' This appeal was dismissed in limine by short order, dated 16th August, 1983, for reasons to be recorded separately. Following are the reasons for the said order.
2. The appellant was a tenant occupying whole of the first floor of the building No, 3, Sheet No, S.B-5, Sir Abdullah Haroon Road, Karachi known as "Gulshan-e-Nusrat" belonging to the respondents. He had however been ordered to be ejected from the said premises on the ground of demolition and reconstruction in the Rent Case No, 104 of 1971. The first appeal No, 593 of 1975 against the order of the Rent Controller did not succeed, and so the Second Appeal No, 416 of 1976 filed in the High Court. It was however directed by the High Court that the appellant shall vacate the premises whereafter the respondent/landlord shall demolish the building within one month from the actual eviction of the tenant and construct a new building and provide equal accommodation to the tenant in the newly constructed building. The appellant's appeal in the Supreme Court also met the same fate vide order of the Supreme Court, dated 19th May, 1980.
3. Having failed in his efforts to retain the disputed premises, the appellant vacated the same as per directions of the High Court. However since the respondents made no compliance of the High Court's order in-as much as that neither the existing building was demolished nor new construction was started within the specified time, the appellant instituted fresh proceedings No, 1302/1982 in the Court of Civil Judge and Rent Controller, Karachi making therein the following prayers : "It is, therefore, respectfully prayed that this Hon'ble Court will be pleased to order-
(a) that the respondent shall complete the proposed reconstruction before the 30th of October, 1982 that is, within two years on 29th October, 1980 when the applicant (owner of) the building, as required under section 15 (3) and (had to) deliver to the applicant, possession in the reconstructed building, of an area equal to that held by him in the First Floor of the demolished building by the said date ;
(b) that the respondent shall forthwith pay to the applicant the compensation provided for under section 17 ; and
(r) such penal action against the respondent, as this Hon'ble Court may deem fit under the circumstances of the case, for breach of the order of the Court to demolish the building within a period of one month of the vacation thereof by the applicant, as well as of the contravention of section 15(3) requiring him to demolish the building within a period of six months of the date aforesaid and for having failed to start reconstruction which is to be commenced within a period of two years of the date aforesaid."
4. The respondents resisted the case filed by the appellant, denying the allegations of non- compliance of the High Court's order or breach of the statutory provisions. The plea taken by them was that the portion of the building in dispute which was vacated by the appellant had already been demolished, but the work of construction could not be undertaken, as the cases of other tenants of the disputed building are pending either in the High Court or in the lower Court and in some Cist pending the Courts stay has been 8rante.
5. The learned Rent Controller after due consideration of the material placed before him dismissed the appellant's application by the impugned order, dated 31st March, 1983. Dissatisfied with this order, the appellant has preferred this appeal.
6. Mr. Muhammad Ahmed learned counsel for the appellant was heard in support of the appeal.
The learned counsel contended that the respondents have not complied with the High Court's order in as-much as that the building had to be demolished within one month of the actual eviction of the appellant. He further submitted that in violation of the statutory provision, the respondents have also failed to undertake reconstruction of a new building within six months period. According to the learned counsel for the appellant the respondents have not even obtained the sanction of the competent authority for reconstruction of the new building. He refuted the respondent's plea that the cases of other tenants are pending in the High Court and the lower Court or that in some of such cases stay orders have been issued.
7. It may be pointed out at the outset that the application of the kind filed by the appellant in the Court of the Rent Controller does not appear to be maintainable. The learned counsel for the appellant was not able to point out any provision of the Sind Rented Premises Ordinance (hereinafter referred to as the Ordinance), under which the application fell. However in this connection reference may be made to subsection (3) of section 15 of the Ordinance which reads as under : " 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 the erection of the new building within two years of the taking over of 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 the premises."
8. It would appear from the above provision, that building is to be demolished within six months of the taking over the possession thereof and new structure is to be raised within two years of vacating of the old building. It is further clear from the above provision that in the event of its non- compliance the only relief the tenant can seek is to apply for being put into possession of the premises again. It seems he has not' prayed for such relief. The reliefs claimed by him are clearly beyond A the scope of the Ordinance and as such his application filed in the lower Court could have been dismissed even on the above ground of its non-maintainability.
9. As for the High Court's direction relating to demolishing of the building, the impugned order shows that the appellant's own attorney Haji Abdul Sattar who filed his affidavit in support of the appellant's case in the lower Court has admitted in cross-examination that the doctor's (appellant's) office and clinic in the disputed premises have already been demolished. Thus it is proved from the mouth of the appellant's own man that the order of the High Court relating to demolishing has been complied with at least in respect of the portion of the building vacated by him.
10. So far reconstruction of new building is concerned the respondent's case is that it could not be undertaken unless other tenants also occupying the building have vacated the same. It is further stated by the respondents that since the cases of other tenants are pending either in the High Court or in the lower Court and in some of these cases stay has been granted, it is beyond the control of the respondents to start reconstruction of the new building. In this connection also the learned Rent Controller has referred to the admission of the appellant's attorney Haji Abdul Sattar, inasmuch as that there are other tenements also in the building.
' Fakir Muhammad, Rent Controller and attorney of the respondents who was examined in the lower Court in support of the respondent's case has stated in his evidence that the work of reconstruction could not be started because some of the tenants of the disputed building have obtained stay order from the High Court and the cases of some others are still pending in the Court of Rent Controller. He has further stated that the respondents themselves are very keen to start reconstruction as otherwise costs of the construction will keep rising every day. But the delay being made in the reconstruction, according to him, is beyond the control of the respondents. Although the appellant's attorney has denied knowledge of pendency of the cases of other tenants in the High Court and lower Courts, yet he has not refuted the respondent's plea to this effect.
Keeping the above circumstances in view it is clearly beyond the control of the respondent to start reconstruction. Accordingly they are not to blame if the reconstruction has not been undertaken.
Even otherwise the default made by the respondents will at the most entitle the appellant to be put into possession of the disputed premises. But on one hand he has made no such prayer and on the other hand, in view of the portion of the building in occupation of the appellant having already been dismantled, it is not practicable to claim such relief. Accordingly the appellant's application was rightly dismissed by the lower Court and consequently this appeal is without merit and was dismissed in limine as stated above.