' The dispute relates to Shops Nos. 1 and 2 of Property No, SW-94-R-104 situated in Sadar Street No, 34, Multan Road, Lahore. The respondent, Muhammad Aslam, is in possession of the property as tenant of the appellants who filed ejectment application against him mainly on the ground of reconstruction of the property. The entire property consists of for shops out of which two shops are occupied by the respondent. The other two shops are admittedly lying vacant, at present, after they were vacated by the tenants.
2. Two issues were framed on the basis of pleadings of the parties; as to whether the respondent had paid or tendered the rent according to law and whether the property in dispute was required by the appellants in good faith for reconstruction. The learned Controller deleted issue No. 1 because of lack of any allegation with regard to default in the payment of rent and decided Issue No, 2 against the appellant. The appeal which was filed against the aforesaid order of the Controller was dismissed by the lower appellate Court on 18-2-1978 mainly on the ground that sanctioned plan Exh. P. 1 had not been brought on record in accordance with law. It is an original plan duly sanctioned by the Lahore Corporation for the purpose of reconstructing the entire property i. e. All the for shops and a vacant site behind them owned by the appellants. The plan produced by one of the appellants in his own statement while appearing as A. W. 1, was duly exhibited on payment of cost of Rs, 5, which was received by the learned counsel for the respondent.
3. It has been vehemently contended by the learned counsel for the respondent while relying upon Tian Taj Din v. Messrs Royal Engineering Works (1), that since the building plan has not been brought on record in accordance with law, therefore, it cannot be considered in evidence. In PLD 1967 Lah. The plan sanctioned by the Municipal Corporation has been held to be a public document but since it was not got proved by any witness summoned from the office of the Municipal Corporation, therefore, it was held not to have been proved according to law. It was, however, held that the plan sanctioned by the Municipal Committee was a public document, since it was a record prepared under the Municipal Administration, Ordinance, as was clear from section 77(5) of the Ordinance according to which a Municipal Committee might sanction a building plan subject to such modifications or terms as may be specified in the order of sanction. Such plan has to be retained by the Municipal Committee as a matter of record for future reference and for taking action under section 78, if necessary. A copy of this document is always available from the Municipal Corporation on payment of the requisite fees.
4. More or less similar situation obtained in Mst. Akhtar Sultana v. Dr. Abdur Rauf Nagi (2) where question for consideration was whether the appellant did not require the building for reconstruction reasonably and in good faith and as to whether necessary sanction for reconstruction had been obtained. The counsel for the respondent in that case raised a legal objection with regard to the original plan for reconstruction wherein the {{FOOT NOTE}}
(1) PLD 1967 Lah. 718 (2) PLD 1978 Lab. 347 {{FOOT NOTE}} ' original sanction of the authorities produced from the appellants' side had not been proved in accordance with law. Reliance in that behalf was placed upon PLD 1967 Lab. Referred to above. In that case no objection had been raised before the learned Controller nor before the learned lower Appellate Court with regard to the admissibility of the sanctioned plan. The fact that the plan in that case had been duly sanctioned by the Municipal Committee was not disputed by the respondent in his written statement, however, a plea was taken instead that the plan for reconstruction was only a contrivance for getting the building vacated.
5. The legal objection raised in that case was repelled in view of the Authority Javaid Iqbal v. Rana Muzaffar Khan (1), holding that the Evidence Act in terms did not apply to the proceedings under the Rent Restriction Ordinance and further in view of the observations by the learned Single Judge in Mian Taj Din v. Messrs Royal Engineering Works as made in para. 6 .Of the judgment to the effect that the plan sanctioned by the Municipal Committee/Corporation was also a public document, since it was a record under the Municipal Administration Ordinance as was clear from section 77(5) thereof. It was held that since one original plan was retained by the Municipal Committee while another original plan bearing the endorsement of sanction and original signatures of the sanctioning authority was produced by the appellants, therefore, the sanctioned plan would be covered by the above-quoted observations as made in PLD 1967 Lah. It was further held that the original sanctioned plan being an authentic public document under section 127 of the Municipal Administration Ordinance read with Article 96 of the Basic Democracies Order shall be deemed to be genuine unless otherwise probed. The High Court in that case as reported in PLD 1978 Lah. Held the original building plan duly sanctioned by the Municipal Committee produced by the appellant himself while appearing as his own witness to have been brought on record validly as Evidence Act in terms did not apply to the proceedings under the Rent Restriction Ordinance. Similar view was taken in Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another (2). It was held that though under section 16 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Controller had been given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence, he was not bound in every case to follow the procedure as laid down in the Code of Civil, Procedure. He had been given powers under sections 4, 10(3) and 12 to make orders after holding such inquiry as he thought fit. In such cases the question of nature of enquiry was left to him. In such enquiries the parties had no right to insist on production of such evidence which they desired to adduce in support of their case, therefore, no machinery was prescribed for summoning witnesses or compelling production of documents. In short such inquiries might be such as were conducted by an Executive Officer. It was further held after examining the relevant provisions of the Ordinance that though some of the functions of the Controller were judicial in character yet he was not required to act judicially in discharging many of his functions. It was held that in these circumstances it would be difficult to hold that the Controller while performing his functions under the Ordinance acted as a Court. At the most it might be said that he acted in a quasi-judicial capacity. {{FOOT NOTE}}
(1) 1976SCMR 229 (2) PLD 1965 SC 459 {{FOOT NOTE}}
6. It means as held by the Supreme Court the proceedings before the Rent Controller are in the form of an enquiry and C. P. C. And Evidence Act do not apply thereto in strict senso. Further as held by the Supreme Court the Rent Controller does not act as a Court while Evidence Act (section 1) applies to all judicial proceedings in or before any Court. As such the dictum of law as laid down in PLD 1967 Lah. Will not be applicable to the proceedings under the Rent Restriction Ordinance, 1959.
The appellant has applied under Order XLI, rule 27, C. P. C. For bringing on record certified copy of the evidence to overcome the objection raised by the learned lower Appellate Court in the light of the judgment reported in PLD 1967 Lah. In view of the above finding that Evidence Act and C. P. C. In terms are not applicable to the proceedings under the Rent Restriction Ordinance, there is no need to decide the application.
7. In the present case the genuineness or authenticity of the building plan sanctioned by the Municipal Corporation has not been denied neither before the Controller nor before this Court. It has however, been argued that ejectment application on the basis of the aforesaid plan is only a device to compel the respondent to increase rent of the property. It has also been argued by the learned counsel for the respondent that since reconstruction of the premises in question is not reasonably and in good faith required by the appellants in the given circumstances of the case, therefore, their appeal should be rejected.
8. As mentioned above sanctioned plan was duly exhibited on payment of Rs, 5, as cost which was duly received by the. Learned counsel for the respondent. There is no doubt that objection to the document being admissible in evidence was raised by the respondent but after cost was paid and received, the respondent has no right to agitate the matter again under the law. If cost imposed by the Controller had not been received then the position may have been different. Even otherwise as discussed above, since the Evidence Act in terms is not applicable to the proceedings under the Rent Restriction Ordinance, 1959, therefore, the building plan being an authentic and public document was rightly produced by the appellant in his own statement and was rightly exhibited as P.
1. The observation as made by the lower Appellate Court to the effect that the building plan has not been brought on record in accordance with law has no bearing and the same is hereby repelled.
9. The next question which arises for consideration is as to whether the requirement of law as contained in section 13(vi) of West Pakistan Urban Rent Restriction Ordinance, 1959, has been fulfilled in the present case. The learned Controller has held that the reconstruction of the premises in question is not required by the appellants in good faith as they have not produced any evidence to that effect. Similar observation has been made by the learned lower Appellate Court while dismissing the appeal. As held in Bashir Hussain and another v. Sh. Muhammad Saeed and 2 others (1), whether an application for ejectment on ground of reconstruction makes out a bona fide requirement is primarily a question of law which can be determined even at this stage. Further both the authorities below have not adverted to the evidence produced on record with regard to reconstruction of the premises in question. One of the appellants, Abdul Majeed while appearing as A. W. 1 has stated that since the premises are old one, therefore, they want to raise a new building after demolishing them. In cross-examination he has stated that two of the shops already vacated by the {{FOOT NOTE}}
(1) PLD 1976 Lab. 1095 {{FOOT NOTE}} ' tenants have not been rented out mainly for the reason that when the shops in question are vacated then composite building will be raised on the premises covered by the for shops as well as the plot lying vacant behind the shops. It has been stated by A. W. 1 that the sanctioned plan includes the site underneath the shops as well as the aforesaid vacant plot. He has refuted the allegation of the respondent that ejectment application has been filed for the purpose of increasing the rent. The fact that the other two shops have not been leased out and are in possession of the appellants is admitted in evidence produced in rebuttal. R. Ws. 1 to 3, all have admitted this fact. None of them has stated that the site underneath the shops as well as the vacant plot lying behind the shops is not covered by the sanctioned plan. The evidence in rebuttal was produced on 4-2-1975 whereas A. W. 1 was examined on 3rd of October, 1974. The other two shops which had been leased out were got vacated from the tenants before the statement was made by A. W.
1. Even during the arguments of this case it has not been denied by the learned counsel for the respondent that the other two shops have not been leased out to any person by the appellants. It shows the bona fides and good faith of the appellants to reconstruct the building. A. W. 1 has categorically stated in his statement that since the building is an old one, therefore, it is required to be reconstructed. None of the R. Ws. Have refuted this fact. They all have repeatedly stated that the appellants do not want to reconstruct the premises rather on the contrary want to increase the rent. In the circumstances it cannot be said that the premises are not required by the appellants reasonably and in good faith for reconstruction purposes, It is, however, clear that after the appellants take possession of the premises and construct a new building on the same site the respondent would be within his right to make an application to the Controller under section 13(5-B) of the Ordinance which will be disposed of in accordance with law.
10. As a result of the above discussion the impugned orders passed by the Controller as well as the learned Additional District Judge, both are hereby set aside being contrary to law and facts of the case. The appeal is accepted without any order as to costs.
' The respondent is directed to vacate the premises (two shops) and hand over their vacant possession to the appellants within two months.