there is a dining hall constructed for the occupants of the hotel. In view of the above circumstances the opponents were in need of extra accommodation for their hotel on the ground floor, however, they have constructed a shop on the ground floor towards Invarity Road for the applicant which is more suitable for his business in every respect, but the applicant in order to gain substantial monetary benefit from the opponents in lieu of shop is avoiding to take possession of the same. That there was exchange of notices between the parties and the building was constructed before the eyes of the applicant but he never raised any objection on the construction of the building or its nature, nor he approached this Court raising any grievance against the raising of present construction. The appellant filed his own affidavit in evidence, and has produced documents Annexures 'A' to 'Z' while the respondents Nos.2 and 3 examined Muhammad Arif Baloch, Suhrab Khi1ji Manager, Oamardin Labour Contractor, and Matiuddin. They have also produced documents as Exh.8/A and Exh.8/F. That the learned Rent Controller after hearing the parties came to the conclusion that the shop opening towards Invarity Road earmarked for the applicant was a reasonable accommodation for him. He has further observed that the parties have not led any detailed evidence for fixation of fair rent of this shop and the rent will be fixed as and when the applicant occupies the shop. The above application was disposed of with the above observations. The present appeal is directed against the said order. I have heard Mr. S.MA. Mahmood learned counsel appearing for the appellant, Mr. R.F. Virjee learned counsel appearing for the respondent No.l, Mr. Mansoorul Arfin learned counsel appearing for the respondent No.2, Mr. S.Ishtiaq Ali learned counsel appearing for the respondent No.3 and have gone through R & P of the case. It was contended by Mr. S.M.A. Mahmood learned counsel appearing for the appellant, that the respondents Nos.2 and 3 had dishonestly changed the old Map which was got sanctioned by respondent No.l without intimation to the appellant. That when the case was filed by the appellant, this building was still under construction, and Mr. Arif who is husband of two of the respondents was put in possession as tenant much after the filing of the case. He has further contended that words `reasonable' and `commensurate' mean equal in measurement. That the tenant had to be given equal area at the same site. In support of his contentions the learned counsel has relied upon 1981 C L C 592, 1983 SCMR 391; 1986 C L C 1499 and 1986 CLC

889. It was contended by Mr. Mansoorul Arfin learned counsel appearing for the respondent No.2 that the Appeal No.399/80 filed by the appellant before this Court was dismissed and therefore, the observation regarding undertaking given by Mr. Virjee was in the nature of agreement between the parties and therefore it could not be enforced under Sind Rented Premises Ordinance. In this connection the learned counsel has relied upon 1983 CLC 2820. He has further contended that although the plan was there before the Court, there was no specific agreement that particular shop with particular area and at particular site will be given to the tenant/appellant. He has further contended that the appellant was an old man of 65 years of age, and he has admitted in evidence that he was not working since the day possession was given to the landlord/respondent No.l, and, therefore, he has to start tailoring work afresh and thus the accommodation provided by the respondents was reasonable. He has further contended that the respondents Nos. 2 and 3 had applied for completion certificate on 23‑11‑1985 while application for repossession was filed on 11‑5‑1986, and since the application was not made before completion of the building the same was not maintainable under section 15(4) of Sind Rented Premises Ordinance. It was contended by Mr. S.Ishtiaq Ali learned counsel appearing for the respondent No.3, that if the nature of the building is changed the tenant cannot insist that he should be provided accommodation at the same site. He has further submitted that even if character of the building was not changed, then too tenant could be accommodated at any other place, if character of the place occupied by the tenant is changed. In support of his contentions the learned counsel has relied upon PLD 1978 SC page 78; PLD 1980 SC page 206; PLD 1983 SC page 342 and 1986 CLC page

872. Mr. Virjee, learned counsel appearing for the respondent No.l has adopted the contentions raised by M/s. Mansoorul Arfin and S. Ishtiaq Ali. The application under section 15(4) read with section 8 of Sind Rented Premises Ordinance for putting him in possession of a shop by respondents Nos. 2 and 3 was filed by the appellant on 11‑5‑1986, wherein it was stated that the applicant/appellant had served the respondents Nos.l, 2 and 3 with a notice that in view of the judgment of the High Court a reasonable accommodation had to be provided to the applicant commensurate with his business in the new building. In para.7 it was stated that new building is about to be completed and has not been occupied by another person though it is in a condition, that possession of the shop premises can be handed over to the applicant yet despite of his earnest requests the opponents Nos. 2 and 3 failed to hand over possession of the shop premises to the applicant i.e. the shop premises on the ground floor having two doors opening on Sommerset Street and Invarity Road. In the written statement filed by the opponents/respondents Nos.2 and 3 the facts regarding service of notice and reply were not denied. However, the contents of para. 7 of the application were denied as incorrect. It was stated that the building has already been completed on or before 23rd November, 1985, and as such the opponents have applied to the Building Control Authority for completion plan/certificate. The photo copy of the application was filed as Annexure 'A'. It was further submitted that in the month of January, 1986, the opponents have rented out the said newly‑constructed building to one Mohammad Arif as per tenancy agreement, dated 15th January, 1986. The photostat copy of tenancy agreement was produced as Annexure "B". It was further stated that the opponents are in possession of only one shop which has been earmarked for the applicant. They have offered the same shop to the applicant but he has refused to accept the same, which is still lying vacant. The opponents are still ready and willing to hand over the said shop to the applicant, and they are not avoiding in any manner to provide reasonable accommodation to the applicant. As far as the rent was concerned it was stated that the prevailing market rate of rent of the shop, which has been earmarked by opponents will be Rs.1,000 per month. However, the Court may fix any reasonable rate of rent. In the additional pleas it was stated that the area of the plot in dispute is 273 sq. yds. They have constructed a building for hotel. At the ground floor there is entrance for the hotel, office, reception, provision for lift in the space of the entrance of the hotel, and in the remaining portion of the ground floor a dining hall has been constructed for the hotel customers. The affidavit, filed by appellant Muhammad Siddique, in evidence shows that he was carrying on tailoring business in the shop since demolished, since March, 1947. He was 'A' Class tailor and Judges of superior Courts, Governors and High Officials were his clients. The said shop consisted of two big rooms out of which one big room was reserved for the tailors and other one was used as cutting room with a separate trial room. That he had served notices upon the respondents Nos. 2 and 3 which were replied to by them. That the new building, was about to be completed and it has not yet been occupied by another person and is under the process of finishing. That the shop earmarked for him by the opponents is very small shop measuring 120 sqr. ft. and the same is adjacent to the shop of welder who parks vehicles on the footpath in order to carry on repairing work and, therefore, the said shop was not suitable and was insufficient for his business. That the entire building is lying vacant and the tenancy agreement is vague document and is collusive inasmuch as the respondents Nos.2 and 3 are wives of the alleged attorney, the alleged rent agreement has been executed in order to defeat his right. In fact the alleged attorney is owner of the property. The power of attorney and rent agreement were collusive and were prepared to usurp his right. The proposed building has not yet been completed. That the rent demanded by the opponents was excessive. In cross‑examination, he has stated that he had got the map prepared and measurements of the premises taken from a firm, of which no notice was given to the landlord. He had made payment to the firm which had prepared the map but he could not produce the receipt. He does not work since the time he has handed over possession. He will restart his business of tailoring after getting possession. He is more than 65 years of age. The opponents started constructing the building about three years back. He has admitted that he was seeing/watching the construction since that time. When he made this application, the structure of the Building was completed. The place for lift was under construction when he gave this application. He did not know if the entire construction was for the purpose of hotel. He has admitted that he did not write about any specific place nor they replied for specific place in the reply to his notices. (Note: word 'not' in between '1 did' and 'write' is missing in evidence) but the reading of full sentence indicates that he had not written about any specific site in his notice. In 1947, the rate of rent was Rs.66 per month. The Pugri of the shop which has been offered to him will be about Rs.1,00,000 or Rs.1,25,000 but he could "not" say about the rate of rent. He has produced the sketch as Annexure 'A', and other documents including the judgments in various cases and notices exchanged by the parties. General attorney of opponents/respondents Nos.2 and 3, Mohammad Arif has filed. affidavit in evidence, in which he has stated that he is general attorney of opponents Nos. 2 and 3 and also their tenant of property bearing Survey No.90 SB IV, Raja Ghazanfar Ali Road, Saddar Karachi, now known as 'Hotel Sarwan'. He has further stated that the applicant had no cause of action and that the application was not maintainable in law. That when the present application was filed the building was already constructed and completed. That except one shop which has been earmarked by the opponents for the applicant, the entire premises which are known as 'Hotel Sarwan' has been let out to him by the opponents vide tenancy agreement dated 14‑1‑1986 and, therefore, the application was not maintainable in law. That the undertaking given in 11 Appeal No.339 of 1980 was to the effect that a reasonable accommodation will be provided to the applicant commensurate to his business, and no undertaking was given to provide a shop measuring 450 ft. at the same site where the old shop of the applicant was located. That the shop earmarked by the opponents for the applicant is not only reasonable but also suitable for the applicant. The applicant has refused to take possession of the said shop with ulterior motive and with the intention to extort huge sum of money. That the applicant was never in possession of a shop measuring 450 sqr. ft. and the sketch/plan as attached with the affidavit in evidence of the applicant is incorrect and has been prepared with mala fide intention. The shop which has been offered to the applicant has sufficient accommodation and is commensurate for the tailoring business which the applicant wants to restart. That the building at the site was completely reconstructed on 23rd November, 1985, and opponents Nos. 2 and 3 have applied to the Building Control Authority for a completion certificate on the very day. Copy of application has been produced as Exh.'A'. That except the shop earmarked for the applicant, the entire building known as 'Hotel Sarwan' situated on ‑the above plot has been rented out to him for a hotel business. The tenancy agreement has been produced as Exh.'B'. That the opponents are not in possession of other accommodation. The ground floor consists of main entrance for the hotel, space for lift, reception and dining hall, and the shop earmarked for the applicant. That the construction was carried on before the eyes of the applicant who was watching the progress of the construction work and he never approached this Court before completion of the construction nor raised any objection on the re‑construction of the building or its nature till today. That whenever the applicant visited the site, he was told by the attorney of the opponents that the said shop has been earmarked for him which is being provided to him now and he never raised any objection but gave his consent and agreed to take possession of the said shop. That the application was mala fide and was made to pressurize the opponents. In cross‑examination he has deposed that there are six floors of the building. He could not say if the covered area of all the floors will be more than 15,000 sqr. ft. There are about 66 rooms in the hotel. He has applied for licence of the hotel. He has received completion certificate of the building from the Building Control Authority after filing of this case. He has denied that finishing and fixturing work is still going on in the hotel. Lift has also been fixed and it is working. But he did not remember the exact date of start of lift. He has not yet assessed as to what will be the expenditure on furnishing the building's every room. No room has finally been furnished. He is attorney of the owners. He has denied a suggestion that he is paying Rs.1,000 per month as rent of furniture and fixtures of hotel from Januarv,'

86. He has not calculated the cost of the hotel as yet. He could not say about the amount spent on the construction of hotel. It is not mentioned in the power of attorney that he is husband of the executant. It is also not mentioned in the agreement of tenancy. He has denied a suggestion that power of attorney and rent agreement are fictitious. There was some alteration in the plan which was got approved by Mr. Gotla. He did not know if the site of the plot opening towards Somerset Street was in possession of the applicant. He did not know if the cutting room had two doors one opening on Invarity Road and other on Somerset Street. The photostat copy of application addressed to the Karachi Building Control Authority produced as Annexure 'A' is dated 23‑11‑1985. The agreement of tenancy produced as Annexure 'B' shows that stamp was purchased on 14th January, 1986 while agreement is dated 15th January, 1986. Sohrab Khilji, witness has filed affidavit, in which he has stated that he is employed as Manager of Hotel `Sarwan', situated on plot bearing Survey No.90 SB IV, Raja Ghazanfar Ali Road, Karachi owned by opponents Nos.2 and 3, and is possessed by one Mohammad Arif Baloch. He is working as Manager since 1986, since the building structure was completed. The ground floor consists of hotel entrance, Reception Manager's office lift and dining hall. A shop is also constructed facing Invarity Road for providing accommodation to applicant Mohammad Siddique. Mohammad Siddique applicant used to visit the building in his presence and he was informed by the attorney of opponents Nos.2 and 3, that the shop facing Invarity Road has been earmarked for him, to the specification of which, the applicant readily agreed and remained happy throughout the period of construction, if the possession of the same was delivered to him. Immediately after completion of the construction i.e. in January, 1986, when the shutter gate was being fixed in the shop earmarked for the applicant, the applicant visited the premises and he was shown the shop on which he was satisfied and was agreeable to have possession to start his business. That in April 1986, when the hotel building was being equipped with accessories the applicant approached Mohammad Arif attorney of opponents Nos.2 and 3 to pay Rs.2,00,000 instead of shop earmarked for him but Mr. Arif Baloch refused to pay him the same. In cross‑examination he has stated that he joined as Manager of Hotel Sarwan in January, 1986. At that time he had no knowledge about litigation regarding the shop in suit. But he came to know after notice was received from the Court. The owner had told him that the shop on Invarity Road was for the applicant. He has denied a suggestion that he was giving evidence so that he may be continued within service as Manager. He has denied a suggestion that hotel business was not owned by Arif Baloch. He had not seen power of attorney of Arif Baloch. Everything was complete including the construction of hotel, when he joined as Manager. He has denied a suggestion that there was no water, gas, and electricity in the hotel in January, 1986. He could not produce documents of water electricity and gas etc. Witness Oamaruddin examined by the respondents, has stated in his affidavit in evidence that he is labour contractor by profession, and had provided labour for the purpose of construction of Plot No.90 SB IV Raja Ghazanfar Road, Saddar, Karachi. Applicant Mohammad Siddique used to visit the said plot during construction and had come there many times in his presence. That on his inquiry he used to explain to Muhammad Siddique about the construction of hotel reception, Manager's office dining hall, place for lift, stair case and shop. That the applicant never raised any objection to the nature of construction nor he told him the reason of his inquiry. In cross‑examination he has denied a suggestion that he had not told the applicant about the construction of reception and Manager's room etc. and that he did not know about it. He had not seen the plan. The Supervisor had told him about the details mentioned in para. 3 of his affidavit. Witness Nazir Ali Siddiqui Record Clerk KDA has deposed that he has brought record of 90 SB IV, Raja Ghazanfar Ali Road, KDA has issued certificate of completion of building on plot on 2‑8‑1986. This certificate has been issued on application of Matin associates dated 23‑11‑1985. He has produced receipt as Exh.8‑A. He has also produced photo copy of completion certificate as Exh.8‑B. The original receipt and certificate were returned after they were seen by the Court. In cross‑examination he has deposed that he has not brought the proposed plan of the building. The proposed plan was submitted by Dara Gotla. He has admitted that letter of Deputy Controller Buildings dated 29‑3‑1986 annexes the declaration of Dara Gotla through architect. It does not bear any date. According to this plan there is a restaurant on the ground floor. There is no mention of dining hall. He has produced application dated 23‑11‑1986 moved for issue of completion certificate as E xh.8‑A photo copy of completion certificate Exh.8‑B, letter dated 12‑11‑1986 Exh.8‑D, photo copy of plan Exh.8‑E and letter of KDA dated 10‑5‑1986 Exh.8‑F. Witness Matiuddin Architect Exh.9, has deposed that Hotel Sarwan was constructed under his supervision. He filed completion plan, Exh.8‑A is the receipt of the same. In cross‑examination he has deposed that he knows Rules of Building Control Ordinance. The proposed plan is to be filed before the construction. He has filed proposed plan as it was already approved. According to the proposed plan there were shops and office at Invarity Road as well as on Somerset Streets. There is a shop on corner of these two streets. There is one office shown at the corner of Invarity Road. He has admitted that office shown on the eastern side of building facing Invarity Road is shown as shop. According to him, change cannot be brought m the plan and if any change is brought in the plan penalty is to be paid. He has admitted that there is difference between approved and proposed plan. Completion is on the new approved plan. He did not know that the application given by him for issuance of completion certificate was objected to because the construction was not complete. No show‑cause notice was issued to him. The parties might have received notice. He has denied that Ex.8‑D was issued alongwith Ex.8‑E. He has admitted that in Ex.8‑E action has been proposed against him. He has produced the proposed approved plan as Ex.

10. I have considered the contentions. The application for handing over possession of the new shop was filed by the applicant/appellant on 11‑5‑1986. The application for completion certificate was filed by the respondents before Karachi Building Control Authority on 23‑11‑1965. The respondents Nos. 2 and 3 had executed agreement of tenancy in favour of Muhammad Arif Baloch on 15th January, 1986. The completion certificate was issued on 2‑8‑1986 by Karachi Building Control Authority. The respondents have also produced letters dated 12 4‑1986 and 10‑5‑1986 issued by Assistant Controller Buildings raising certain objections. The agreement of tenancy produced by the respondents shows that the premises were rented out to Muhammad Arif Baloch on 15th January, 1986. The evidence of Sohrab Khilji Manager of Hotel Sarwan, Qamaruddin Labour Contractor, Matiduddin architect and Nazir Ali Siddiqui Record Clerk KDA clearly show that construction of hotel was complete by end of 1985 and M/s. Matin Associates had applied for completion certificate on 23‑11‑1985. It is further proved from the evidence led by respondents Nos. 2 and 3 that while the construction was being raised the applicant/appellant used to visit the premises and was watching the construction. That although there was exchange of correspondence between the parties but at no stage the applicant pointed out that he was entitled to get a shop at the particular site and with specific area. This position has been admitted even by the appellant himself in cross‑examination. The documentary evidence further shows that the appellant had filed application before the Rent Controller after the building was completed and rented out to Mohammad Arif Baloch. It is a matter of common experience, that entrance of a hotel, lift and reception have to be located on the front side so that whenever any customer comes or leaves the hotel the receptionist must know it. During the course of arguments I had inquired from Mr. S.M.A. Mehmood learned counsel appearing for the appellant whether the appellant will agree to accept the office room which was situated by the side of reception but he replied that he will be satisfied with the shop earmarked for the appellant provided, he was given additional area. As far as the question of area of the shop handed over by the appellant to Mr. Dara Gotla was concerned, no reliable evidence has been led to prove that the appellant was in fact in possession of 450 sq. ft. The sketch produced by the appellant appears to have been prepared by M/s. Shaukat Raza Associates but no one from the above firm has been produced to prove that the sketch was actually prepared by them and the measurements were correctly mentioned therein. It appears that previously the ground floor consisted of shops but after the eviction of tenants it was converted into a hotel and construction was raised with a view to suit the requirement of a hotel and therefore, there was a considerable change in the nature of building so constructed, and the nature of construction which existed before the appellant was ejected. The ejectment application, which was filed by Mr. Dara Gotla on the ground of reconstruction was filed under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 and, therefore, the tenant/appellant was entitled to be put in possession under subsection (5‑B) of section 13 after reconstruction; subsection (5‑B) reads as under:‑ "(5‑B) Where, in pursuance of an order under clause (vi) of subsection (2), a landlord has obtained possession of building (m this subsection referred to as the old building) and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, 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 the Controller shall make an order accordingly in respect of the area applied for or such similar area, as, considering the location and type of the new building and the need 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." Mr. S.M.A. Mehmood learned counsel appearing for the appellant has relied upon the following decisions: Akbar Ali v. Zoaib Ali and 5 others (1981 CLC page 592); wherein it was observed that:‑ "Subsection (5‑B) must be read with clause (vi) of subsection (2) of section 13 and it becomes clear that other things being equal the landlord is obliged to put the tenant in possession of the new premises as nearly as it may be possible on the same site which was originally occupied by the tenant. If the new premises happens to be less m area the tenant cannot complain nor can he make any grievance if the restoration to the original was not possible or practicable by reason of the nature or type of newly‑constructed building. The aforesaid subsection obliges the Rent Controller to take into consideration the needs of the tenant. It therefore, follows that in the absence of the compelling circumstances the tenant cannot be denied restoration to the original site. If the landlord is given unrestricted discretion to give one or other premises in the newly‑constructed building to the evicted tenant, the tenant's right to restoration may become illusory making the subsection redundant."

2. Zoaib and 5 others v. Akbar Ali (1983 SCMR 391); the respondents in the above first noted case had gone in appeal before the Hon'ble Supreme Court and the judgment of the High Court was affirmed and the appeal was dismissed. However, it was further observed that:‑ "The landlord is in no way required by law to reconstruct the new building so as to provide the evicted tenant exactly the same type of building or accommodation as occupied by him earlier or in any way to keep his needs into consideration. (However, as pointed out in Ghulam Haider v. Mohammad Hanif 1979 SCMR 396) the landlord is required to take into consideration the rights conferred by subsection (5‑B) of section 13 of the Ordinance, on tenant so that new construction is capable of accommodating the tenant. Subject to this restriction the landlord is free in matter of nature and type of construction for the purpose of new building."

3. Abdul Rahman v. SA. Matin and another (1986 CLC 889) wherein it was observed by this Court that:‑ "Subsection (5‑B) only confers a right on a tenant to a lease of the demised premises after their reconstruction and as the Controller is empowered to lease to the tenant in the new building a similar area than the premises originally demised to him, this express provision is inconsistent with the proposition that the landlord can reconstruct his property only in accordance with the needs of his tenant. Secondly, the option conferred on the tenant by this subsection continues until the completion of the new building and its occupation by another person. In view of the long delays, this can only be many years after the landlord's reconstruction plan has been approved by the local Municipality, therefore, the plea that the landlord's rebuilding plan must conform to his tenant's requirements would lead to absurdity. Thirdly, whilst a landlord cannot evict his tenant except on the grounds prescribed in the said Ordinance, a tenant is free to vacate the demised premises after giving the contractual or statutory notice. As a tenant can terminate his lease unilaterally, it would be extremely unjust and unreasonable if the landlord's right to rebuild and develop his property was subject to the tenant's veto, and injustice is not be lightly attributed to the legislature." 4.Abdul Rauf v. Nauman and 5 others 1986 CLC 1499; in this case the landlord had rented out the shop to different persons after reconstruction before time for filing the appeal by tenants had expired. However, since the tenant had failed to file any appeal, the landlord was ordered to provide alternate accommodation to the tenant from the place which was in his possession. As far as the first case of Akbar Ali was concerned, since the Court came to the conclusion that the landlord manoeuvred in such a way that he created a cause for denying to the tenant his right to reasonable reinstatement in the new building although a reasonable premises was available in which the tenant could have been justly and fairly inducted, therefore, the second appeal was allowed and the order of Rent Controller allowing application under section 13 (5‑B) was restored. In the second case Hon'ble Supreme Court had affirmed the decision of the High Court in the first case mentioned above with further observations mentioned at page 1458 above. In the third case it was observed that the landlord's building plan must conform to his tenant's requirement would lead to absurdity. It would be extremely unjust and unreasonable if the landlord's right to rebuild and develop his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the legislature. In the fourth case since the landlord had already rented out the shops after reconstruction to the different tenants before the time for filing appeal had expired, the landlord was ordered to provide alternative accommodation to tenant from space in his possession. From the above factual as well as legal position it is clear that although the landlord was bound in terms of subsection (5‑B) of section 13 to provide al reasonable accommodation to the tenant after reconstruction subject to this restriction the landlord is free in the matter of nature and type of construction for the purpose of new building. Adverting to the first contention raised by Mr. Mansoor‑ul‑Arfm learned counsel appearing for the respondent No.2, no doubt the appellant is claiming re possession on the‑ basis of undertaking given by Mr. Virjee appearing for the respondent No.l but the said undertaking was within the scope of the proceedings and was not beyond the scope of proceedings. Even under subsection (5‑B) of section 13 of Rent Restriction Ordinance, 1959, the appellant was entitled to repossession and, therefore, the contention of Mr. Mansoor‑ul‑Arfin that the undertaking given by Mr. Virjee was in the nature of agreement between the parties and, therefore, it could not be enforced under the Sind Rented Premises Ordinance was untenable. In this connection the case of Mohammad Ramzan v. Abdul Hadi etc. 1983 CLC 2820 relied upon by him is distinguishable and does not apply to the facts of the present case. Inasmuch as even m the above‑cited case it has been observed that:‑ "In spite of a compromise between the parties the Rent Controller being a Tribunal of limited jurisdiction has to proceed strictly within the framework of subsection (5‑B)." Adverting to the second contention of Mr. Mansoor‑ul‑Arfin, it is an admitted position that in spite of the fact that plan was before the Court, there was no specific agreement that particular shop with particular area and at particular site will be given to the tenant /appellant. It has also been proved from the oral as well as documentary evidence that the construction of the building was over by the end of year 1985, and the respondents Nos. 2 and 3 had applied to the Karachi Development Authority for completion certificate on 23‑11‑1985. From the Rent Agreement it is clear that the possession of the building so reconstructed was handed over to Mohammad Arif Baloch for running a hotel on 15‑1‑1986 except a shop earmarked for the appellant and the application filed by the appellant was filed much thereafter. In the case of Mohammad Ramzan v. Abdul Hadi and another 1983 CLC 2820; it was observed that:‑ "The tenant who is evicted on the ground of reconstruction of a building if desirous to have accommodation in newly‑constructed building rented out to him, has to file application before the completion of the new building and its occupation by any other person and since the application was filed long after the construction of new building and its occupation by different tenant the appeal filed by the tenant was dismissed." The above contention of Mr. Mansoor‑ul‑Arfin is not only supported by the above facts and circumstances but decisions relied upon by S. Ishtiaq Ali also fully support the above contention. In the case of Ghulam Nabi v. Mushtaq Ahmad PLD 1980 SC 206, it was observed by their Lordships of the Supreme Court that:‑ "Subsection (5‑B) only confers right on a tenant to a lease of the demised premises after their reconstruction, and as the Controller is empowered to lease to the tenant in the new building a smaller area than the premises originally demised to him, this express. provision is inconsistent with the proposition that a landlord can reconstruct his property only in accordance with the needs of his tenant. Secondly, the option conferred on the tenant by this subsection continues until the completion of the new building and its occupation by another person. In view of the laws delays, this can only be many years after the landlord's reconstruction plan has been approved by the local Municipality, therefore, the plea that the landlords rebuilding plan must conform to his tenant's requirements would lead to absurdity. Whilst a landlord cannot evict his tenant except on the grounds prescribed in the said Ordinance, a tenant is free to vacate the demised premises after giving the contractual or statutory notice. As a tenant can terminate his lease unilaterally it would be extremely unjust and unreasonable if the landlord's right to‑rebuild and develop his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the legislature." In the case of Abdul Bari v. Khadim Hussain PLD 1978 SC page 78; it was observed by their Lordships of the Supreme Court that:‑ "We regret we cannot subscribe to this line of reasoning, as we find that clause (vi) of subsection (2) of section 13 of the Ordinance does not by itself impose any restriction or limitation as to the nature and purpose of the new building which is to be reconstructed in place of the old building. If this clause is to be read as being subject to the provisions of subsection (5‑B) of the same section in the sense that the nature and character of the building cannot be changed by reconstruction, then the result would be to prevent future development of property even though the environment and the requirements of the community at large, may have changed. Such an interpretation would be avoided unless the words of the statute are so clear and unambiguous as to make it inevitable. This does not appear to be the case here. We consider, therefore, that the ground of reconstruction mentioned in clause (vi) of subsection (2) of section 13 does not limit the same reconstruction of a building of the same type and character and for the same purpose, namely, residential as the case may be. However, the provisions of subsection (5‑B) would come into play if the reconstructed building is of the same type and character and suitable for the same use as was the old building. In other words, the provisions contained in clause (vi) of subsection (2) of this section are subject to subsection (5 B) thereof only to this limited extent, and to the extent of preventing a conversion by reconstruction of one type of building into another." In the case of Abdul Hadi alias Abdul Hadi Hasan and two others v. Syed Ali Haider and others PLD 1983 SC page 342; it was observed that:‑ "We observe that clause (vi) of subsection (2) of section 13 of the Ordinance also does not impose any restrictions or limitations as to what type of a new building may by built on the site of the old building, after reconstruction. We also note that there is no law which prevents a non residential building from being converted, after reconstruction, into a residential one. Consequently, if the contention raised by the petitioners was accepted and subsection (5‑B) of section 13 was held to debar a landlord from making reconstruction, whereby.shops could not be demolished and a residential building constructed on the site, this would amount to imposing a reason which does not exist in law. The reading of both the provisions in harmony would yield the result that subsection (5‑B) of section 13 comes into play only where the old building consisting of shops even after reconstruction retains the character of shops and also in those cases where the old building is a residential building and new building on reconstruction is again built as a residential building. This subsection would not apply in cases where a non‑residential building is after reconstruction, converted into a residential building." In view of the above discussion and factual as well as legal position, I am of the considered view that since the building was reconstructed much before the application for re‑possession was filed by the appellant, and the same was rented out to a new tenant Mohammad Arif Baloch for running of hotel, and its nature was also changed, the learned Rent Controller was right in holding that the opponents/respondents Nos.2 and 3 had no other alternative but to provide shop to the appellant/applicant which was earmarked for him. The respondents Nos.2 and 3 are not in possession of any other accommodation from which they could provide further accommodation to the appellant as suggested by his Advocate Mr. S.M.A. Mahmood. This suggestion further shows that appellant is prepared to occupy the shop earmarked from him, but he wants an additional area from the hotel which could not be provided to him looking to the changed nature of construction. Therefore, the order passed by the learned Rent Controller does not suffer from any infirmity and, the same is upheld, and the appeal is accordingly dismissed with no order as to costs. The learned counsel appearing for the parties did not address this Court on the point of fair rent' to be fixed in respect of the shop earmarked for the appellant, and, therefore, I leave this question open, and direct the learned Rent Controller to fix fair rent of the shop earmarked for the appellant after taking into consideration the location of the shop, prevailing rent of the adjoining shops, and other relevant circumstances. H.B.T./M‑748/K Appeal dismissed.