' The facts giving rise to this Second Appeal are that the respondent-landlord obtained an eviction order dated 12-8-1967 in respect of a shop premises in occupation of the appellant tenant on the ground that the premises was reasonably and in good faith required for reconstruction. The tenant vacated the shop premises within two months of the eviction order as directed by the Rent Controller. The landlord who was obliged to put the tenant in possession of a shop in the reconstructed building within nine months failed to do so though called upon by the tenant vide his notice dated 18-7-1968, which led to an application by the tenant under section 13 (5-B) of the Sind Urban Rent Restriction Ordinance, 1959, for restoration of possession.
2. In the written statement the landlord expressed his readiness and willingness to deliver the possession of the shop within two months. During the pendency of the proceedings the landlord on 3-1-1969 replied to the aforesaid notice dated 18-7-1968 stating that he was ready and willing to give possession of the reconstructed shop to the appellant after settlement of rent. It would appear that between January 1969 and April, 1969 the landlord who was in occupation of premises adjoining the reconstructed shop, vacated that premises and occupied the reconstructed shop of which he was required to give possession to the appellant. On 24-4-1969, the landlord moved an application for amendment of his written statement in which the plea sought to be raised was that he was not liable to give possession of the reconstructed shop on the same premises where the original shop stood and that he was ready and willing to give another premises to the appellant.
This application was dismissed on 9-5-1969. The Rent Controller allowed the appellant's application under section 13 (5-B), by his order dated 27-7-1972, after fixing the rent of the reconstructed shop at Rs, 60 per month.
3. In appeal the Appellate Court reversed this order holding that the landlord was not obliged to deliver to the tenant reconstructed shop premises on the same spot where the original shop existed. It may be noticed here that the alternative shop which was offered to the tenant though larger in size, is admittedly on the back side of the building and, therefore, away from the main road where the original shop was situate.
4. The learned Appellate Court took the view that under section 13 (5-B), there was no obligation on the part of the landlord to put the tenant in possession of the premises at the exact spot on which the previous tenement existed, for it was obviously unreasonable and in many cases impracticable to do so. Subsection (5-B) of section 13 of the Ordinance reads as follows :- "(5-B)-Where in pursuance of an order under clause (vi) of subsection (2), a 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 of similar accommodation in the locality."
5. Now, to begin with the aforesaid subsection must be read in conjunction with clause (vi) of subsection (2) of section 13 and so read it is clear that other things being equal, the landlord is obliged to put the tenant in possession of the new premises as nearly as it may be possible on the same site which was originally occupied by the tenant. If the new premises happens to be less in area the tenant cannot complain nor can he make any grievance if the restoration to the original site was not possible or practicable by reason of the nature or type of newly-constructed building.
The aforesaid subsection obliges the Rent Controller to take into consideration the needs of the tenant. It therefore, follows that in the absence of compelling circumstances the tenant cannot be denied restoration to the original site. If the landlord is given unrestricted discretion to give one or other premise in the newly-constructed building to the evicted tenant, the tenant's right to restoration may become illusory making the subsection redundant.
6. In the present case the landlord had in fact constructed a shop premises at the site of the former tenement. It's area was less than the original area of the demolished shop. What was offered to the tenant as an alternative accommodation was a shop premises, though larger in area but situate at the back of the building and not on the main road where stood the original shop. The impugned order, notwithstanding absence of any compelling reasons, denied to the tenant restoration of a shop at the original site and permitted the landlord to obtain an advantage. The relevant portion of the Judgment of the Rent Controller is as follows :- "The opponent has showed his willingness to give another shop to the applicant and not the shop, which is constructed at the site of the old shop of the applicant. He has retained possession of this shop with himself for his office use. It shows that the opponent has deliberately failed to put the applicant in possession of the newly-constructed premises. Under section 2 (a) of the West Pakistan Urban Rent Restriction Ordinance, 1959, 'Building', means any building or part of a building let for any purposes, whether being actually used for that purpose or not. In the instant case the applicant had given possession of the shop to the opponent for reconstruction. Under the law the applicant is to be given the shop in the newly-constructed building at the site at which his original shop was situated."
7. Mr. Saeed A. Shaikh, the learned counsel for the respondents-landlord invited my attention to two decisions which in his opinion support the view that all that is required is the reinstatement of the tenant in the premises and certainly not a premises on the same spot and at the same site at which the demolished premises stood. The first case is from Quetta jurisdiction in which the observation is that the landlord is entitled to re-build his property and the tenant cannot question the nature of reconstruction of the old building on the ground that it would not suit his requirement.
Abdul Manan v. Karam Illahi (1). The other decision which is of the Supreme Court of Pakistan is the case of Abdul Bari v. Khadim Hussain (2). In this case like the Quetta case the landlord has sought the eviction of the tenants both on the ground of bona fide reconstruction and also personal use.
The tenant's contention which was repelled was that what had been let out to him was non- residential premises and by reconstructing a residential building the tenant's right to be re- inducted was denied to him. The argument was that it was not open to the landlord in the circumstances to change the kind of construction which the landlord wants to reconstruct which has the effect of denying to the tenant re-induction in the new building. The contention was repelled in these words :- "We regret we cannot subscribe to this line of reasoning, as we find that clause (vi) of subsection
(2) of section 13 of the Ordinance does not, by itself, impose any restriction or limitation as to the nature and purpose of the new building which is to be reconstructed in place of the old building. If this clause is to be read as being subject to the provisions of subsection (5-B) of the same section in the sense that the nature and character of the building cannot be changed by reconstruction, then the result would be to prevent future development of property even though its environment and the requirements of the community at large, may have changed. Such an interpretation would be altogether reasonable and against the public interest, and should be avoided unless the words of the statute are so clear and unambiguous as to make it inevitable. This does not appear to be the case here.
' We consider, therefore, that the ground of reconstruction mentioned in clause (vi) of subsection
(2) of section 13 does not limit the same to reconstruction of a building of the same type and character and for the same purpose, namely, residential or non-residential as the case may be.
However, the provisions of subsection (5-B) would come into play if the reconstructed building is of the same type and character and suitable for the same use as was the old building. In other words, the provisions contained in clause (vi) of subsection (2) of this section are subject to subsection (5-B) thereof only to this limited extent, and to the extent of preventing a conversion, by reconstruction, of one type of building into another."
8. In the present case it may be noticed that there was no difficulty in re-instating the tenant in a shop premises at the same site where the original shop stood after the building was reconstructed.
In fact, the landlord had now so manoeuvred himself and created a cause for denying to the tenant_ his right to reasonable re-instatement in the new building. The learned counsel conceded that originally there were three non-residential premises facing the main road, which included the shop of the tenant, an office occupied by the landlord and another small shop, together with a passage. What the landlord did was to create a large non-residential premix on the ground floor by including the portion which was Originally occupied by him and the small shop tenanted by another person under a private arrangement, and let out the whole premises to a Bank obviously to his great advantage and then moved in the adjoining newly-constructed shop. Premises where stood the old shop premises of the tenant who was in lieu thereof offered a shop with no frontage at all, such less on the main road for its {{FOOT NOTE}}
(1) PLD 1971 Quetta 1 (2) PLD 1978 SC 78 {{FOOT NOTE}} ' access is through a common passage. Furthermore, it may be noticed that the landlord did not claim in his eviction application any premises in the proposed construction for his personal use. In the present case a reasonable premises was available in which the tenant could have been justly and fairly inducted but instead the landlord changed the situation with a view to obtain for himself an advantage, and he, therefore, cannot now be heard to say that I will occupy the shop premises on the front side for use as office and let the tenant, who is a shopkeeper by profession have a premises at the back which cannot at all be used as a shop premises. The two cases referred to, therefore, are clearly distinguishable.
9. The result, therefore, is that this appeal is allowed with the result that the respondents-landlords would be bound to hand over possession of the shop premises in terms ordered by the Rent Controller. The appellant will also be entitled to costs.
10. Before parting Mr. Saeed A. Shaikh, stated that the impugned order sets aside the order of the Rent Controller, which apart from directing the landlord to give possession of the shop in question to the tenant, had also fixed its rent and the argument was that the Rent Controller be directed to fix the rent afresh. If the Appellate Court order disappears by this judgment it must follow that the order of the Rent Controller will stand including the order fixing the rent and I am, therefore, unable to appreciate to what purpose this argument is advanced.