1. ' SYED HASSAN AZHAR RIZVI, J.---C.M.A No, 2070 of 2008. By this application, the plaintiff has sought permission to raise construction on the privately sub-divided area of 146 sq. Yds. Of Plot No,RC- 8/11/2/2 (measuring 337.25 sq. Yards) situated at Ranchore Line Quarters, M.A. Jinnah Road, Karachi at its own expense.
2. ' Counter-affidavit to the listed application has been filed by one Ghulam Hussain wherein it has been stated that property in question was forcibly demolished by KBCA therefore the lease and/or the tenancy of the plaintiff has been extinguished. It has also been stated that plaintiff cannot request this Court to rebuild the whole plot according to their whims and to rebuild the disputed property is the exclusive right of the owners. Therefore, the present application is not maintainable and liable to be dismissed with cost.
3. ' I have heard Mr. Liaquat Merchant, learned counsel for the plaintiff and Mr. A.F. M. Mukharam, learned counsel for the defendants.
4. ' Mr. Liaquat Merchant learned counsel for the plaintiff has contended that the plaintiff has acquired an indefeasible right and interest in the suit plot in terms of lease agreement dated 19-12- 2002 executed between the plaintiff and defendants. He contended that the plaintiff paid a sum of Rs,31.5 million to Ali Asghar son of Ghulam Raza, the lessee, who was in occupation of the present suit in consideration whereof the said lessee executed a sub-lease on 14-12-2002 for 20 years in respect of this premises in favour of the plaintiff with the option of extending the lease for a further period of 20 years. He also contended that the present defendants had earlier executed a lease agreement dated 19-4-2002 in favour of All Asghar the lessee whereby the subject premises of the present suit were given to him on lease for a period of 20 years. Learned counsel further contended that the defendants were paid a handsome amount under the said lease agreement which contained the said lease agreement which contained the power and authority to sub-let, Under- let, assign, lease or sub-lease the premises and part with possession thereof. He further submitted that the defendants were paid a sum of Rs,2.5 million as consideration for the lease and in turn the defendants executed a lease agreement with the plaintiff dated 19-12-2002 and the plaintiff paid Rs,31.5 million to Ali Asghar (the lessee) vide four pay-orders, dated 14-12-2002. He also submitted that in furtherance of the grant of lease by the defendants to All Asghar dated 19-4-2002 and grant of sublease by Ali Asghar in favour of the plaintiff with the knowledge and consent of the defendants, a declaration/authorization was executed by the defendants on 3-12-2003 confirming the sub-lease in favour of the plaintiff and power/authority was conferred on the sub- lessee/plaintiff to act on behalf of defendants for obtaining permission from KBCA to renovate and repair the premises and make _alterations and additions thereto according to the convenience of the plaintiffs and in this connection to also act and appear and file documents on behalf of the defendants in relation to the above work. He further contended that in pursuance of that authority the plaintiff submitted a building plan for repairing and renovation to/in Karachi Building Control Authority and paid challan for scrutiny fees. He submitted that the defendants have received and accepted rent from the plaintiff from December, 2002 to 19-6-2009 along with usual admitted increase, thereafter the defendants have refused to accept the rent, which is being deposited in Court in MRC No,827 of 2009 and has paid upto 19-6-2011.
5. ' Learned counsel urged that the plaintiff has an inherent and vested right and interest in the premises which is the subject-matter of the present suit as the defendants have neglected and failed to reconstruct the premises after its demolition several years ago the plaintiff , is entitled to reconstruct the property on the demised area of 146 square yards after obtaining the approval from KBCA as the plaintiff continues in physical possession of the premises. He has further contended that the construction, shall be raised at the cost of the plaintiff and the plaintiff shall simultaneously continue paying. The agreed rent to the defendants.
6. ' In rebuttal, Mr. A.F. M. Mukkaram learned counsel for the defendants has referred to the counter- affidavit filed by the defendant No,3 wherein he admitted that the subject property was demolished by KBCA, however, according to the defendants the lease and/or tenancy of the plaintiff has been extinguished. He further contended that the plaintiff cannot compel the defendants to continue the tenancy in such circumstances. He also contended that plaintiff cannot request this Court to allow the plaintiff to rebuild the whole plot according to their whims and to rebuild the disputed property is the exclusive right of the owners. Learned counsel further submitted that the present suit has become infructuous after the demolition of the building by KBCA and the plaintiff has no right, title or interest to tile the present application. He also contended that the agreement which have been referred to by the learned counsel for the plaintiff and are enclosed along with the affidavit filed on behalf of the plaintiff pursuant to the order dated 17-1-2011 the lease agreement for 20 years and submitted that none of the agreements has been registered, which is the requirement of law.
7. ' To the objection raised by the learned counsel for the defendants regarding the registration of the agreement executed between the plaintiff and defendants, learned counsel for the plaintiff has submitted that the plaintiff has paid stamp duty to the Deputy Chief Inspector Stamps on 26-4- 2005 amounting to Rs,31,560 on the lease agreement for 20 years rent and has enclosed copy of the paid challan along with the affidavit on behalf of the plaintiff filed pursuant to the order of High Court dated 17-1-2011.
8. ' I have heard the arguments advanced by the learned counsel for the parties and examined the material available on record.
9. ' From the perusal of the documents enclosed along with the memo. Of plaint as well as affidavit filed on behalf of the plaintiff on 31-1-2011 it is prima facie established that the plaintiff is the legal and lawful tenant of the defendants in respect of piece and parcel of the shop premises (Corner) known as Cafe Al-Shiraz, a portion privately subdivided area of 146 sq. Yds. Of Plot No RC-8/11/2/2 situated at Ranchore Line Quarters, M. A. Jinnali Road, Karachi. The plaintiff has paid a huge amount of Rs,34 million to the lessee as well as to the defendants for getting the above said property for lease for a period of 20 years extendable lease for a further period of 20 years. The lease period was commenced from 19-12-2002 and ending on 18-12-2022 which is extendable for a further period of 20 years at the option of the sublessee. The defendants have neither denied the execution of lease agreement dated 19-4-2002 and sub-lease agreement dated 14-12-2002 executed between the defendants and Ali Asghar and lease agreement dated 19-12-2002 between the plaintiff and defendants, handing/taking over possession, receipts, declaration/authorization by the defendants in favour of the plaintiff dated 19-12-2002. The landlord/defendants have issued rent receipts to the plaintiff from 19-12-2002 till 19-6-2009 thereafter the plaintiff depositing rent of the subject premises in MRC No,827/2009 in they name of the defendants in the Court of IX Rent Controller Karachi (South) upto June 2011. The plaintiff has also enclosed the repairing and renovation plan on the subject plot of the present suit and has already paid scrutiny fee. These documents referred to above established that the plaintiff's tenancy right continue to exist notwithstanding the demolition of the building on the property in question and the defendants cannot be permitted to take advantage of their own act of omission or commission.
10. ' Admittedly the tenancy is from 20-12-2002 to 19-12-2022 and further extendable for a period of 20 years as specified in the agreement. From the contents of the lease agreement executed between the plaintiff and defendants on 19-12-2002 as well as the declaration/authorization executed by the defendants on 3rd December, 2003 the defendants authorized the plaintiff to act upon on their behalf to obtain permission from KBCA to renovate and repair the tenement premises arid alter, addition therein on his own risk and cost and to make the tenement premises according to his comfort and convenient, subject to law. The defendants further authorized the plaintiff to act, appear and file the documents on their behalf.
11. ' When confronted the learned counsel for the defendants whether the contents of the lease agreement in respect of the subject property which has been enclosed with the affidavit filed on behalf, of the plaintiff pursuant to the order dated 17-1-2011 he frankly conceded that he has not disputed the contents of the agreement. Learned counsel has also not denied the amount received by the defendants as mentioned in the lease agreement.
12. ' The present suit has been filed on 10-1-2005 and for last more than six years despite of receipt a huge amount from the plaintiff the defendants have not taken any step for reconstruction of the building. On 12-1-2005 the defendants were restrained from creating any third party interest over the leased portion of the suit blot.
13. ' The offer of the plaintiff to reconstruct the subject property of the suit on the demised premises after obtaining the approval from KBCA , at his cost when the plaintiff undertakes that he shall simultaneously paying the agreed rent to the defendants is fully justified and reasonable. I, therefore, allow the plaintiff to reconstruct the property on the demised area of 146 sq. Yards on the privately subdivided Plot No,RC-8/112/2 situated at Ranchore Line Quarters, M.A. Jinnah Road, Karachi after obtaining approved building plan from KBCA as required by law at its own risk and cost. The defendants are directed not to create any type of hindrance/obstacle in the way of the plaintiff for reconstruction of the demised premises and plaintiff shall continue to pay the agreed rent to the defendants upto the period of tenancy.
14. ' The application is allowed in the above terms.
2. Deferred.