1986 PLP 1499 (CLC)

Ahsan Ali T. Khawaja for Respondents. Date of hearing: 13th October, 1985. This appeal is directed against the order, dated 10‑5‑1982 whereby the XIIth Senior Civil Judge and Rent Controller, Karachi allowed the appellant possession of only a shop measuring 18 x 61 feet and directed the respondent to hand over the possession of the same.

2. The facts are not much in dispute. The appellant was in occupation of a shop which had front on Campbell Street. The appellant was doing business of Sign Board painting. On 31‑1‑1974, the ejectment of the appellant was ordered on the basis of reconstruction. During the construction of the building, the appellant applied on 3‑9‑1976 for being put in possession of such area in new building as does not exceed the area of the appellant in the old building. On 8‑12‑1976 the respondent filed objections to the same, stating that the building was incomplete. On 17‑12‑1976 the application of the appellant was dismissed. The appellant filed the appeal before the District Judge within the time prescribed under law and the same was eventually allowed on 12‑3‑1977 and the matter was remanded back to the Rent Controller for decision on merits.

3. The appellant has been eventually allowed a space of 18' x 6J' area but the appellant contends that previously he was on Ex‑Campbell Street side and his shop was measuring 30' x 15' and, therefore, he has been prejudiced by the order under appeal.

4. Mr. Ehsan Ali T. Khawaja contended that there is no proof about the area which was in occupation of the appellant and hence 18 x 6J feet is the correct measurement for which a shop had been given to him. He further stated that all the other shops have been rented out to the other tenants on 1‑1‑1977 during the time that there was no proceedings pending. He further submitted that the only area which was available in the building was that area which was previously in occupation of respondent/ landlord, namely, 22 x 94 feet and, therefore, there is no space which is available on the Campbell Street side which could be given to the appellant.

5. In the first instance, the respondent had no business of letting out all the shops to different tenants on 1‑1‑1977 when the appellant had been pursuing his remedy under section 13(5‑B) of West Pakistan Urban Rent Restriction Ordinance, 1959, since 3rd of September, 1976. The respondent should have waited at least till the time of filing the appeal had expired. If the appellant had not filed the appeal within the time prescribed in law then the respondent could legitimately let out the building to other people but in the present case they had no such right to let out the other shops to other tenants and particularly the shops on the Campbell Street side.

6. On 8‑12‑1976, the respondent had taken up the position that the building was incomplete and, therefore, their letting out its shops on 1‑1‑1977 has smacked of lack of bona fide. In any case, the respondents have taken an action prejudicial to the appellant and, therefore, they have to provide him with alternate accommodation from the space which had been stated by the Commissioner in his report be in possession of the respondent.

7. I am in agreement with Mr. Ehsan Ali that the measurement of the shop of the appellant was only about 15 x 8 feet because there is nothing against that assertion, which has been at all proved by the appellant. However, it is admitted position that the appellant was on the front side of the Campbell Street before the ejectment. The same is amply proved by Exh.6 photograph, for which there is no rebuttal. But now the appellant has been given a shop at the extreme end away from road. If the appellant is thrown at the back of the building then his business would be adversely affected and in any case he will be having a space at a disavantageous position than it was before.

8. I do not want to dilate upon the advantage of having a shop on the road side and the disadvantage of having a shop at the end of the building about 85 feet away from the road in the interior of the building. But shop on the road side is visible to every one and has obvious advantage of display to the customers, while the most interior part of the boiling carries with it the difficulty that nobody knows where the' shop is. The business of the appellant might be a failure if he was given a shop at the end of the building.

9. Since the respondents have taken a pre‑emptory action on 1‑1‑1977, during the time which was available to the appellant for filing an j appeal and the respondents have inducted every tenant in the front portion of the building, therefore, they have to provide a space to the appellant from the area which is in their possession at the Campbell Street side. I, therefore, direct the appellant to create, out of the area of 22 x 94 sq. ft. in their own possession, a shop on Campbell Street side measuring 18 x 61 feet, within three months of this order and hand over possession of the same to the appellant. The front of the shop will be 61 feet on Campbell Street side and it would be 181 feet deep. I may note here that the respondent's counsel had conceded that shop of the respondent previously measured 15' x 8' which is 120 sq. feet in area. The R.C. allowed an area of 18' x 61' which is 117 sq. feet in area. I have preferred to allow the measurement allowed by the Rent Controller and not those conceded by the respondent's counsel. In this choice I have been influenced by the consideration that more important position is the side of Campbell Street. If 8 feet from the Campbell Street side are taken away from 22 width area in possession of the respondent then they would be left with only 14 feet as frontage on Campbell Street side while they would be left with 151 feet area on this side if the area of the shop of the appellant was allowed as 18 x 6]; feet and its frontage on Campbell Street was 61 feet. This would be) more advantageous to the respondent and would not be uncomfortable' even to the appellant who will be having some frontage on main road and area would be almost equal to the one allowed by R.C. The appellant will be liable to pay such rent as may be determined by the Rent Controller. These are the reasons of the short order passed by me on 13‑10‑1985. A.A. Order accordingly.