2003 PLP 414 (CLC)

Miss Hafiza Usman for Respondents. Date of hearing: 28th January, 2001. The appellant was tenant of Mst. Aziza Begum in one of the shops in premises No.S-1/1; Saudabad, Karachi. Said landlady filed Rent Case No.134 of 1991 for eviction of the appellant alleging that she wanted to use the shop, after converting it into a room for residential purpose,, herself as well as for residence of children of her son Ashraf.

2. The landlady and one of her legal heirs died during pendency of the rent case, and the rent application was amended accordingly. In the last application, it was alleged that the shop in dispute, alongwith two other adjacent shops, will be converted into residential rooms for family of Ashraf.

3. The learned VIIth Senior Civil Judge and Rent Controller. Karachi East, accepted the plea of personal requirement on the basis of evidence placed before him, and allowed the rent case by his order dated 4-3-1999. He directed the appellant to hand over vacant possession of the shop to the applicant within 60 days: This order has been called in question by way of present appeal.

4. The last amended rent application was filed by respondent Muhammad Afzal as attorney of all the legal heirs of Mst. Aziza Begum Her brother Noor Muhammad, respondent No,3, filed an application in the appeal being C.M.A. No.692 of 2000, with a prayer to treat the power of attorney in favour of Muhammad Afzal as cancelled. The Advocate for the appellant also filed an application being C.M.A. No.1797 of 2000, with a prayer to set aside the impugned order dated 4-3-1999 on the plea that the appellant has surrendered possession of the shop in dispute to respondent Noor Muhammad and has obtained fresh tenancy under agreement dated 1-5-2000 and that the impugned order has become infructuous. He also filed affidavit of respondent Noor Muhammad to confirm this fact.

5. Mr. B.M. Bangash, learned counsel for the appellant submitted that the shop in dispute was handed over to one of the co-owners who relet it to the appellant under a new agreement.

6. Miss Hafiza Usman, learned Advocate for. the respondents, submitted that possession of the shop should be handed over to the respondent in whose favour Letter of Administration has been issued by the Court. She submitted that agreement with respondent Noor Muhammad is collusive, illegal and invalid.

7. Now the case of the appellant is that he has surrendered possession of the shop to one of the respondents, and thus the impugned order has become infructuous. Logically, in case the appellant has surrendered possession of the shop to one of the respondents in compliance with the order of the Rent Controller, it is not the impugned order, but this appeal itself that becomes infructuous. If the appellant has surrendered possession in violation of the impugned order, he is not entitled to take its benefit in the appeal. Since the learned Advocate for the appellant sought decision of the appeal on this ground alone, the appeal is dismissed for the reason given above. Pending Civil Miscellaneous Applications also stand disposed of. H.B.T./Z-37/K Appeal dismissed,