' IRFAN SAADAT KHAN, J.---This constitutional petition has been filed against the Judgment dated "October, 2010" passed by VI-Additional District Judge, Karachi South in F.R.A. No,2 of 2008, whereby the appeal filed by the present petitioner against the Order dated, 19th November, 2007, passed by V Rent Controller, Karachi South in' Rent Case No,183 of 2002, was dismissed.
2. Brief facts of the case are that the father of petitioner was a tenant of the respondents since 1948 in respect of commercial as well as residential tenements in the old building constructed on Plot No, NP/10/21, Moonji Khosi Street, Jodia Bazaar, Karachi and after the death of his father the petitioner himself became the tenant in respect of the said premises at the monthly rent of Rs,70.
Disputes arose between the petitioner and the respondents and criminal cases were lodged by them against each other. Thereafter the building was declared as dangerous and was demolished.
The respondents thereafter constructed a new building on the said plot, however, the applicant was not restored as tenant in the new building. Thereafter the petitioner filed a rent case bearing No,183 of 2002 under section 15(3) of the Sindh Rented Premises Ordinance, 1979 ("the Ordinance") contending that since the petitioner was tenant of the respondents in respect of the old building he was entitled for possession of the appropriate area in the new building constructed on the said plot and as the respondents have not given him possession, he may be accommodated in the newly constructed building by putting him in physical possession of appropriate area therein. The matter thereafter was argued at length before the learned Rent Controller who, after examining the parties at length and threshing out each and every aspect of the case, vide a da,iled and elaborate Order dated 19-11-2007, came to the conclusion that the present petitioner is not entitled to be given possession of any portion in the newly constructed building on the said plot. Being aggrieved with the said Order an appeal was filed by him before the VI Additional District Judge, Karachi South who also, after going through the entire material on record and hearing the parties at length, affirmed the Order passed by the learned Rent Controller vide order dated "October, 2010".
3. Petitioner, Mirza Sabir Baig, appeared in person and submitted that the Judgment and Order passed by the two Courts below were incorrect as they have not appreciated the facts of the case in proper perspective and are based on incorrect appreciation of law and erroneous assumptions of fact. He also submitted that the respondents Nos.1 to 5, in connivance with the concerned government functionaries, demolished the old building wherein the petitioner was living along with his family and had illegally dispossessed him and, more so, have failed to accommodate him in the newly constructed building. He also submitted that the two Courts below have made incorrect interpretation of sections 15(3) and 15(4) of the Ordinance and have not even considered the evidence produced before them. He, therefore, prayed that the impugned judgment/order may be set aside and he may be put in possession of some appropriate space in the new constructed building on the said plot.
4. Mr. Ch. Muhammad Saleem Iqbal, advocate for the respondents, submits that the present petition filed by the petitioner is mala fide as the petitioner was fully conscious of the fact that new building is being constructed on the said plot but he did not make any request that he may be accommodated in the new building. While elaborating his view point he stated that the old building was declared dangerous by the Government authorities and those authorities had demolished the old structure on the said plot. He stated that the petitioner has come to the Court with unclean hands and that the provisions of sections 15(3) and 15(4) of the Ordinance are very clear in this regard as the application under section 15(3) of the Ordinance has been moved by the petitioner at a belated stage on which aspect detailed judgments have already been given by the two Courts below. He further submitted that concurrent findings are against the petitioner who has not stated a single word as to how the judgments passed by the two Courts below are erroneous, illegal and are a result of misreading and non-reading of the evidence. He prayed that in view of the facts and circumstances of the case this petition may be dismissed and the judgments of the two Courts below may be maintained.
5. I have heard the petitioner in person and. Mr. Ch. Muhammad Saleem Iqbal, advocate for the respondents and have perused the record.
6. It is an admitted position that the petitioner was a tenant in respect of a portion of the old building standing on the said plot which was demolished as it was declared dangerous by the Government authorities. An application under section 15(3) of the Ordinance was filed by the petitioner on the ground that since he was dispossessed by the respondents for constructing a new building on the said plot he was entitled for an appropriate portion in the new building constructed thereon.
7. It is seen that the whole case of the petitioner revolves around the interpretation of sections 15(3) and 15(4) of the Ordinance, which are reproduced below:-- "(3).
' Where the landlord who has obtained the possession of the premises for the purpose of reconstruction of the building or erection of a new building shall demolish the existing building within six months of the taking over of the possession of the premises or, as the case may be, commence erection of the new building within two years of the taking over the possession of the premises, and in case the landlord fails to demolish the building as aforesaid the tenant shall be entitled to be put into possession of premises and for the purpose he may apply to Controller for an order in that behalf " '
"(4) Where the landlord constructs the building as aforesaid the tenant who was evicted from the old building may, before the completion of 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 smaller 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.
8. A perusal of subsection (3) of section 15 of the Ordinance would reveal that if a landlord obtains a demised premises for the purposes of reconstruction of the building or for erection of a new building the landlord has to demolish the old building within six months of the taking over of possession from his tenant(s) and he is further under obligation to start erection of the new building within two years of the taking over of possession. In case the landlord fails to demolish the building within six months, then the tenant shall be entitled to be put into possession of the premises for which purpose he may move an application to the Controller for appropriate orders. It is clear that this subsection is not applicable to the present case as, admittedly, the old structure was demolished and a new building was erected on the said plot.
9. So far provisions of subsection (4) of section 15 of the Ordinance are concerned, it relates to a situation where the landlord constructs a building after demolition of the old structure. In this case the tenant in the old building is entitled to apply to the Controller for an order directing that the tenant be put in possession of such area in the new building as does not exceed the area in his occupation in the old building or such smaller area as the Controller deems appropriate keeping in view the location and type of the new building on such rent as may be determined by the Controller on the basis of rent of similar accommodation in the locality. However, there is precondition attached to this right and that is that the tenant had to apply to the Controller before completion of the new building and before its occupation by another tenant.
10. In the instant case, there is no doubt that the petitioner was tenant of the respondents in respect of the old building on the said plot. However, it is not an admitted position that the petitioner/tenant vacated-the tenement in his pbssession for the purpose of reconstruction of the building. It is stated by the petitioner himself that the respondents, in connivance with "opponents Nos. 6 and 7" got issued a notice declaring the building as dangerous. Against such notice the petitioner filed a suit but the same was rejected under Order VII, Rule 11, C.P.C. It also transpires from the record that the petitioner alleges that he was illegally dispossessed from the demised premises while the respondents claim that the building was declared dangerous by the Government authorities. However, if, for the sake of arguments, it is presumed that the petitioner was entitled to be put into possession of such area in the new building as was in his possession in the old building or such smaller area on such rent as was to be determined by the Controller even then it is to be seen whether the petitioner fulfilled the pre-condition for such possession or not i.e, whether he filed an application fore the Controller for such purpose within time or not.
11. In this regard the learned Appellate Court has held as under:-- "Besides this, the Exh.O/7 exposes the admission of appellant/applicant that the old building was demolished and new building constructed about 3 years back. Section 15(4) of the Sindh Rented Premises Ordinance, 1979 pertains to the possession of the premises to the tenant after being evicted from the old building and such provision is reproduced as under:- ' And after reproducing the said section, the learned Appellate Court went on the hold as under:-- "Since new building has already been constructed years ago more specifically admission of the appellant/applicant that new building was constructed 3 years back from 10-2-2000, therefore, such provision of law also does not favour the appellant/applicant.
12. The learned Rent Controller further observed in his Order that the petitioner was allegedly dispossessed in the year 1993 whereas he moved an application before the Rent Controller at a belated stage in the year 2002 that too without bringing on record any cogent material to show that how at this belated stage he is entitled to be accommodated in the said newly erected building. It is also seen from the record that the learned Rent Controller has passed the impugned Order after examining each and every aspect, of the case and after examining all the relevant record and the material placed before him.
13. Similarly, the learned Rent Controller, in his Order dated 19-11-2007, referred to the admission of the petitioner in Suit No,1592/93 wherein the petitioner has admitted that the old building was demolished and new building has been constructed about 3 years back and has been occupied by various tenants.
14. A perusal of section 15(4) of the Ordinance would reveal that the Rent Controller has the authority under the law to pass an order directing the tenant to be put in such area of the new building as does not exceed the area in his possession in the old building. However, in this case the petitioner was in full knowledge that the old building was demolished and the new building was constructed in its place but he did not make any attempt immediately after construction of the new building to approach the Rent Controller and it was only after a lapse of considerable time that he approached the Controller with the prayer that he may be put in possession of appropriate area in the new building. This action clearly shows mala fide on the part of the petitioner and thus it is apparent that he has not approached the Court with clean hands. It is also admitted by the petitioner that the third floor of the building was occupied by the L.Rs, of late Saeed and that no premises is lying vacant as these were transferred in the names of the L.Rs, of late Saeed before the filing of the rent case.
15. So far as the question of illegal dispossession is concerned, it is clear from the record that the old building was got vacated in the year 1993 and it was demolished in the year 1994 as the same was declared as dangerous and was in a dilapidated condition. Hence, the petitioner was not dispossessed by the respondents Nos. 1 to 5. The two Courts below have dilated upon this aspect of the case and have referred to the correspondence made between the respondents and KBCA and have concluded that the petitioner was not dispossessed by the respondents Nos.1 to 5 rather the building, a portion whereof was under the occupation of the petitioner, was declared dangerous and, therefore, all the tenants/occupants were evicted therefrom.
16. Hence, in view of the specific findings recorded by the two Courts below, I have come to the conclusion that no case for interference with the impugned judgment/order passed by the two Courts below has been made out by the petitioner. Therefore, this constitutional petition, being bereft of merit, is hereby dismissed in limine together with the listed applications.