1989 PLP 3603 (MLD)

Mohammad Jamil for Respondent. Date of hearing: 5th December, 1988,, Mst. Aisha Bai is landlady of premises bearing Survey Nos. 18 and 19, C.T.I., in Old Town Quarters, Karachi. She filed rent case on the grounds of default, additions and alterations and for the purpose of re-construction. Before the Rent Controller issues No. 1 and 2 were not pressed. The Rent Controller considered issue of re-construction and dismissed the rent application by an order dated 23rd October, 1986, against which this first rent appeal has been filed. I have heard Mr. Khuda Bux Omrani for the appellant. It is argued that appellant got the plan for reconstruction, approved from the competent authority but due to the pendency of the rent cases construction could not be raised. It is submitted that in F.R.A No. 44/85 this Court allowed the ejectment on the identical grounds subject to the decision of this F.RA. He has referred to the cases reported in 1981 S.C.M.R. 782 and PLD 1985 Kar.

201. Mr. Mohd. Jamil learned counsel appearing for the respondent argued that this rent case has been filed with mala fide intention as appellant had not pressed the other issues before the Rent Controller except re-construction. It is submitted that competent authority has suspended the order of reconstruction of the building on 1-12-1983 therefore the rent case is not maintainable. He has referred to a case reported in 1984 CLC 3140. It is an admitted position that plans for the construction of building were approved on 25-11-1980 and in the year 1983 approval was suspended and it is argued by Mr. Omrani that matter is pending for consideration before the authorities. The re-construction of building was withheld by resolution No. 518 by the Controlling Authority on the grounds that no permission for reconstruction should be accorded by the Building Control Authority unless agreement is arrived at between the landlord and tenants for alternate accommodation or mutually agreed compensation and any permission if already granted by the Building Control Authority shall stand suspended with immediate effect provided no physical construction has been started and premises are still occupied by the tenants. Th:3 resolution has not yet been withdrawn as such the construction has not been raised. Presently the plans stand approved and have not been cancelled but construction could not be raised in view of the above resolution. This has also been observed by the Rent Controller in his order. The competent authority after going through the formalities approved the plan and evidence of architect examined by the appellant cannot be relied upon when the approval of the re-construction has not been challenged. On the identical point this Court has already allowed FRA No. 44/85 and as it appears that no appeal has been filed against this order in the Supreme Court. In that appeal it was specifically decided that landlady will make provision for rehabilitation of the tenant. In the case of M/s. Pak Army Furnishing Stores v. Syed Ali Akbar Riivi and 3 others reported in PLD 1985 Kar. 201, identical point was dealt with and it was observed as under:- "in the present case as all permissions have been suspended the respondent even after taking over possession cannot demolish the building and start reconstruction either at the disputed place or other part of the building. Therefore, two months time is granted to the appellant to vacate the disputed premises. However, if the no-objection certificate and approval of building plan is not revalidated or suspension is not withdrawn within this period of two months, the appellant shall not be ejected till such time the respondent obtains a valid building plan from the Authority." The litigation is pending since 1980. The appellant has not been able to start construction since then. The competent authority has suspended the plan on other grounds, which are not legal. However I do not like to enter into this controversy but grant three months time to appellant to seek order from the Building Control Authority and then he is entitled to have a relief under the Sind Rented Premises Ordinance on the ground of re-construction. In case suspension order is not withdrawn then the respondent shall not he evicted. In the event of approval the respondent shall vacate the premises within two months and after the ejectment the respondent shall be entitled to the rights and protection provided to tenant tinder section 15(3) (4) of the Sind Rented Premises Ordinance, 1979 for which the Rent Controller is competent to pass an appropriate order. Subject to the above conditions the appeal is allowed with no order as to costs. M.Y.H./A-542/K Appeal allowed.