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Petitioner: BEGUM LAILA SARFARAZ VS Respondent: NOOR MUHAMMAD
1988 S C M R 396
1988 S C M R 396
Present: S.A.Nusrat and Zaffar Hussain Mirza, JJ
BEGUM LAILA SARFARAZ--Petitioner
versus
NOOR MUHAMMAD--Respondent
Civil Petition No.56-K of 1987, decided on 27th April, 1987.
(On appeal from the judgment and order of the High Court of Sind at Karachi dated 1-1-1987 passed in First Rent Appeals Nos. 802, 803 and 804/1986).
Sind Rented Premises Ordinance (XVII of 1979)--
---Ss.15(3) & 21--Constitution of Pakistan (1973) Art. 185(3)--Ejectment on ground of reconstruction--Tenant occupying residential flat on ground floor--Eviction ordered with direction that a residential flat on first floor of building would be provided by landlord to tenant- Order modified in appeal with direction that tenant shall be provided with a shop on ground floor as well--.Leave to appeal granted to consider contention that Rent Controller and High Court had no power to simultaneously pass an order envisaged under S.15(3) of Ordinance (XVII of 1979) while passing order of ejectment and that direction that the tenant was also entitled to a shop was against finding of fact recorded by Rent Controller; which was to the effect that the tenant had failed to prove that he was allowed to use the house as a shop as well by the landlord's mother and that the tenant was carrying on business on a projected portion on the municipal land.
Aftab Alam, Advocate Supreme Court instructed by Faizanul Haq, Advocate-on-Record for Petitioner.
Khalilur Rehman, Advocate-on-Record for Respondent.
Date of hearing: 27th April, 1987.
ORDER
S.A.NUSRAT, J.--The petitioner applied for ejectment of the respondent from residential flat No.1, situated on the ground floor of the building on the ground of reconstruction. It was alleged by the respondent in his written statement that lady Nusrat Haroon, the mother and guardian of the petitioner, had allowed him to use the premises as a shop. The dispute as to whether the rented premises was a house or shop was decided against the respondent and the ejectment application was allowed as per order dated 4-9-1986 by the Rent Controller with the direction that the petitioner will start the work of reconstruction in accordance with law and a residential flat on the first floor of the building will be provided to the respondent. This order was challenged by the respondent in appeal before the Sind High Court which was dismissed as per impugned judgment with the modification that the "respondent shall be provided with a shop on the ground floor as well, in addition to the residential flat on the first floor".
2. It was contended by the learned counsel for the petitioner that the Rent Controller and the High Court had no power to simultaneously pass an order envisaged under section 15 (3) of the Sind Rented Premises Ordinance, 1979 while passing the order of ejectment. It was further contended that the direction that the respondent was also entitled to a shop was against the finding of fact recorded by the Rent Controller; which was to the effect that the respondent had failed to prove that he was allowed to use the house as a shop as well by the petitioner's mother and that the respondent was carrying on business on a projected portion on the municipal land.
The above contentions require examination. Leave to appeal is accordingly granted. Security Rs.1,000.
M.I./L-19/S Leave granted.