1987 PLP 3267 (MLD)

This First Rent Appeal is directed against the order dated 24-2-1986 passed by the IV Senior Civil Judge/Rent Controller (West) Karachi whereby 'he allowed the eviction application filed by the respondent and directed the appellant to hand over the vacant and peaceful possession of the shop in question to the respondent within thirty days from the date of the order. The facts leading to the 'filing of the above appeal are that the respondent is the owner/landlord of premises bearing No.A-10/1, III Nazimabad, Karachi, and the appellant is the tenant in respect of a portion of the said premises. The respondent filed eviction application No.2703/83 (New No.345/85) under Section. 14 of the Sind Rent Premises Ordinance, 1979 on, the ground that he retired from the Government Service with effect from 30-12-1982. The respondent averred in his eviction application that he served notice dated 27-2-1983 as contemplated by section 14 of the Ordinance calling upon the appellant to vacate the premises. The appellant resisted the eviction application. The respondent filed his own affidavit-in-evidence in support of the eviction application. The appellant filed his own affidavit-in-evidence in rebuttal. They were cross-examined by the learned counsel for the respective parties. The Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided issue No.1 in the negative. Issue No.2 in the affirmative and allowed the eviction application vide order dated 24-2-1986. ' The appellant being aggrieved, against the order dated 24-2-1986 of the IVth Senior Civil Judge/Rent Controller, has preferred this First Rent Appeal on the grounds mentioned in the Memo of Appeal. . Mr. Talmiz S. Burney the 'learned counsel for the appellant has contended that the respondent is not entitled to avail the benefits of subsection (1) of the section 14 as he is in possession of building within the meaning of Section 14 of the Ordinance. On the other hand Mr. S. Zahir Hussain Chishti, the learned counsel for the respondent has submitted that the respondent is not in possession of a shop. I have taken into consideration the arguments advanced by the learned counsel for the parties and have gone through the order. I have also perused the R & P of the case with the assistance' of the learned counsel for the parties. It is an admitted position that the respondent is the owner/ landlord of building staying on plot No.10/1 III Nazimabad Karachi. The appellant stated in his written statement that "the applicant had got vacated two shops which are now in his possession. Besides these shops, the applicant has only recently got vacated another shop in or about August, 1983, after filing the said application which he had let out for being used as Post Office and is now in his possession. Thus the applicant has got back three of his shops in his own premises." The respondent filed his affidavit-in-evidence wherein he stated that "the contents in the written statement are fabricated and false the deponent requires the premises to accommodate his children who are living with him and also to seek his own earning by utilization of the shop for same business." The respondent admitted in his cross examination, that "there were 3 shops other, than the demised premises (shop) 2 shops were got vacated since last 10 years back." The respondent admitted in" his cross-examination that one another room was rented out to the Post Office which of vacated in August, 1983. The position that emerges from the evidence is that the respondent is owner of four shops including the shop in dispute. It is an admitted position that he got vacated two shops since about ten years back. It is also admitted position that shop which being used as Post Office got vacated in August, 1983. The respondent is in possession of these three shops. The mere use of the shops as residential premises does not change the character of the shops. In the circumstances, the respondent being in occupation of the three shops on the ground floor, which are admittedly shops in character, could not derive benefit of section 14(1) by filing alt application for eviction of the appellant from the shop in dispute, which, as observed earlier, has not lost their character and would continue to be treated as shops premises. Under section 14 (2) a landlord is not entitled to avail benefit of section 14(1) if he is in occupation of a shop owned by him in any locality. The respondent is admittedly in possession of these three shops which in the present case is treated as a building as defined in Section 2 (as of the Ordinance) and as such he could not maintain an application under section 14(1) for the eviction of the appellant from the shop in dispute. The result is that the appeal succeeds and the order of eviction against "the appellant is set aside. In the circumstances of the case the parties shall bear their own costs. H.B.T./M-286/K????????????????????????????????????????????????????????????????????????????????? Appeal accepted.