' On 7-1-1975 the respondent filed a petition for the eviction of the appellant from Shop No, BX-l5-S- 51, situated in Bazar Said Nagri, Gujranwala which is in occupation of the appellant on the monthly rent of Rs,
150. The petition for eviction proceeded on the ground of default in the payment of rent, bona fide need of reconstruction for which it was alleged that sanction had been procured from the Municipal Committee, Gujranwala. It was also stated that after the reconstruction the respondent needed one shop for the personal use of her husband. These grounds were contained in paragraphs 3, 4 and 5 of the petition. This petition for eviction was contested by the appellant. It was specifically contended that the respondent was the purchaser of the said shop from a previous owner to whom the appellant was paying Rs, 80 as monthly rent. After the purchase of the property the rent was increased by the respondent by the end of 1971 to Rs, 125 and the demand of the respondent for higher rent continued and in March 1978 it was enhanced to Rs,
150. The ground of default and the dilapidated condition of the shop was also denied. It was specifically stated the sole purpose of the respondent was to increase the rent and the shop was needed in good fa th for reconstruction. The need of the shop by the husband of the respondent was also denied. On the pleadings of the parties the learned Rent Controller, Gujranwala framed the following issues :- "(1) Whether the respondent is a wilful defaulter ?
(2) Whether the premises in dispute is required by the petitioner bona fide for reconstruction ?
(3) Whether the disputed property is required in good faith for the husband of the petitioner for his personal use ?
(4) Relief."
2. On Issue No, 1 it was found that the appellant had been paying the rent regularly. Under Issue No, 2 the learned Rent Controller found that the site plan (Exh. P/1) was sanctioned by the Municipal Committee, Gujranwala on 4-10-1971. According to the sanction the building should have been reconstructed within two years, i,e, up to 4-10-1973 and the application for eviction was not even filed during this period rather it was filed on 7-1-1975, i,e, after the expiry of four years of the date of sanction. The increase in the rent by the respondent had taken place during this period. Under Issue No, 3 it was held that there was no provision in West Pakistan Urban Rent Restriction Ordinance for getting the premises for the need of the husband. The respondent filed an appeal which was accepted by the learned Additional District Judge, Gujranwala vide his order dated 14- 6-1976 and the plea of default was not pressed. The learned Additional District Judge on Issue No, 2 observed that the respondent was only required to get the site plan sanctioned and it was not necessary for the respondent to make an application within the period mentioned in the sanction order. From this it was concluded that the site plan was still valid. It was further observed that in matters of reconstruction the condition of building is not relevant nor the bona fides. On Issue No, 3 it was held that the husband being a family member was entitled to take benefit under the W. P.
Rent Restriction Ordinance and the case was covered under the terms 'for his own occupation' which was to he liberally construed.
3. The learned counsel for the appellant has challenged this findings of the learned Additional District Judge on Issues Nos, 2 and 3. It was submitted that the points on which Issue No, 2 has been decided by the learned Rent Controller were not at all adverted to and the learned Additional District Judge had erred in law in holding that a business premises could be got vacated for the need of her husband by the respondent. There seems to be much force in the contentions raised by the learned counsel for the appellant.
4. I have given the findings of both the learned Rent Controller as well as the learned Additional District Judge in some details above. A perusal of the order of the learned Rent Controller will show that some important considerations had weighed by the learned Rent Controller in deciding that issue against the appellant. Muhammad Hassan Mahmood, Building Inspector, Municipal Committee, Gujranwala appeared as P. W. 1 to prove the site plan sanctioned as Exh. P./1. In the cross-examination he admitted that after the sanctioning of the site plan the building should have been constructed within two years. In the re-examination he clarified that as in the sanction letter the period specified w as 2 years, the building should have been constructed within this period.
Muhammad Sadiq (P. W. 2) deposed that the husband of the respondent was without any job on account of his differences with his brothers. It was further stated that the shop was in a very dilapidated condition and that the husband of the respondent required the shop for his personal need. To the same effect was the statement of Kh. Abdur Rashid (P. W. 3). Abdul Waheed Dar the husband of the respondent appeared as P. W. 4 and produced power of attorney on behalf of the respondent as Exh. P/2, and deposed about the dilapidated condition of the shop in question. He admitted that the site plan had been got sanctioned 4 years back and that the shop was to be reconstructed within two years. It was admitted that this period had not been extended and the explanation given by P. W. 4 was that there was no necessity to get the period extended. It may be pertinent to point out that the Building Inspector, Muhammad Hassan Mahmood (P. W. 1) had not been made to say so. P. W. 4 thereafter deposed about his disputes with his brothers for which he staled that the negotiations for compromise were in progress. The successive increase in the rent was admitted by this witness. The said witness stated that he needed the shop for his own use. The appellant also led evidence. Muhammad Aslam (R. W. 1) and Muhammad Yusuf (R. W. 2) stated that the respondent was a partner in the transport business with his brothers and had a regular source of income. It was also stated that the shop was perfectly in good condition and that the husband of the respondent No, 1 asked the appellant to increase the rent and he failed to do so.
The appellant appeared as R. W. 3 and supported his cast on the points stated in the written reply.
5. In respect of the bona fide need for reconstruction the following are the points which specifically go against the respondent.
"(i) The site plan was got sanctioned on 4-10-1971 and that the necessary period of 2 years expired in 1973 and the respondent did not apply for its extension
(ii) Even if the respondent was not liable to apply for the extension and the previous sanction was valid there is no explanation as to why the petition for eviction was filed after the expiry of four years ;
(iii) The respondent had admittedly got the rent increased from Rs, 80 which was being paid to the previous owner to Rs, 150 before the filing of the present petition. The contention of the appellant that the present petition had been filed only when he had refused to pay the enhanced rent to the respondent cannot be ruled out on account of her previous conduct.
(iv) After reconstruction the respondent is not prepared to give the shop to the appellant."
6. Under clause (vi) of subsection (ii) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 deals with the reconstruction and may be reproduced below : "(vi) The building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated."
' The words "reasonably and in good faith" were added by way of amendment in 1965 and as such the bona fides arc required to be looked into in the matters relating to the reconstruction also. The pure question of protection which has been considered by the learned Additional District Judge, Gujranwala would have been relevant in the case if respondent had made a statement that after the reconstruction she would give the shop to the appellant as required under subsection (5) of section 13 of the said Ordinance. In the present case this is not the position. The case of the respondent is that after reconstruction she would give the shop in question to her husband for his personal need.
7. The learned counsel for the respondent has argued that the plea of personal need and reconstruction are not mutually destructive and has relied on Khuda Bakhsh v. Muhammad Yusuf (1). This question is not at all relevant. The requirement of the respondent has not been proved to be in good faith and secondly, as shall be discussed presently the need of the husband does not fall under the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance.
Unfortunately the respondent is not prepared to give the shop in question after the reconstruction to the appellant. Had this been the position, the bona fides of the respondent would have been established and subsection (5) of section 13 and subsection (5-B) of the Rent Restriction Ordinance, could be attracted. Subsection (5-B) for the sake of convenience may be reproduced below:- "(5-B) Where, in pursuance of an order under clause (v) of subsection (2), landlord bad obtained possession of a building (In this subsection referred to as the old building), and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller, for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation, and the Controller shall make an order accordingly in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality".
(Underlining is mine).
8. The learned counsel for the respondent has argued that subsection (5-B) will automatically come into operation. I am afraid no such construction can he placed on this subsection in view of the portion which I have underlined. Before its occupation by any person here specifically means any other tenant and not the landlord or any other person for whose benefit the
(1) PLD 1976 Lah. 275 (Here in italicsl the shop is being got vacated. In the present case the plea of reconstruction and the personal need could not be separated and the counsel appearing for the respondent was not prepared to admit that the appellant shall be provided with area which he was in occupation after its reconstruction. The findings of the learned Additional District Judge on Issue No, 2 cannot be legally sustained.
9. The discussion on Issue No, 3 as to whether the respondent could get the shop for personal need after reconstruction for her husband shall not detain us long. The provisions of section 13 in respect of requirement of the non-residential building clearly provides as under :- "(ii) In the case of a non-residential building or a scheduled or rented land, if-
(a) he requires it in good faith for his own use or for the use for any of his male children ; (b)
' The contention of the learned counsel for the respondent that the use of the respondent could be extended beyond the scope of subsection (ii) of section 13 cannot be legally accepted. Husband is not one of the categories for whose benefit a non-residential building could be got vacated. The judgments on which the learned Additional District Judge has relied were not attracted to the facts of the present case. Those cases relate to the residential buildings where the landlord or the landlady requires the premises for his/her own use and occupation and had been permitted by the need of the ailing mother, brother or father but in none of the cases the landlord was not supposed to reside or occupy the premises. In this connection reference may be made to Adamali Hassanali v. Mst. Rubab Bai (1). This was a case where the landlady required the tenement in question for her own occupation and this requirement was stated by her to have been necessitated by illness of her husband for whom the tenement in question was considered as a more healthy place to live in.
In this connection it was held that the word 'needs' in relation to a residential. Building should not be restricted to individual and personal requirements of the landlord but includes those of his family as well.
10. The learned counsel for the respondent could not cite a single judgment where the eviction had been ordered for the personal need of the husband. Of the landlady. The position would have been different in case the respondent required the premises for doing her own business through some agent or servant but this is not the case here. In case the contention of the respondent is accepted it would amount to changing the law for which the Courts -do not have any power. The findings of the learned Additional District Judge on Issue No, 3 cannot also be upheld.
11. In view of the above discussion this appeal is accepted and the order of the learned Additional District Judge, Gujranwala dated 14-6-1976 is set aside and that of the learned Rent Controller, Gujranwala, dated 2-10-1975 is restored. The respondent shall bear the costs throughout.
(1) PLD 1967 Kar. 437 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.