1999 PLP 1427 (CLC)

(1) That parties have compromised the dispute outside the Court in the following terms as such the matter may be disposed of accordingly. (a) Petitioner/tenant will hand over possession of the site to the respondent/ landlord on or before 15‑6‑1997 and the respondent/landlord will start construction work on or before 15‑7‑1997 and complete the shop to be handed over to the tenant within one year (from 15‑7‑1997): Failing which possession will be restored to the tenant and respondent/landlord shall pay Rs.5,00,000 as penalty to petitioner/tenant without further litigation. "

4. Thereafter, on the basis of the compromise, the appellants started raising construction over the shop in dispute. It may be mentioned here that during this period the appellants got approved another plan from Municipal Corporation wherein changes were brought in the old plan. The said plan was approved vide building Permit No. 153, dated 27‑8‑1997. The appellants started raising construction on the site according to the new approved plan. The respondents filed an application under section 13(5‑B) of the Ordinance wherein it was mentioned that since the appellants have violated the terms of the agreement arrived at before the Honourable Supreme ‑Court, thus; they are entitled to Rs.5,00,000 as damages and possession of the shop in dispute. The appellants filed rejoinder to the said application wherein it is mentioned that the appellants have approached the respondents for settling rent according to the prevailing market rate and take possession of the newly constructed shop in dispute. The learned Rent Controller vide order, dated 30‑9‑1998 directed the appellant to pay Rs.5,00,000 in damages and hand over vacant possession of the shop in dispute and thereafter, file an application for determination of fair rent. The operative portion of the order of the learned Rent Controller is reproduced below:‑‑. "Because of the upshot of above discussion I am of the opinion that applicant/tenant complied with all Court orders while landlord/ respondent playing dilly dolly with the matter, therefore, landlord/respondent is liable to pay penalty amount and deliverance of possession of shop in question. Thus, landlord/respondent is directed to pay the penalty amount of Rs.5;00,000 as well as hand over vacant possession of shop in dispute to the applicant/tenant, forthwith and at the same time Civil Nazir of this Court will require to be hand over the vacant possession of shop bearing Municipal No.2‑33/23 situated at Liaqat Bazar, Quetta to the applicant in case of resistance assistance of police authority is also extended. However, landlord/respondent is at liberty to file application for determination of fair rent." Hence this appeal.

5. Mr. Tariq Mehmood, Advocate for the appellants contended that the impugned order under appeal is not sustainable as the learned Rent Controller was under legal objection to have determined the question of fair rent simultaneously at the time of restoring possession to the respondents. The learned counsel further contended that as far as penalty of Rs.5,00,000 in view of the agreement arrived at between the parties is concerned, the learned Rent Controller has, without recording any evidence, imposed the same on the appellants.

6. Mr. Tahir Mahmood Khan, Advocate supporting the impugned order contended that the appellants have been avoiding to hand over possession of the premises in dispute, thus, the learned Rent Controller has rightly imposed the fine of Rs.5,00,000 and ordered for restoration of possession in favour of the respondents.

7. I have heard the arguments of the learned counsel for the parties and have also perused the record of the case.

8. Adverting to the arguments of the learned counsel for the appellant it is appropriate to refer to section 13(5‑B) of the Ordinance which is as below,:‑‑ Section 13 (5‑B).‑‑‑ Where, in pursuance of an order under clause (vi) of subsection (2), landlord has obtained possession of a building (in this subsection referred to as the old building) and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation and the Controller shall make an order accordingly in respect of the area applied for or such similar area as considering the location, and type of the new building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent, similar accommodation in the locality."

9. Perusal of the above quoted section would reveal that where the landlord has obtained permits pursuant to the order passed under section 13(2‑vi) of the Ordinance and constructs a new building in place of the old building, the tenant who was evicted from the old building may apply to the Rent Controller for order directing that he be put in possession of the area in the new building. It is further stated that the Rent Controller on such application shall direct the landlord to restore possession to the tenant of similar area in the new building on prevailing rent of similar building in the locality. The argument of Mr. Tariq Mehmood, Advocate for the appellant has substance that under section 1315‑B) while passing order for restoration of the new building in favour of the tenant the Rent Controller is, at the same time, under obligation to determine the question of fair rent. In the instant case the learned Rent Controller has directed' the appellants to restore possession of the premises in dispute to the respondents without determining fair rent. Thus, in my considered opinion, the learned Rent Controller has failed to exercise jurisdiction in not determining the question of fair rent. In this regard I am fortified with the view taken in. Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC

363. While interpreting the provisions of section 13(B) of the Ordinance, the Honourable Supreme Court has held as under:‑‑

"A perusal of the above quoted clause (vi) of subsection (2) of section 13 of the Ordinance indicates that a landlord is entitled to apply for eviction of a tenant if he reasonably and in good faith requires the building or rented land for reconstruction or erection and that he has obtained the necessary sanction for the said reconstruction or erection from the Authorities concerned. Whereas subsection (5‑B) of section 13 of the Ordinance confers a right on a tenant by providing that where in pursuance of an order under clause (vi) of subsection (2) of section 13, a landlord has obtained possession of a building, and constructs a new building on the same site, the tenant who was evicted from the old building, may before the completion of the new building and its occupation by another person, apply to the Rent Controller for an order directing that he be put in possession of such area in the new building which does not exceed the area of the old building of which he was in occupation and there upon the Rent Controller shall make an order accordingly in respect of the area applied for or such similar area as considering the location and the type of the new building and the needs of the tenant, which he may deem just on payment of rent of similar accommodation in the locality."

10. Adverting to the next limb of the arguments that without recording any evidence, the learned Rent Controller has imposed fine of Rs.5,00,000 on the appellants to be paid to the respondents, it may be noted that in the rejoinder also the appellants have mentioned that they themselves approached the respondents to take possession of the newly constructed shop subject to determination of fair rent but they avoided to do so and further stated that even now they are willing to deliver vacant possession of the shop subject to determination of fair rent. The learned Rent Controller without taking the rejoinder filed by the appellant into consideration, outrightly imposed fine of Rs.5,00,

000. The findings of impositioning of penalty on the appellant is based on no evidence, thus, the learned Rent Controller has exceeded his jurisdiction in coming to such conclusion.

11. As a result of the above discussion and keeping in view the provisions of section 13(5‑B) and the law laid down by the Honourable Supreme Court in Abdul Ghaffar‑Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 (supra), I am constrained to hold that the findings arrived at by the learned Rent Controller are not sustainable. Therefore, the impugned order, dated 30‑9‑1998 passed by Civil Judge‑-IV‑cum‑Rent Controller, Quetta is set aside and the case is remanded to him with direction that he should simultaneously determine the question of fair rent alongwith handing over of the possession to the respondents. Parties are left to bear their own costs. H.B.T./757/Q Appeal allowed.