1. ' Appellant being aggrieved by the order dated 2nd May, 1973 of the rind Additional District Judge, Sukkur and order dated 29th June, 1972 of the Rent Controller, Sukkur by which appellant's ejectment application was rejected, has filed this appeal inter alia on the following facts and grounds : ' That the appellant secured the transfer of the evacuee shop bearing No, B-630 at Sukkur by way of surrender from Muhammad son of Usman transferee-occupant of the shop and on payment of its price got a P. T. D. Dated 23-1-1963 under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Since the respondent was in possession of a portion of the shop he assumed the status of a statutory tenant and such was the status of said Muhammad occupant of the other portion. The appellant served them on 19-2-1963 and 21-2-1963 with demand notices as required under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
2. The respondent and Muhammad further acknowledged the appellant's bona fide requirement and poor condition of the shop and undertook to vacate it after the expiry of 6 years' protection period under an agreement executed by them on 18-11-1962 and each began to pay Rs, 20 per month.
3. ' That during 6 years of protection, the occupants committed default in the payment of monthly rents, but the appellant did not disturb them in view of their undertaking to vacate the shop as promised.
4. ' That the period of 6 years expired in the month of March, 1969 and appellant demanded them to honour their commitment but they avoided it on one pretext or the other and the appellant was constrained to seek their eviction on three grounds :- "(1) Period of protection has expired and they are no more entitled to retain possession of the shop.
5. (2)The appellant needs the shop for his personal use in good faith ; and (3)The appellant wants to reconstruct the shop in view of dilapidated conditions of the shop and for this he has obtained necessary sanction from the local Municipal authorities."
6. ' That one occupant Muhammad compromised with the appellant and vacated his portion of the shop on 12-4-971 whilst the respondent resisted his ejectment pleading.
7. ' The respondent who contested the ejectment proceedings filed his written statement and stated therein that he was not a party to agreement to the surrender shop in his possession on the expiry of statutory period of 6 years. He further stated in his written statement that the agreed rate of rent was Rs, 30 per month and as such the agreement dated 18-11-1962 between the original appellant and Muhammad Bhai, the respondent No. 1 in the ejectment application, is not binding on him. The respondent in his written statement further stated that the original appellant did not require the shop in question for his bona fide use, as he owned other shop in Sukkur. It was further mentioned in the said written statement that original appellant never carried out repairs at any time to the shop in question and the shop does not need to be reconstructed. It was further mentioned in the said written statement that no cause of action accrued for the filing of the ejectment application and as such application is not maintainable under law and is bad for misjoinder of parties. The respondent further in the said statement mentioned that the original appellant charged exorbitant rent and he being statutory tenant is liable to pay rent on the basis of latest assessment of the Municipality.
8. ' On the basis of above pleadings of the parties the learned Rent Controller framed the following issues :
(1) Whether the applicant purchased the property No, B-630 for his own business/use and whether the opponents agreed to hand over its possession after the expiry of the protection period provided under the Displaced Persons (Compensation and Rehabilitation) Act, 1958?
(ii) Whether the opponent No. 1 was not served with the notice dated 18-2-1963 as required under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 ?
(iii) Whether the applicant requires the property for his own bona fide use ?
(iv) Whether property is `Kacha' and old construction and the applicant requires it for reconstruction, if so, whether he has obtained the necessary sanction from the Municipal Committee ?
9. (v)Whether the rent charged by the applicant is exorbitant and illegal ? If yes, what should be the fair rent ?
(vi) Whether the application is maintainable under the law ?
(vii) To what reliefs, if any is the applicant entitled ? What should the order be ?
10. ' The original appellant examined himself, one Idrees and Sadaruddin on his behalf before the learned Rent Controller whereas the respondent above-named examined himself only.
11. ' The learned Rent Controller taking into consideration the pleadings of the parties and the evidence adduced before him as well as the arguments advanced by the learned counsel for both the parties decided that respondent above-named was not a party to agreement to vacate the premises in his occupation after the expiry of protection period and disposed of Issue No. 1 accordingly and in respect of Issue No, 3 he held that the appellant did not require the property for his bona fide use and answered the said issue in negative. In respect of Issue No, 2 the learned Rent Controller held that a separate notice should have been given to the respondent under section 30 of the Displaced Persons Act, 1958. The learned Rent Controller also decided Issue No, 4, against the original appellant. On Issue No, 5 the learned Rent Controller held that Rs, 30 per month was a reasonable rent and that the respondent had been paying the same voluntarily. The learned Rent Controller also decided Issue No, 6 against the original appellant and consequently dismissed the original appellant's application. The original appellant being aggrieved by the order dated 29th June, 1972 of the learned Rent Controller filed Appeal No, 113/1972 before the IInd Additional District Judge, Sukkur who by his order dated 2-5-1973, dismissed the said appeal and confirmed the order dated 29th June, 1972 of the learned Rent Controller except in respect of the finding of the learned Rent Controller that clause (2)(vi) of section 13 of the Ordinance was not repealed by promulgation of Ordinance XVII of 1979.
12. ' Being aggrieved by the above findings of both the learned lower Courts, the original appellant filed the above appeal and during the pendency of the appeal, the original appellant died and as such the present appellants were brought on record as the legal representatives of the original appellant.
13. ' The learned counsel for the appellants at the outset mentioned that in view of the death of the origin::' appellant, the present appellants do not wish to challenge the findings of the learned lower Courts in respect of Issues Nos. 1 and 3 but will make submissions in respect of findings of both the lower Courts in respect of Issue No, 4 only. The learned counsel for the respondents also at the outset mentioned that notice under section 30 of the Displaced Persons Act, 1958 was duly served on the respondent as held by both the learned lower Courts and as such he would not like to press the point that a separate notice under section 30 of the Displaced Persons Act, 1958 was not given to the respondent and as such the said notice was invalid. In view of these statements of the learned counsel for the parties, both the learned counsel confined their arguments before me to Issue No, 4 only.
14. ' The learned counsel for the appellants submitted that the deposition of the original appellant about his genuine requirement for reconstruction of the premises on the ground that the present construction were Katcha and in a dangerous condition, was not challenged at all in cross- examination by the respondent and further the original appellant had produced the plan for the proposed constructions duly approved by the Sukkur Municipality and as such both the learned lower Courts have wrongly decided this issue against the original appellant. In support of this contention, the learned counsel for the appellants relied upon case reported in 1969 SCMR 131. On the other hand the learned counsel for the respondent submitted that the original appellant failed to discharge burden of proof in respect of this issue and his mere assertions that the constructions in question were Katcha constructions and in a dangerous condition, was not sufficient to establish reasonableness and good faith on the part of the original appellant under section 13(2)(vi) of the Ordinance in question for ejectment of the respondent on the said basis. The learned counsel for the respondent further stated that the original appellant brought no evidence on record to show the estimated cost of constructions and his ability to put up the said constructions which was essential to bring his case within the provisions of section 13(2)(vi) of the Ordinance in question and in this connection the learned counsel for the respondent relied upon case reported in PLD 1978 Kar.
581. The learned counsel for the respondent further stated that the case reported in 1969 SCMR 131 was distinguishable on facts and as such the same was not applicable to this case.
15. ' I have carefully considered the above submissions of both the learned counsel for the parties and have gone through the evidence that was adduced before the learned Rent Controller as well as their orders and reasoning for deciding Issue No, 4 against the original appellant. The original appellant in his statement before the learned Rent Controller had mentioned that the premises in question were Katcha constructions and required reconstructions and had produced the approved plan of Sukkur Municipality for purposes of reconstructions. This statement of the original appellant was not challenged in his cross-examination by respondent. On the contrary the trend of the cross-examination of the original appellant shows that the genuineness o appellant to reconstruct the premises was not disputed by the respondent but the respondent tried to suggest that the said reconstruction was being done with a view to get increased rent for the premises. The respondent in his own deposition before the learned Rent Controller no doubt denied the assertions of the original appellant that he required the premises for purposes of reconstructions for his personal and bona fide use but did not otherwise challenge the assertions as made by the original appellant in his deposition nor he alleged that the original appellant did not have means or resources to put up the proposed constructions.
16. ' The learned Rent Controller decided this issue against the original appellant because he came to the conclusion that on account of appeal of Ordinance XXI of 1965 by Ordinance XVII of 1979 by which clause (2)(vi) was introduced, the said clause did not exist anymore in the said Ordinance and consequently held that since appellant failed to produce any notice from the Municipality that the shop in question was in a dangerous condition and required reconstructions, he decided the said issue against the original appellant. The IInd Additional District Judge, Sukkur while discussing this issue held that appellant has failed to prove that he requires the premises in occupation of the respondent for purposes of reconstructions as no certificate from Municipality that the shop in question was in a dangerous condition -and required reconstructions, has been produced and further stated that mere sanction of plans by Municipality for reconstructions of the above shop did not entitle the original appellant to get the shop vacated for the said purpose, and as such he agreed in principle with the finding of the learned Rent Controller by which the said issue as decided against the original appellant.
17. ' The provisions of section 13(2)(iv) of the Ordinance reads as under :- "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 rejection from the Town Improvement Trust, Municipal Corporation, Municipal Committee for the area where such building or rented land is situated.
18. ' The Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application : ' Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building of rented land and may extend such time so as not to exceed for months in the aggregate."
19. ' According to the above provision mere production of approved plans or a sanction for such proposed constructions by itself are not enough for the ejectment of the tenant but in addition to this the burden is cast on the landlord to establish that he reasonably and in good faith requires the premises for purposes of reconstruction. In this connection in a case reported in 1969 SCMR 131, it was held that the finding of the lower Court based on evidence adduced before it should not be interfered simply because the landlord has failed to establish his personal requirement of the said premises under the provisions of the Ordinance as said requirement of the landlord has nothing to do with requirement of the landlord for the possession of the premises for purpose of reconstructions, as penal provisions contained in subsection (5) of section 13 of the Ordinance assures an adequate safeguard against the landlord acting in a bad faith. Further in a case reported in PLD 1960 Kar. 23, it was held that reconstructions of the old building on modern lines if proved was sufficient for grant of landlord's application for ejectment and the certificate of the authority declaring the old premises in a dangerous condition was not necessary. Similarly in a case reported in PLD 1972 Quetta 39, it was laid down that landlord's desire to improve and develop substantially his property would cover reasonable and good faith under the above provisions and the learned Rent Controller had discretion to determine the question of reasonableness and good faith on these basis. In this authority it was further held that clause (2)
(vi) entitled landlord to rebuild his property for purposes of improvement and development of the said property. Similarly in a case reported in 1980 SCMR 206, the Hon'ble Supreme Court held that effect of reconstruction being substantially to develop and improve the property, landlord's requirement, held, bona fide and reasonable on the said basis.
20. The principles of law laid down by the above authorities is that if the reconstruction is being done for purposes of improving and developing the old property the bona fides and good faith is to be presumed for purposes of clause (2)(iv) and as such in my opinion, the statement of the original appellant that the shop in question was a Katcha shop and in a dangerous condition and he wanted to reconstruct, was sufficient for the learned Rent Controller as well as the learned I'M Additional District Judge to accept the said evidence specially as the same was not shaken in cross-examination and this fact and evidence on record has been overlooked by both the learned lower Courts. The important question which requires consideration, is that the original appellant nowhere, either in his application or in his deposition mentioned that he had means and resources for putting up the proposed construction. However, in my opinion, the question of availability of funds and resources in the modern times has no bearing of or effect on the bona fide and good faith of the landlord, as it is possible for landlord to obtain loans for such purpose from various organizations like House Building Corporation, Banks etc. And furthermore this condition has not been laid down in section 13(2)(v0 of the Ordinance and as such I hold that the original appellant had established by his evidence, that the premise in occupation of the respondent are required for purposes of reconstruction as the present premises are Katcha and in a bad condition and as such I allow the above appeal and set aside the orders of the lower Courts on this issue only and grant for months' time to the respondent to vacate the premises in his occupation and hand over its possession to the present appellants as the legal heirs of the original appellant.
21. ' I may further before parting with this matter mention that the respondent is entitled under section 13 (5-B) of the West Pakistan Urban Rent Restriction Ordinance, 1959 to move the learned Rent Controller for restoration of possession in the newly-constructed building as provided by this subsection and further in case the landlord does not proceed to construct within the time laid down by section 13 of the Ordinance, the respondent will have a right to move the learned Rent Controller under section 13 (5-A) for restoration of his possession as provided by the said Ordinance.
22. ' In view of the facts and circumstances of the above appeal, I will pass no orders as to costs.