' This appeal is directed against the order dated 16-1-1994 passed by Vth Senior Civil Judge and Rent Controller, Karachi (South) in Rent Case No,1096/85 (Old No,6482/80) rejecting the prayer of the appellant/tenant, for determining the location of the rented shop handed over by him to the respondent/landlord under compromise in FRA. No,283/89 before restoration of the possession of the same to him in execution of Writ of Possession. Briefly stated the facts which lead to this appeal are as under:--
1. The appellant was tenant of the respondent in shop No,1, Azad Green House, House No,21-A, Mehmoodabad, Karachi at a monthly rent of Rs,100 p.m. The respondent filed above rent case against the appellant on the ground of demolition of the old construction and raising new construction in its place. The Rent Controller vide its order dated. 1-3-1989 ordered the ejectment of the appellant against which he filed FRA No,283 of 1989, which ended into compromise on the following terms:-
(a) That the appellant shall pay rent at the rate of Rs,700 p.m. From 1-2-1992.
(b) That the respondent intends to raise multi-storeyed building on the premises and for this purpose the appellant shall be called upon as and when the plan is approved by the relevant authorities, to vacate the shop temporarily for construction purposes.
(c) That the appellant shall vacate the shop within 30 days from the date of notice and shall hand over temporary possession to the respondent for construction purposes.
(d) That the respondent shall hand over the constructed shop of same dimension back to the appellant within the period of 6 to 8 months from the date of handing over possession to the respondent. In case the respondent fails to re-deliver the possession to the appellant within the period mentioned above the respondent shall pay damages at the rate of Rs,500 p.m. To the appellant, till the possession is restored to the appellant.
(e) That during the period the possession of the shop remains with the respondent for construction purposes, the appellant shall not be liable to pay the monthly rent.
(f ) That in case the respondent fails to deliver the possession back to the appellant within one and half year of the vacation by the appellant, the appellant may apply to the Court for restoration of its possession and the respondent shall also be liable to pay damages.
2. That the appellant vacated the shop and put the respondent in vacant possession of the same, who raised multistoreyed building but he failed to restore the possession of the shop of the same dimension, to the appellant, as such the appellant moved application for restoration of the possession of the shop on 1-2-1993 upon which the Rent Controller issued Writ of Possession, against which the respondent filed FRA No,260 of 1993 in High Court of Sindh, in which Mr. Umer Farooq Khan, Advocate was appointed arbitrator, who submitted his report and vide order dated 14-9-1993 passed by this Court dismissed the said appeal.
3. That thereafter on 2-10-1993 the appellant made application under section 151, C.P.C. For determining the actual location of Shop No,1 in the Trial Court which resulted in dismissal. The appellant again made application under section 22 of Sindh Rented Premises Ordinance, 1979 on 27-11-1993 for recalling the Order dated 14-11-1993 but the same was also dismissed on 27-11-1993.
Hence this appeal.
4. I have heard Mr. Mubarak Ahmed, Advocate for the appellant, and none for the respondent, who chooses to remain absent, though served.
5. The main contention of Mr. Mubarak Ahmed, Advocate is that as per compromise in FRA No,283 of 1989, the appellant is entitled to the restoration of shop of the same dimension and location which existed before its new construction, for which the determination of its location and dimension is very necessary as the respondent has refused to deliver the same. The learned Rent Controller has wrongly rejected the said prayer of the appellant, on the simple ground that since the Honourable High Court in its Order dated 14-9-1993 passed in FRA No,260/93 has not given such direction, he cannot do so.
6. I have applied my mind to the novel circumstances of the case. In this case the landlord obtained the possession of the shop from the tenant/appellant on the plea of re-construction and with the clear undertaking to put the appellant back in possession of the shop after its re- construction but the record shows that the respondent has backed out from the above compromise and does not want to put the appellant in possession of the shop of the same dimension and location, which act of the respondent/landlord cannot be appreciated under any circumstances. It is pertinent to note that the appellant, under law is entitled to immediate restoration of the possession of the shop as provided under section 15-A of Sindh Rented Premises Ordinance, 1979. The record also reveals that the respondent instead of putting the appellant in possession of the shop of the same location and dimension, wants to give another space which is not acceptable to the appellant. In my view he is very right in doing so. It also transpired, from the record that the respondent/landlord has constructed four shops on the road side though in the approved plan there were only three shops on that side.
7. For putting the appellant in possession of the shop of the same location and dimension, it will be just and proper, if the Rent Controller determines the location and dimension of the shop which was taken from the appellant by the respondent for the purpose of reconstruction of the multi- storeyed building; and without determining the same the appellant cannot be put in possession of the same, in execution of the Writ of Possession. The Rent Controller while passing the impugned orders has failed to consider that the Courts are established to solve the problems of the public and not to create problems for them. In order to give full effect to the compromise between the parties, it was necessary and essential to grant the prayer of the appellant made in the application for determining the dimension and location of his shop.
8. In view of the above circumstances, the appeal is allowed with no order as to costs and the impugned order is set aside and the learned Rent Controller is directed to determine the location and dimension of the shop which was taken by the respondent from him before construction of the building and also to put him in vacant possession of the shop of the same dimension and location in the new building. The parties be afforded chance to lead their evidence on the said point. It is also made clear that the appellant shall also be entitled to damages at the rate of Rs,500 p.m. Till he is put in possession of the shop as agreed in the compromise referred above from the day possession was handed over to landlord by tenant. The Rent Controller is further directed that since it is an old matter and the appellant is being deprived of the fruits of the orders of this Court as such special preference be given to it, by proceedirig the matter day-to-day and report compliance to this Court within 2 (two) months. In view of this judgment, application under section 151, C.P.C. (C.M.A. No,208/94) in F.R.A. No,260 of 1993 is also disposed of.