' This appeal is directed against the order dated 23-8-1986 passed by the VIII Senior Civil Judge and Rent Controller, Karachi (South) ordering the eviction of the appellants from the premises consisting of shop and a store-room attached thereto, situated on a Plot No, S.B.1/4, Preedy Street (Opposite Empress Market), Saddar, Karachi in a Rent Case No,1808 of 1982, Sharfuddin v. Anwer Ali and others.
2. Briefly stated the facts which lead to this appeal are that respondent late Sharfuddin filed Rent Case No,1808/82 against appellants under section 15 of the Sindh Rented Premises Ordinance, 1979, stating therein: that he is owner of Shop No,2 situated over Plot No,4, S.B.1, Empress Market near Sartaj Hotel, Saddar, Karachi, while the opponents/appellants are tenant in Shop No,2 at the rate of Rs,150 per month but the opponents have also unauthorisedly occupied a godown behind the said shop. He stated that he wants to demolish and reconstruct a building on a new line as the present structure is old and uneconomical; and that he has obtained a Site Plan approved from Karachi Building Control Authority on 25-11-1981. He further stated that the construction work has already been started but in spite of promise the opponents have not vacated the shop in question, due to which the work is suffering. Hence this case.
3. That the appellants/opponents filed written-statement challanging the maintainability of the application on one hand and on the other hand admitting the tenancy. The appellants denied that they have ever unauthorisedly occupied the store-room behind the shop but they asserted that since the time of their predecessor Sharfuddin the shop and the godown are one unit and in occupation as tenants in the said premises. They disputed the bona fide of the respondents/landlords regarding demolition and reconstruction of a new building. They also challenged the validity of the approval of Site-Plan due to non-execution of agreement by the landlord with the tenants before its approval as per decision of the Building Control Authority, Karachi. In the end it was asserted that they are being ejected by their landlord so that they may sell away the said plot with vacant possession, at an exorbitant price. They claimed that they are entitled to alternate accommodation and/or to a premises in the new building.
3. That in support of his case landlord Sharfuddin filed his own affidavit-in-evidence and produced copy of sanction and an approved building plan; while the tenant Anwer Ali filed his affidavit-in- evidence and produced a copy of Issues in Suit No,762/81, Walijee Nathu and Sons v. Sharfuddin, and a letter from Karachi Building Control Authority, withdrawing approval of building plan of Sharfuddin.
4. That the learned Rent Controller after determining following points in favour of the respondent/applicant passed the impugned order, against which this appeal is filed:-
(1) Whether the application is maintainable?
(2) Whether the applicant has obtained sanction for reconstruction from the competent authority?
(3) What should the order be?
5. I have heard learned advocates for both the parties and with their assistance have examined the record. Mr. H.A. Rehmani learned advocate for the appellant argued that the Rent Controller has wrongly decided point No,(1). He contended that since the applicant/respondent alleged that the appellants have unauthorisedly occupied the store-room attached with the shop, the Rent Application was not maintainable. In reply to this point Mr. Munawar Malik Advocate for the applicant/respondent referred the Written-Statement filed by the appellants in the Rent Case, in which they admitted the tenancy and asserted that their predecessor was in occupation of the shop and the godown behind the shop as tenant of the previous landlord and after the death of original tenant they are in occupation of the same premises and they have not occupied any portion of the plot. I have applied my mind and also noticed that in cross-examination Sharfuddin admitted that about 6-7 years ago the opponents had occupied the said godown unauthorisedly but it is very strange that he did not take any legal action against them, which proves that Sharfuddin has wrongly and falsely asserted the occupation of godown unauthorisedly. In case the opponent would have also admitted the said position, I am of the view that the Rent Case would not have been maintainable to the extent of the said godown, but since the opponent/appellant denied the said position, the Rent Case is maintainable in view of the admission of the opponent regarding tenancy of the entire premises as one unit. I am therefore of the view that the application is maintainable, as such the finding of the Rent Controller does not call for any interference.
6. As regards point No, (2) Mr. H.A. Rehmani argued that since the approval of the site plan has been withdrawn, the appellants cannot be ejected from the premises in question due to non- execution of agreement by the landlord with the tenant before its approval. In reply Mr. Munawar Malik argued that the withdrawal of the approval of plan has already been declared as illegal by this Hon'ble High Court in C.P. No, D-116 of 1984 and he has also placed a copy of the judgment on the record of this appeal. In view of the above position the objection raised by the appellants has no legal footings. Since the plan is already got approved and the work has also been started at the site, there can be no doubt in the bona fide of the landlord in erecting new building in place of the old one. As such the finding of the Rent Controller is maintained.
7. In view of the above discussion the appeal fails and it is dismissed with no order as to costs. The appellants are given two months' time to vacate the premises in question and to put the respondents in vacant possession of the same subject to the payment of rent. In case the appellants fail to vacate the premises within the said stipulated time, they shall be ejected by the Rent Controller without any notice to them. It is made clear that the appellants shall be entitled to have the shop from the respondents, after the proposed building is erected and if the premises are not demolished within six months of the receipt of possession or if the erection of the new building is not commenced within two years of taking over the possession of the premises, the appellants shall be entitled to be put into possession of the disputed premises.