1. ' ABDUL QADEER CHAUDHRY , ACTG. C .J.--A residential Flat No,12 on Plot No,SB-6/32/1, situated on Shahrah-e-Iraq, Artillery Maidan, Karachi was requisitioned in the year 1950 by the respondent No,1 for the use of Government servants. This flat was allotted to one Mr. Akhtar Ali Baig who was then working as U.D.C. In Import Inspection, Medical Department Government of West Pakistan, and he occupied the flat. It is the case of the petitioners that said Akhtar Ali Baig remained in occupation of the said flat till 1956 when he left the same after delivering the possession of this flat to one Mirza Ali Mazhar Baig, respondent No,3 who is not a Government servant; and, as the flat is no more in use or occupation of a Government servant, therefore, the petitioner as an owner thereof became entitled to the derequisitioning thereof and delivery of vacant possession. The order, dated 20-8-1979 passed by this Court shows that the respondent No,3 was not a necessary party and was no more living in the house. The application for deleting the name of the respondent No,3 was allowed. The respondent No,3 has moved an application under Order I, Rule 10(2) for impleading him as respondent in the petition. In the application it is stated that he is in occupation of the flat in question as a tenant since January, 1965, Haji Abdul Fareed Musa was the landlord and after his death the petitioners who are widow, sons and daughters of the deceased are the landlord. He has been regularly paying rent as per instructions of landlord by money order from January, 1965 to the end of 1975 and as the landlord wanted to increase the land, he made an application before the Rent Controller in order- to seek permission and after obtaining permission he had been regularly depositing rent and had deposited rent upto December, 1985.
2. ' The application was contested. However, the Court vide its order, dated 23-4-1986 allowed the application and it was observed that the presence of the intervenor is necessary for the proper decision of the petition.
2. Learned counsel for the petitioner has referred to the order, dated 28-11-1985 which reads as under:- "The Flat bearing No,12 on First Floor of building known as 'Castle-De-Farid' on Plot No,SB, 6/32/1, situated on Shara-e-Iraq, Artillery Maidan, Karachi was requisitioned under Requisition Order No,934/1950, and was allotted to and occupied by one Akhtar Ali Baig who was then working as U.D.C. In Import Inspection, Medical- Department, Government of West Pakistan. The petitioner has alleged that Akhtar Ali Baig has left the premises and the flat still continues in the possession of respondent No,1, who in spite of representation, has not derequisitioned and delivered possession to the petitioner. The Estate Officer, present 'in person, states, that he will deliver the possession of the disputed flat to the petitioner within two weeks. The respondent No,1 is, therefore, in view of this statement directed to hand over vacant possession of the disputed flat to the petitioner within two weeks.
3. ' As regards payment of compensation- for use and occupation of the flat the respondent No,1 has stated, that he will examine the position and within two weeks submit a report to this Court stating the modalities for payment and the amount of compensation, which may be paid to the petitioner.
4. ' For examining this aspect of the case and receiving the report of the respondent No,1 on point of compensation, the hearing is adjourned to 16-12-1985."
5. ' The learned counsel contents that as the petition has been disposed of, therefore, only the compensation is to be determined by this Court. This contention has no force because respondent No,3 has been impleaded by the order of the Court and thereafter amended petition has been filed by the petitioners. It is contended by the learned counsel for the petitioners that under West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 the requisition could only be made for the use and occupation of any of the officers of the Government and as Mr. Akhtar Ali Baig has left the flat in 1956, therefore, the Government was bound to derequisition the flat in question and deliver the vacant possession of the same to the petitioner.
6. ' The learned Additional Advocate-General has stated that as per conduct of the parties it is clear that the flat had been derequisitioned as the petitioners had entered into an agreement with the respondent No,3 and the respondent No,3 is regularly paying the rent to thepetitioners. In paragraph 9 of the affidavit the petitioners have admitted the sending of the money orders and their receipts but it is stated that the same were accepted under the honest and bona fide belief that the said remittances were sent by the applicant on behalf and under the instructions of the Estate Office. The learned counsel was asked by the Court whether he can produce any document to show that when the flat was in occupation of Mirza Ali Mazhar Baig the rent was received by him from said occupant on behalf of Estate Office? In fact when a premises is requisitioned by the Government under the aforesaid Act then the rent is to be paid by the Estate Office on behalf of the Government. The learned counsel failed to show any document. On 16-7-1977 the counsel for the petitioner has sent a letter to the Estate Officer that Ali Akhtar Baig remained in occupation of this flat till about 1956 and then he left the same after passing on possession thereof to one Mirza Ali Mazhar Baig, who continues to still remain in occupation of this flat. The Additional Commissioner endorsed this letter to the Deputy Secretary (Property Management)-cum-Estate Officer for taking necessary action. In 1965 the predecessor-in interest of the petitioners submitted an application to the Commissioner that the flat A may be derequisitioned and he is prepared to accept the present occupation Mr. M. Ali Mazhar Baig as his direct tenant in case the flat is derequisitioned. It is further stated in the letter that he has received full rent from Mr. M. Ali Mazhar Baig upto date and nothing is outstanding against him. This request was not acceded to by the Commissioner. The admitted position is that after 1956 the petitioner was regularly receiving the rent according to his own admission from Akhtar Ali Baig. When the petitioners have themselves admitted Ali Mazhar Baig to be their tenant then the present petition is not maintainable because then the relationship of the parties will be determined under the Sind Rented Premises Ordinance. The relief which the petitioners have claimed in this petition cannot be granted in view of the aforesaid facts.
7. ' The petition is dismissed without any order as to costs.