' This is a First Rent Appeal filed by the appellant/tenant. Ejectment Case No,2469 of 1976 was filed by 4 respondents claiming to be the landlord/owners of the building in which Shop No, 6 in dispute is located. This building is located opposite the City Courts, Karachi. Ejectment of the respondent, who is a tenant in respect of Shop No,6 in question, was sought on the grounds of default and reconstruction. No period was mentioned in the ejectment application, for which rent had not been paid by the appellant. Further in the affidavit-in-evidence, dated 22nd December,1979 of Asghar Ali, respondent No,1, no grievance was made about non-payment of rent. The only point on which evidence was led was the ground of reconstruction. Para. 3 of the ejectment application is the only paragraph which relates to this ground and it reads as follows:- "That the applicants desire to reconstruct the aforesaid building and have got the plan approved by the Competent Authority for that purpose. ' A photostat copy of letter of approval granted by the authority is annexed hereto and marked as 'A'."
' In the written statement the adverse allegations made in the ejectment application were denied by the appellant. In paragraph 3 of the written statement, para. 3 of the ejectment application was denied. It was denied that the respondents desired to reconstruct the building. It was further averred that this plan of reconstruction was mala fide and based on ulterior design. It was denied that the respondent had honestly got the plan approved for the purpose of reconstruction. After recording evidence, the learned Rent Controller by his impugned order, dated 31st August,1980, allowed the ejectment application on the ground of reconstruction and ordered the ejectment of the appellant. Being aggrieved, the appellant/ tenant has filed this First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979. I have heard Mr. N. A. Farooqi, learned counsel for the appellant and Mr. Ibrahim Pishori, learned counsel for the respondents.
2. On the point whether the instant ejectment case, which had been filed on 28th May,1976 under the provisions of the 1959 Rent Ordinance, has to be decided under the provisions of the repealed 1959 Rent Ordinance or the provisions of the Sind Rented Premises Ordinance, 1979, both the learned counsel stated that this case has to be decided under the provisions of the repealed 1959 Rent Ordinance. I am also of the view that as the ejectment case had been filed at a time when 1959 Rent Ordinance was in force, the rights of the parties are those that are conferred upon the parties by the 1959 Rent Ordinance. I may in this context refer to a decision of a Division Bench of this Court in the case of Abdul Rehman v. Ahmed Khan PLD 1982 Kar. 532 that has been upheld by the Supreme Court in their judgment reported in PLD 1983 SC 21.
3. In this case a plan for construction of a new building had been approved by the concerned authority and a copy of the said plan had been produced in his evidence by the respondent No,1.
According to Mr.Ibrahim Pishori, learned counsel for the respondents, an approved plan had been produced and the intention of the landlords to reconstruction a building in accordance with the approved plan had been established by the evidence adduced on behalf of the respondents.
Learned counsel for the respondents referred me to the evidence of respondent No,1 where he has stated that the respondents had funds to construct a new building on the plot in question that 75 per cent of the building had already been vacated and was in occupation of the respondents and that the respondents were willing to accommodate the appellant in the new building.
' It is an admitted position that the building in question is a commercial building and the premises in dispute is a shop in which commercial activities is carried on by the appellant. Respondent No,1 was present in Court on one of the dates of hearing of this appeal and on a question from the Court, Mr.Lbrahim Pishori, learned counsel for the respondent, after taking instructions from the respondent No,1, informed that the building which will be constructed on the plot in question, after demolition of the existing building will be a commercial building and various premises in the new building will be used and/or rented out and/or disposed of as commercial premises. Copy of the approved plan which had been produced in the evidence on behalf of the respondents before the Rent Controller was perused by me with the assistance of the two learned counsel. It was found that the approved plan is for construction of a residential building and not a commercial building.
The plan does not show that the new building will have shops and offices but shows residential premises for example bedrooms, kitchens and bath-rooms etc. In fact learned counsel for the respondents had to concede that the approved plan was for the construction. Of a residential building and not a commercial or nonresidential building.
4. As already observed this ejectment case has to be decided on the basis of the provisions of the repealed 1959 Rent Ordinance. Section 13(5-B) of the 1959 Rent 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 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)."
The ejectment application for ejectment of the appellant on the ground of reconstruction was filed by the respondents under section 13(2) (vi) of the 1959 Rent Ordinance. The benefit of section 13(5- B) was therefore available to the appellant and he was entitled to get smaller accommodation in the new building in terms of section 13(5-B). Admittedly the premises in question is a shop located in a commercial building and the premises had been rented out as a shop. To give the appellant/tenant the benefit of similar accommodation in the new building it was necessary that the new building should also have shops so that the premises in the new building that are provided to him after the construction of the new building are similar in nature to the premises which the tenant was occupying before his ejectment. However, this could not be done in the present case as the approved plan is of a residential building and in a residential building no shop can be provided to the appellant. If the respondents wanted to eject the appellant, who is a tenant of a shop, on the ground of reconstruction, the plan that should have been got approved by the respondents should have been a plan in which there were provisions for shops also so that after reconstruction a shop could have been provided to the appellant in terms of section 13(5-B) of the 1959 Rent Ordinance.
5. In my view the application of the respondents was liable to be dismissed as instead of getting plan approved for a commercial building or at least obtaining approval of a plan which had provision for construction of shops also, the respondents got a plan approved for construction of a residential building. First Rent Appeal No,716/80 is therefore allowed, the impugned order dated 31st August,1980 is set aside and the ejectment application filed by the respondents is dismissed.
' There will be no order as to costs.