P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑The dispute fn this writ petition is in respect of a shop situated on the ground floor consisting of three rooms in the building known as "Sherbano Terrace", Saddar, Elphinstone Street, Karachi, which is a trust property. This shop was formerly occupied by Udhavdas and Naraindas as tenants of the Trust. These gentlemen were carrying on business In these premises under the name and style of "Dignity Store". Under an agreement dated the 1st of January 1948 these Hindu gentlemen, who became evacuees, transferred their right and interest in the above‑mentioned business concern along with their right of tenancy in the premises in question to Messrs H. M. Khairdin‑Anardin through their partner Malik Salimullah for a sum of Rs. 1,55,

000. According to the agreement the petitioners at the time of the agreement had paid Rs. 1,50,

000. In Case No. 107 of 1949, Mr. F. M. Hibatullah, the then Assistant Custodian, by an order dated the 1st of April 1950, treated the business concern as evacuee property and permitted the petitioners to run it as manager on behalf of the Custodian on furnishing security. It, however, appears that the Hindu evacuees transferred the business concern to the petitioners without the sanction of the landlord, and the Trustees of the building filed a suit for their ejectment. Prolonged litigation continued between the parties and ultimately on the 30th of November 1955, the petitioners were evicted from the shop in dispute and the Trustees were put in possession. Thereupon Malik Salimullah, the partner of the petitioners' firm, in his capacity as the manager of the Custodian, moved the Custodian on the 17th of December 1955 under sections 9 and 12 of Ordinance XV of 1949 and challenged their eviction from the property in dispute on the ground that the Civil Court had no jurisdiction to pass any order In respect of evacuee property. On the 19th of December 1955, the Custodian ordered that the shop in dispute be sealed until final decision. On the 16th of May 1956 the Custodian accepted the application of the petitioners and directed that the possession of the shop in dispute be handed over to Malik Salimullah in his capacity as manager of the Custodian. The Trustees challenged this order in Writ Petition No. 154 of 1956 and a Division Bench of this Court, composed of Bachal and Munshi, JJ., by an order dated the 15th of January 1958 dismissed the petition on the ground that the tenancy right was evacuee property and the Custodian's order directing the Trustees to hand over the possession of the shops to the manager was valid and could not be disturbed. In view of the order of the High Court In the above writ petition the petitioners moved the Deputy Rehabilitation Commissioner on the 12th of May 1958 for the restoration of the possession of the shop in dispute. About the same time the Trustees of the building also on the 27th of May 1958 moved an application before the Custodian Authorities under section 22 of Act XII of 1957 for a declaration that the evacuee tenancy rights in respect of the shop in dispute no longer exist as they had already terminated it by notice dated the 15th of January 1958 to the Custodian. This application hanged on till April 1959. On the 25th of April 1959 Mr. S. Asim Hussain, the then Deputy Custodian (Judicial) Karachi held that the tenancy rights had been rightly terminated and the Trustees were not bound to hand over possession of the shop in dispute to the petitioners. The petitioners challenged this order in Appeal No. F. 1 (358) of 1959 before Mr. Abdul Majid Khan, Additional Custodian, Evacuee Property, Karachi, but he also upheld the order of the Deputy Custodian and made the following observations "This tenancy right was terminable on one month's notice. That notice has been served on the Custodian and has not been contested. The tenancy right has, therefore, terminated by operation of law. The order passed by the learned Deputy Custodian is therefore upheld and is hereby approved. The appeal is consequently dismissed." The petitioners in this writ petition filed on the 4th of August 1959, have challenged the validity of the order of the Additional Custodian (Judicial) Karachi dated the 1st of August 1959 on the ground that the view of the officer concerned that the tenancy rights of the evacuees had been terminated by the aforesaid notice cannot be sustained and the application under section 22 of Act XII of 1957 being barred by limitation was not maintainable and should have been dismissed. On these grounds the petitioners have prayed for a writ of certioriari against the impugned order. During the course of the hearing of the writ petition it was brought to the notice of this Court that the petitioners not only attacked the order of the Additional Custodian referred to above in this writ petition but they also challenged its validity in Revision No. F. 2 (177)/59 before the learned Custodian. The learned Custodian under an order dated the 30th of October 1959 had surrendered the tenancy rights of Messrs Udbavdas and Naraindas evacuees in respect of the shop in dispute. The learned Custodian's order in this respect is reproduced below: "By an order passed today I have, in exercise of the powers conferred by section 9 of the Pakistan (Administration of Evacuee Property) Act, 1957, surrendered the tenancy rights of Messrs Udhavdass and Naraindass, evacuees, in respect of this property. This revision petition against the order dated the Ist August 1957, passed by the Additional Custodian of Evacuee Property, Karachi, has, therefore, become infructuous and is, hereby dismissed." The learned counsel for the respondents, in the face of the above mentioned order, has contended that the tenancy right of the shop in dispute is no longer an evacuee property and the petitioners are not entitled to get its possession as they claim this right as managers through the Custodian. Mr. Ehsanul Haq, the learned counsel for the petitioners, has strongly urged before us that the learned Custodian's order is without jurisdiction and he was not competent to surrender the tenancy right. This con tention is without force and has no substance. Under the provisions of the Administration of Evacuee Property Act all evacuee property vests in the Custodian and it is for him to decide whether it is in the interest of the evacuee to keep alive his tenancy rights in any particular property. The learned counsel for the petitioners has not been able to refer us to any provision under the Administration of Evacuee Property Acting support of his contention that the Custodian had no jurisdiction to surrender the evacuee tenancy rights. In the absence of any such provision the order passed by the learned Custodian dated the 30th of October 1959 is perfectly valid and operative. It may also be pointed out that the petitioners' application for confirmation of the sale transaction of January 1948 had already been dismissed by the Custodian. The learned Custodian, under the order referred to above, has asked the petitioners to render accounts of the property of Messrs Dignity Stores. In these circumstances the petition has become infructuous and the petitioners are not entitled to any relief in respect of the shop in dispute in this writ petition. Accordingly we dismiss the petition with costs. K.B.A. Petition dismissed,