1987 PLP 1801 (CLC)

The facts leading to the filing of the above appeal are that the respondent is the landlord and owner of a composite building constructed on Plot No.782, Central Commercial Area, P.E.C.H.S., Karachi and the appellant is the tenant in respect of shop No.2 at the monthly rental of Rs.300 p.m. The respondent filed eviction application No.97 of 1985 on the ground that he was working as telegraph master in the southern telecommunication region, Karachi and retired from service. He since the date of retirement was doing nothing, therefore, he wanted to start his own business for which he required the shop premises in occupation of the appellant. The appellant resisted the application. The appellant filed his own affidavit‑in‑evidence in support of the eviction application. In rebuttal the appellant filed his own affidavit‑in‑evidence. They were cross‑examined by the learned counsel for the respective parties. The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided the point No.l in the affirmative and allowed the eviction application, vide order dated 15‑10‑1989. The appellant abovenamed being aggrieved by the order dated 15‑10‑1985 of the IIIrd Senior Civil Judge/ASJ/Rent Controller, Karachi (East), has preferred this First Rent Appeal, on the grounds mentioned in the Memo. of Appeal. Mr. A . Wahab the learned counsel for the appellant has contended that the respondent's case comes within the ambit of subsection (2) of section 14 of the Sind Rented Premises Ordinance as such the application was not maintainable. On the other hand Mr. Syed Abbas Zia, the learned counsel for the respondent has submitted that the respondent's case does not come within the ambit of subsection (2) of section 14 of the Sind Rented Premises Ordinance, 1979. His submission is that the order of the learned Rent Controller is in accordance with the law. The respondent filed eviction application against his tenant M.A. Ghaffar who is occupying shop No.l. The eviction application was granted by the Rent Controller but the said tenant filed appeal against the eviction order which is still pending in this Court and stay has been granted by this Court in favour of the tenant in that appeal. Subsection (2) of section 14 of the Ordinance disqualifies or disentitles, a landlord to avoid the benefit of section 14(1) and in such cases where the landlord of the building is in occupation thereof. Since the respondent is not in occupation as yet of the shop No.l owing to stay granted by this Court in the first Appeal, he cannot be deprived of the benefit of section 14(1) of the Ordinance. The other contention of the learned counsel for the appellant is that there are three shops on the ground floor. The shop No.l is in occupation of M.A. Ghaffar as discussed above. The shop No.2 is the subject of the appeal. According to him the third shop is in occupation of the respondent and the respondent has kept it locked for more than two years. It is pertinent to note that the appellant stated in his written statement that the respondent kept vacant the third shop. The respondent filed affidavit‑in‑evidence and stated therein that there are only two shops, there is no third shop in the said building. The respondent denied the suggestion about the third shop in cross‑examination. It is pertinent to note the relevant portion from his cross‑examination which reads as under: "P.45. It is incorrect to say that there is also third shop in the same building. It is incorrect to say that the third shop was rented out by me to somebody since the time I was retired. I am not doing anything. It is incorrect to say that in the gate of the case shop there are only two shops, actually there are other shops also." The appellant in para. 3 of the affidavit‑in‑evidence stated that "there is a third shop also on the ground floor in the same building which the applicant has left vacant and locked." The appellant in his cross‑examination stated that "it is correct that ground floor is commercial and upper floor is residential. There are three shops in the case building one is in my occupation, the other is with Abdul Ghaffar Artist, while the third shop is lying vacant. It is incorrect to suggest that there are only two shops in the case building." The learned Rent Controller appointed Commissioner who inspected the site on 12‑5‑1985 and submitted his report. I have perused the report. According to it, there are two shops on the ground floor on the southern side of the shop there is a stair case, marked in the sketch, a space in between shop and stair case, marked B and small room 88" x 74" marked C having two doors, front (on the East) and back (on the West). Alongwith the side broken chairs were seen. The room (88" x 74") is admittedly electrical shop." I have perused the sketch annexed to the report. The learned Rent Controller on the basis of the evidence and the commission report and sketch observed that there is a small room besides two shops and the appellant did not file any objection to the Commissioner's report. I am of the humble view that the respondent is not in occupation of any shop and the room cannot be termed as the shop. Subsection (2) of section 14 of the Ordinance disentitles a landlord to avail the benefit of section 14(1) only in such case where he is in occupation of a shop. Since the respondent is not in occupation of any shop, he cannot be deprived of the benefit of section 14(1) of the Ordinance. The contention of the landlord counsel cannot be accepted. In view of the aforesaid, I do not find any merit in this appeal and hence the same is dismissed with no order as to costs. However, I grant four month's time from today to the appellant to handover the vacant possession to the respondent on the condition that he will continue to deposit rent in accordance with the tentative rent order of the Rent Controller. M.Y.H./N‑32/K Appeal dismissed.