1. ' This appeal is directed against the eviction order dated 26-3-1989 passed by Ilnd Sr. Civil Judge & Rent Controller, Karachi (South) in Rent Case No,1383 of 1986 filed by the respondent against the appellant on the ground that the premises were required for re-construction of the building.
2. .1 have heard' the learned counsel Mr. AF.M. Mokarim for the appellant and Mr. A.R. Mirza for the respondent.
2. ' The learned counsel for the appellant has contended that the plan of construction of the building on the plot, wherein the appellant is one of the tenants, was *proved on 7-4-1980, whereby the respondent Was permitted to carry out construction on the said plot subject to certain conditions.
3. One of the said conditions is that the said approval is valid only if the construction work is started within one year from the date of the approval and thereafter it would be deemed to have lapsed and since the construction was not started within one year, the aforesaid' approval lapsed on 6-4- 1981. The Rent Case was filed by the respondent on 22-10-1986, on a date when the approval had already .Lapsed.
4. ' According to the learned counsel, on the date when the. Rent Case was filed the approved plan was not in existence and, therefore, the eviction on the basis of the said approval is not warranted by law.
5. ' In Hashwani Sales & Services v. Karachi Building Control Authority PLD 1986 Kar. 393 and Rais Ahmed v. Mian Abdul Jabbar PLD 1972 Lah. 711, it was held that for eviction of the tenant under section 15(2)(iv) or the Rented Premises Ordinance and section 13 of the repealed Ordinance, 1959, obtaining of sanction by the landlord is sine qua non before any application for eviction of a tenant can be filed by the landlord on the ground of reconstruction of the building, but mere expiry of the period for which such sanction remains valid, cannot defeat the proceedings. Initiated by the landlord for ejectment of the tenant. In the former case reliance was placed on the case of Rasheed Brothers, Faisalabad v. Chaudhry duhammad Anwar Khan and another 1981 SCMR 782.
6. ' The learned Advocate distinguishing the aforesaid two cases, contended that in those cases the eviction proceedings were commenced before lapse of the approved plan and referred to the case of Muhammad Usman v. Wali Muhammad and 4 others 1985 CLC 1669, wherein a learned Judge of this Court set aside the order of eviction for the reason that on the date on which the Rent Case was filed, the period, within which the construction was to be commenced, had expired and so also the approval of the plan and held as under:- "Whereas in the present case the condition precedent as embodied in clause (vi) of subsection (2) of section 15 has not been duly fulfilled in the eye of law, as there was no sanction of the plan subsisting in favour of the respondent on the date of filing ejectment applications ' The learned counsel for the respondent relied on Shaikh Abdul Aziz and 7 others v. Hassan Joo and 5 others 1981 SCMR 924 and an unreported judgment of the Supreme Court in Civil Petition No, 352- K/1990 Mrs. Dr. Zarina Doosani v. Abdul Mehdi.
7. ' In the first case tie Rent Case was filed after expiry of 6 years from the date of approvals of the building plan and the evictior was maintained.
8. ' However, it appears that the argument to the effect that the approved plan Cannot be made basis of eviction when the Rent Case is filed after expiry of the period within which construction was required to be commenced was repelled.
9. ' However, in the aforesaid unreported Supreme Court Judgment the contention was precisely raised in the following words- " Learned counsel for the petitioner rightly pointed out that the only question now left for examination is whether the sanction for reconstruction which was admittedly obtained by the respondent landlord, ensures for .The benefit of the landlord notwithstanding the fact that the original period for which it was granted, had expired."
10. Their Lordships did not accept the submissions that the tenant cannot be evicted in a case instituted after the approval had lapsed, with the observations that the, force of authority on the above question was against the petitioner/tenant.'
11. ' No exception, therefore, can be taken to the order of eviction passed against the appellant.
12. ' The learned counsel for the appellant contended that if the appellant is to' be evicted under section 15 (vi) of the Sindh Rented Premises Ordinance, 1979, then necessary observations may be made that the appellant is entitled to be restored the shops of the same size and at the same location. He has relied on Zoab and 5 others v. Akbar All 1983 SOAR 39.1 and Haji .Aurangzeb v. Haji Abdul Rahman PLD 1989 Pesh.
13. 195.
14. ' In the above Supreme Court case the provisions of section 13(5-A) of the West Pakistan Urban Rent Restriction Ordinance, 1959, which is pari materia, the provisions of subsection (4) of section 15 of the Sindh Rented Premises Ordinance, 1979, came up for consideration and after erudite discussion the Hon'ble Supreme Court agreed with the view expressed by the High Court that the tenant was entitled to a shop "exactly on the spot where the old shop vacated by him was situated". It is further observed as under:- "But the question of the quantum of the area to be given to the tenant is a matter within the discretion of the Rent Controller to be determined after taking into consideration the location and type of the building and the needs of the tenant."
15. ' In the case of Aurangzeb,(supra), a Division Bench of Peshawar High Court expressed the view that the tenant is to be .Put in possession of any area equal to what he was holding or even less than that if it would be suitable to.. Meet his requirements.
16. The appellant is tenant in respect of Shops Nos.7, 8, 9, .11 and 44 which have been converted into one shop. On the basis of the above authority, he will be entitled to be put in possession of the shop, situated'at the same location and in so far as the question of quantum of area of the shops is concerned, it shall. Be within the discretion of the Rent Controller and is to be determined after taking into consideration the location and, type of the new building and the needs of the appellant who is running a restaurant in the said shops.
17. ' The learned counsel for the respondent pointed out that 6 First Rent Appeals. And 2 Rent Cases are pending decision against other tenants in, the same building. He has also pointed out that the plans have been renewed by the Karachi Building Control Authority. He referred to the documents filed by him alongwith his application under section 21(3) of the Ordinance for additional evidence which was also fixed for, hearing alongwith appeal-The learned Advocate for the appellant did not oppose the application but, however, pointed out that the documents filed by the 'respondent pertain to deposit of the fees and acknowledgement of receipt of plan submitted for renewal. The said application is, therefore, allowed.. The documents filed by the respondent do not show that the plan has been renewed although it is established that the respondent had applied for the said purpose. Renewal of the plan after lapse of the period for commencement of the work is normally a formality. _' Since the cases against the other tenants are pending and the appellant is his business in the premises in question, it will be proper and equitable that the execution of the writ of possession against the appellant be postponed, till decision of the appeals pending in this Court. However, this order will not come in the way of the respondent to file the execution application against the appellant to save the same from getting barred by time.
18. ' The above are the reasons for the short order dated 27th April, 1992, whereby the above appeal was dismissed.
19. Appeal disthissed.