P L D 1993 Karachi 304 (PLP)

The dispute in this appeal relates to a shop on the ground floor and a bearing ,residential tenement on_ its first floor constructed over a plot of laid 'it Survey No. E/1839, Faqir to Pir, Hyderabad. Sindh and owned by -respondents Nos. 4 to 12 herein. The premises in question were rented out by respondents Nos. 4 to 12 herein to respondents I to 3 on the agreed rent of s.75 per month. The respondents 4 to 12 had earlier filed an ejectment application against their said tenants seeking ejectment on the ground of construction of a new building on the said plot and their personal bona fide use . the first floor of the proposed building. An undertaking was given by the landlords that on reconstruction of the proposed building one shop on the ground floor will be let out to the tenants on the prevalent rent or on any rented by the Rent Controller. Matter was contested by the parties and was ken to the Supreme Court of Pakistan as well. The respondents 1 to 3 ultimately were unsuccessful in the matter and they actually delivered vacant session of the premises on 7th March, 1983 pursuant to the order of action passed against them. The building in question was not pulled down for the purpose of .construction. Instead it was let out to Abdul Aziz, the appellant abovenamed the rent of Rs.1,500 per month. The respondents 1 to 3 the original tenants ,therefore filed an application under section 15 (3) of the Sindh Rented ,mises Ordinance, 1979 for being restored the possession of the premises had vacated for the purpose of the reconstruction of the building by the landlord under the orders of the Rent Controller as stated above. In the matter of hearing of above mentioned application it was pointed t as a matter of family settlement with his co-owners of the premises in ,stion Dost Muhammad one of the respondents had made a gift of the ire premises to his wife Mst. Fahmida on 23-8-1983 followed by a laration made on 7-11-1983 before the IInd Extra Joint Civil Judge, Jerabad and Mst. Fahmida as the owner of that building had let out the misses to the appellant. Thus the application filed by the respondents 1 to 3 restoration of the possession was not competent as relationship of landlord tenant no more existed between the appellant Abdul Aziz and respondents ,12 the original-owners of the building. The Rent Controller after recording evidence of the parties came to conclusion that Mst. Fahmida the new owner of the pre-nises who was the ~ of Dost Muhammad, one of the original landlords and living with him cannot be absolved of the responsibility of restoring the premises to opponents 1 to 3 as the building was not pulled down for being reconstructed. He therefore allowed the application filed by respondents 1 to 3 and directed that the disputed premises be restored to the applicants within two months. This order was passed on 31-1-1986, which is impugned in this appeal. Mr. Ghulam Moinuddin Baloch, Advocate for the appellant raised the following grounds in support of this appeal:-- (1) That the rent application was not competent as there was no relationship of landlord and tenant between the appellant and the respondents 4 to 12. (2) That the appellant who was at present a tenant of premises in question was not party to the previous application. (3) That the appellant has bona ride entered into agreement of tenancy with the new landlord. (4) That the present, landlady was not impleaded as a party. Mr.. Hasan Mahmood, Advocate for respondents 1 to 3 argued that if by an order of Court a tenant is ordered to be ejected from a premises on the ground that the landlord needs the premises for reconstruction of a building, the tenancy is not terminated as such. On reconstruction of the building the original tenant is entitled to be let out premises in the new building in accordance with the order passed therein. In support of such contention he has relied .on a case reported in 1988 Supreme Court Monthly Review page 1575. Mr. Arshad Noor, Advocate appearing for respondents 4 to 12 has merely stated that the said respondents are no more landlords of the building in question and any order that may be passed in the proceedings will affect the rights of Mst. Fahmida, the new owner who is not a party to the proceedings and no order can be passed against her. In a case where a landlord has succeeded in ejecting his tenant from the premises owned by him for the purpose of reconstruction or erection of a new building at the site under section 15 (2) (iv) of the Sindh Rented Premises Ordinance, 1979 he is bound to demolish existing building within six months of taking over the possession of the premises and can complete the erection of new building within two years of taking over the possession. In the event of construction of a new building the original tenant on his application shall be put in possession of similar or smaller area by the Controller and on payment of such rent as may be determined by him in terms of provision made in subsections (3) and (4) of section 15 of the said Ordinance. In the event a landlord commits breach by not following such provision he will render himself liable for penal action under section 15-A of the said ordinance. In such cases a tenant is required to surrender the premises let out to him to the landlord temporarily for the purpose of reconstruction of the proposed building. On reconstruction the landlord is bound to restore, the tenant same or smaller area on payment of rent as may be determined by the Controller. By obtaining the possession of a premises for the purpose of reconstructing a building according to a duly approved plan on the site does not by itself either bring the tenancy to an end or extinguish the rights of a tenant. The tenancy rights on reconstruction of the building can however by modified to the extent of area in occupation and variation in the amount of rent by the order of the Controller. In either case it will be the continuation of the tenancy rights as existing at the time of ejectment. I am supported on this view of the matter by the principles stated in the case published in 1978 Supreme Court Monthly Review 1575. The present appeal arises out of the application filed by the tenants under section 15 (3) of the said Ordinance for being put in possession of premises as the building was never demolished for the purpose of reconstruction. Such proceedings are in fact in continuation of the original application and it would not be necessary to implead Mst. Fahmida as a necessary party. The tenancy rights of the appellants continued to exist despite surrender of the possession to the landlords for reconstruction and the property in question could only be transferred to her subject to such rights of tenancy. Objection of the respondents as to non-joinder of Mst. Fahmida is therefore of no consequence. From the conduct of the original landlords it becomes evident that entire exercise of ejecting the tenants on the ground of reconstruction was merely a mala fide attempt as after obtaining the possession a colourable transfer of the premises to the wife of one of the co-owners was made to defeat the rights of tenants. In view of above the appeal by a short order passed on 1-3-1989 was ordered to be dismissed with a direction that appellant will put the respondents 1, 2 and 3 in possession of the premises within a period of two months while above are the reasons for the said order. AA./A-1326/K Order accordingly.