' AJMAL, MIAN, J.--(a) The petitioner through this petition has prayed for the following reliefs:-
(1) A writ of certiorrari or writ of mandamus or writ of quo warranto may be issued against respondent No. 1 and this Hon'ble Court may be further pleased to declare the order eviction passed by the respondent No. 1 and thereby evicting the petitioner from the shop No. 1 constructed on plot No. 317-318, situated at Commercial Area, P.E.C.H.S. Karachi, as illegal, without lawful authority and without jurisdiction.
(2) This Hon'ble Court may be pleased to direct the respondent No.1 to restore the peaceful possession of shop No. 1 constructed on 317/318 situated at Commercial Area, P.E.C.H.S. Karachi to the petitioner.
(3) Award of the petition.
(4) Any other relief this Hon'ble Court deem fit and proper in the circumstances of the case.
' The brief facts leading to the filing of the above petition are that the petitioner is a tenant in respect of shop No. 1 in the Building as Malka Mansion at the rate of Rs. 176 per month. It seems that respondent No. 5 the landlady, filed an application on 25-11-1980 before the President and Chief Martial Law Administrator for seeking the ejectment of the petitioner on the ground that she was a poor lady and that the petitioner was not paying rent. The above application was forwarded to the Martial Law authorities at Karachi. In response to which, respondent No. 1 passed order dated 16-7- 1981 for the eviction from the shop allegedly in unauthorised occupation of one Shafi Khan, in pursuance of which the petitioner was ejected from the shop. The petitioner, therefore, had filed the above petition on 14-9-1981. It may be stated that prior to the present petition, the petitioner had filed a suit for permanent injunction for restraining respondent No. 5 from ejecting the petitioner from the shop without having recourse to law.
(b) A pre-admission notice was issued to the learned Advocate-General Sind, in response of which Mr. Sattar A. Shaikh learned Additional Advocate-General appeared before a Division Bench of this Court on 9-11-1981 and made the following statement:- "The contents of the petition filed by Mst. Malka Begum and the Constitutional Petition No. D-865 of 1981 filed by Khan Muhammad have been examined. Mst. Malka Begum widow filed a petition before President/Chief Martial Law Administrator which was referred to Headquarters Deputy Martial Law Administrator, Sector-1, Karachi for disposal in routine. The orders for ejectment from the shop were issued inadvertently to help a poor widow and not with any mala fide intention. The contention that Shall Khan is a partner/servant of the petitioner was also not brought in the notice of the officer concerned when called at DMLA Section-1. However, the officer concerned have been advised not to entertain such cases in future. The case may be decided by the Hon'ble Court on merits basing on facts and law. A photostat copy of the application filed before Martial Law Authorities by Mst. Malka Begum is also enclosed herewith as desired."
2. In view of the above statement Mr. Sattar A. Shaikh, learned A.A.-G. states that the impugned order passed by respondent No. 1 is no longer in the field and this Court may pass any appropriate order which may be just and proper in the circumstances of the present case 3.(a) We have gone through the record and find that factually the petitioner was the tenant of the shop and Shafi Muhammad was his employee as is reflected in the petitioner's application dated 4th June, 1981 addressed to the Chief Martial Law Administrator, in which inter alia it has been stated that his employee Mr. Shafi has been ordered to vacate the shop. The factum that the petitioner had sublet the shop to said Shafi is not even mentioned by respondent No. 5 in her aforesaid application filed before the President and Chief Martial Law Administrator for seeking the ejectment of the petitioner. It is, therefore apparent that the petitioner was ejected from the shop without having recourse to law and therefore is entitled to the restoration of the possession.
(b) Since respondent No. 5 is a widow, we inquired from the learned counsel for the petitioner as to whether his client would agree to the increase of the rent, Mr. Raja Sikandar Khan Yasir learned counsel for the petitioner, after consulting the petitioner who is present in Court, stated that his client would pay rent at the rate of Rs.500 per month from 1st February, 1985.
(c) It may also be stated that according to the learned counsel for respondent No. 5 in fact the petitioner is still in possession of the shop which averment has been denied by the learned counsel for the petitioner. Be that as it may, we allow the petition and declare that the ejectment of the petitioner from the shop was without lawful authority and of no legal effect. We order the restoration of the possession of the shop. Mr. Shakil Lari, learned counsel for the respondent No. 5 states that the client would have no objection if the petitioner may occupy the shop without any formal handing over of the possession by his client. We, therefore, clarify that the petitioner may go and occupy the shop immediately henceforth without waiting for any formal delivery of the possession subject to the condition that the petitioner shall be liable to pay rent at the rate of Rs.500 per month with effect from 1st, February, 1985. However, there will be no order as to costs.
Petitioner's ejectment restored.