SYED SAJJAD HASSAN SHAH, J. --- Through this single judgment, we propose to dispose of the connected W.P. No. 420/2009 & W.P. No. 539/2009, as common question of law and . Facts are involved. However, the separate detail of each petition given below:--- Bashir Khan Mohammad, the petitioner filed W.P. No. 420/2010 against Qurban Ali and three others, the respondents, wherein, challenged the concurrent judgments and orders dated 16.10.2008 and 31.01.2009, passed by the learned Courts below, dismissing the application and appeal filed by the petitioner against the respondents, seeking ejectment on the grounds of personal need and reconstruction as well.
Whereas, W.P. No. 539/2010 filed by Naveed Shakeel Awan and three others, the petitioners against Qurban Ali and three others, the respondents, wherein, the concurrent judgments and orders dated 16.10.2008 and 31.01.2009, passed by the learned Courts below, dismissing the application and appeal filed by the petitioners against the respondents, seeking ejectment on the grounds of personal need and reconstruction as well.
2. The respondent No. 1 and his other two brothers namely Nisar Ali and Muhammad All were the joint owners of the shops in dispute and other similar properties. They have effected private partition of their properties including the property in dispute, to this effect the agreement deed dated 2.3.2002,, was executed in-between all the brothers same was placed on record, whereby, the disputed shops fell in the share of the present respondent. The petitioners in all the writ petitions were in occupation of the disputed shops as tenants. Before partition Nisar Ali the brother of respondent was receiving the rent of shops, however, after private partition of suit shops, the respondents/landlord approached to the tenants (hereinafter called as petitioners) and informed that he being the exclusive owner of the disputed shops, required The premises for his personal use and occupation, after demolition, as per the building plan, a departmental store would be constructed. The petitioners had refused to vacate the demised premises, therefore, the respondent/owner/landlord (hereinafter called respondent) have filed the ejectment petitions on the grounds of reconstruction and bona fide self-requirement, the petitioners contested the same by filing their written statement. The learned Rent Controller framed same issues in all the petitions:---
(1) Whether the petitioner has cause of action?
(2) Whether the premises are in poor condition and required to be reconstruction?
(3) Whether the premises in question has been comes in the share in the family partition?
(4) Whether the premises in question is required to the petitioner for his personal bona fide need?
(5) Whether the petitioner is made on the basis of mala fide?
(6) Whether the petitioner is entitled to the decree as prayed for?
(7) Relief.
3. In support of above issues, parties adduced their evidence, both. Oral and documentary. The learned Rent Controller accepted the ejectment petitions vide order dated 16.10.2008. Feeling aggrieved, they have preferred appeals, which were dismissed and their ejectment orders were upheld on 31.1.2009.
4. The learned counsel for the petitioners contended that the learned Rent Controller failed to frame issue as per pleadings, of the parties, according to learned counsel, the petitioners categorically stated that they were not the tenants of the present respondent/owner as they had been paying rent to his brother namely Nisar Ali Khan. He further submitted that no rent deed executed in-between the petitioner and the respondent/owner. The respondent never apprised the petitioners in any manner about the family partition of the demised premises in his favour and no notice had been issued to the petitioners. He further stressed that the respondent and his brothers decided to alienate the suit property after its vacation. It was further argued that the suit property was constructed on a sewerage drain known as Shahi Katha, whereupon the departmental store could not be constructed and thereby, challenged bona fide need of the respondent.
5. The learned counsel for the respondent while rebutting the arguments of the petitioners, contended that both the fora below concurrently held that the respondent required the suit premises for his personal bona fide need and got approved the building plan for construction of the departmental store, the sanction was accorded after the compliance of the codal formalities.
And by means of sufficient evidence substantiated his requirement pleaded in the petition for ejectment, he argued that the petitioners/tenant's rights were protected under the law. In case of any deviation of order passed by the fora below, the petitioners can set in motion, the provisions of law for the.. Restoration of their possession of the demised premises.
6. , the arguments of the learned counsel for the parties considered and record carefully perused.
7. Perusal . Of the record revealed that the respondent has given full detail of his requirements for the ejectment of the petitioners. The vacation of the premises required for the demolition and reconstruction of a departmental store according to approved building plan by the competent authorities. The copies of same admitted in evidence as Ex.PW.1/1 and 1/2, but not objected to by the petitioners. Admittedly, that the suit premises being hundred years old construction, in dilapidated condition and dangerous for human occupation. The respondent in his cross- examination, testified that he was in service at Karachi and was employed as Manager Industrial Relations & Welfare at Karachi Port Trust, but now has permanently settled at Peshawar, therefore, he required the premises for his personal use in this respect he has filed the affidavit on the record and was cross-examined by the petitioner at length, a major portion of the statement corroborated the case of the respondent/owner rather he has in his cross-examination clarified, reproduced as below:--- "I personally informed them about the dangerous and bad condition of the, disputed property and keeping in mind the dangerous condition of property, we have removed the upper structure of the disputed property. In this connection the deed was also executed between the tenants as well as Abdul Karim by us jointly on 8.9.2001. The Photostat copy of the deed Ex.PW.1/1 approximately a year couple of months back I have got the site plan passed from the Municipal Administration Town-1- which is Ex.PW. 1/2, the Ijazat Nama is Ex.PW. 1/3".
8. In his cross-examination, he explained about the afore-stated construction on Shahi Katta, the statement, reproduced as under:- "Shahi Katta situated under the disputed property and flowing under the disputed property and other property may be belonging to Government, but upper structure belonging to us. I do not know that any private property on the drain from the start upto its end constructed, by private person or not. I have already obtained the site plan in respect of the construction of the disputed property and other property".
9. The above-mentioned statement made in cross-examination of the respondent who was examined as PW.1, is a sufficient proof of his bona fide as well as the reconstruction after demolition of the demised premises. There is no cavil that the examination-in-chief as well as cross- examination of a witness made one statement, reliance placed on PLD 1983 Peshawar 67.
Therefore, it is discernible from the examination of entire statement that the respondent consistently deposed about the bona fide personal need as well as the reconstruction of the disputed premises. In support thereof, affidavits on behalf of his other brothers namely Nisar Ali PW.2 and Muhammad All PW.3 produced on record, they were examined and testified in clear terms that the private partition effected regarding the suit shops and other properties, the suit shops allotted to the present respondent and rest of the property given to them. Nisar Ali PW.2 further corroborated about the existence of tenancy of the petitioners regarding the suit premises, about the receipt of rent as well as issuing of receipts, the factums of tenancy candidly admitted by the petitioners in their written statement, they had not asserted their ownership denying the title of the respondent/owner.
10. The tenant had a mere tenuous right, the same was insufficient to permit him to block the proposed reconstruction of the property by its owner. If the tenant desired,, without hindrance he could leave at any moment. Fie was not bound to stick to the property, having no locus standi to curtail the right of owner regarding the development and improvement sought to be made in respect of the demised premises and the owner of the premises in this behalf could not be dictated by the tenant.
11. As per the definition of landlord as given in Section 2(c) of Rent Restriction Ordinance, 1959, reproduced as under:--- "Landlord means any person for the time being entitled to receive rent in respect of any building or rented land whether on his on account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the mariner hereinafter authorized and every person from time to time deriving title under a landlord".
12. In view of the above definition of the word landlord, the respondent/owner is one of the joint owners of the property and the rent was also collected on his behalf by his brother Nisar Ali who appeared as PW.2 and admitted the factum of family partition, therefore, the defence of the petitioners was derogatory to the provisions of law, thus, the petitioner in this respect cannot derive any advantage. It is gain saying that any person to be a landlord within the meanings of clause (c) is not restricted to the person who actually receives rent. It contemplates that a person who is eligible to receive rent though he might have never in fact received rent in past, the landlord and any person on behalf of the owner collecting the rent, entitled jointly or severally to institute eviction proceedings u/s. 13 of the Ordinance ibid. Reliance placed to a case titled Syed Amjad Ali Shah v.
Muhammad Afzal, etc.; reported as NLR 1987 Civil Lahore 506, the head note (a) reproduced as under:-
(a) Rent Restriction Ordinance (VI of 1959), S.2(c)- --Person to be a landlord within meaning of clause (c)---Not restricted to person who actually receives rent---It also contemplates within its ambit a person who is eligible to receive rent though he might have never in fact received rent in past---Attorney of landlord falls within meaning of landlord and he as well as landlord himself would be entitled jointly or severally to institute eviction proceedings u/s. 13.
13. In the light of above legal proposition coupled with the fact that at the time of framing issues, ias not agitated by the petitioners, rightly so, as they have not denied the ownership of the petitioners and not asserted their title, therefore, they have no legal right to ask for framing of the desired issue as no necessity had arisen to frame the said issue when the proceedings were pending and contested by the petitioners, the objection raised by the learned counsel for the petitioners that the issue about the "existing of relationship of landlord and tenant has not been framed" is without any legal force, thus repelled.
14. The other objection was raised by the learned counsel for the petitioner that no notice was issued, most probably the learned counsel was referring, the notice required under Section 13-A of the Rent Restriction Ordinance, as per provision contained therein, it is only required when there is a question of default raised by the landlord as a ground for the eviction of the tenant. However, in the instant eviction petition, no question of default agitated by the respondent, inasmuch as the petitioners rather acknowledged the ownership of the respondent, and as against this the respondent claimed no rent due after private partition of the suit premises, as the rent received by the respondent through his brother Nisar Ali, thus, the verbal demand by the respondent to the petitioner, as supported by the witnesses, was sufficient to inform about his exclusive ownership and his requirements for vacating the demised premises.
15. As per the law laid down in a case titled Iqbal Book Depot and others v. Khitab Ahmed and 6 others, reported as 2001 SCMR 1197. The tenant has no right to question the suitability or non-suitability of the construction to be raised by the landlord/owner, therefore, the construction of departmental store by petitioners after demolition of demised premises for his personal occupation and use, as per dictum laid down by august Supreme Court, that the bona fide need on the grounds, the premises in question are not suitable for establishing the restaurant seems to be fallacious as the selection of area and nature of business is the choice of the landlord which could not be interfered with, their Lordships made reference to a case titled F.K. Rani and Co. v. Begum Feroze, reported as 1996 SCMR 1178, "that suitability of opening a departmental store by landlord in any one of the available premises entirely depend upon the choice of the landlord. In paragraph 10 of the judgment it is further observed that "we are of the view that it may be left to the discretion of the landlord who alone has the authority to decide this aspect of the matter and no advise or suggestion can be made binding upon him as the tenants cannot act as gracious advisors". In the same judgment in paragraph 7 the rule laid down by the august Supreme Court that "it is well-settled by now that where the statement of landlord on oath was .Quite consistent with his averment made in the ejectment application, neither his statement was shaken nor any thing was brought in evidence to contradict the statement that would be considered sufficient for acceptance of ejectment application". In this regard, we fortified by the dictum laid down in the case titled Jumma Sher v. Sabz Ali, reported as 1997 SCMR 1062, wherein it was held as follows:- "Sole testimony of the landlord is sufficient to establish his personal bona fide need of premises.
Where the statement of landlord on oath was quite consistent with his averments made in the ejectment application and neither his statement was shaken nor anything was brought in evidence to contradict his statement and tenant had not even stepped in the witness-box to controvert the testimony of the landlord. Rent Controller was fully justified in accepting the evidence of the landlord and ordering eviction of the tenant."
16. Moreso, dicta laid down in the case titled Gul.
Muhammad v. Nasir Ahmed and others, reported as 1989 SCMR 1847. At page 1848 the august Supreme Court observed that "in case of Waris Hussain petitioner in Civil Petition No. 116/P of 1989 the High Court observed as follows:--- "the landlord had thus 'sufficiently discharged the burden of proof pertaining to his plea of requirement of the suit premises for reconstruction reasonably and in good faith. The second ground of bona fide personal need was equally established from the statement on oath of the landlord which stood unrebutted". In another paragraph at the same page it is further observed that "the very contentions were raised before the High Court and were repelled. The High. Court gave sound reasons for rejecting both the above-referred points. Evidence of Imdad Hussain was taken note of. The following observation would show that both aforesaid grounds were duly met by the judgment of the High Court in the case of Gul Muhammad petitioner in Civil Petition No. 115-P of 1989" "the landlord, thus proved his , plea of requirement in good faith reconstruction of the suit premises. The second ground of bona fide personal need was equally established from the statement on oath of the landlord which stood unrebutted. While dismissing the petition it was observed that "the High Court in both the cases" was of the following view:- "Moreover this is a Constitutional petition and unless any illegality, material irregularity, wrong or illegally exercise of jurisdiction, misreading or non-reading of evidence, resulting the miscarriage of justice are pointed out, the decision of special forums created ,under the Rent Restriction Ordinance cannot be interfered with".
17. The objection raised by the learned counsel for the petitioner regarding the bona fide personal need of the petitioner on the strength that reconstruction raised on the sewerage drain owned by the Municipal Authorities. It is pertinent to note, that the tenant admitted the petitioners as owners of the demised premises, they could not take shelter of such an objection as the law does not permit a litigant to "blow hot and cold at the same time" and to "stage volt face" while asserting that the petitioner could not raise the ...Construction. Moreso, this was a matter in-between the Municipality, Which issued the approved site plan and accorded the permission for reconstruction as per provision of the site plan, therefore, this objection also having no force and turn down. In this regard the reliance can be placed to a case titled Bahadur Khan and others versus Ch. Muhammad Hussain and others, reported as 1991 SCMR 429 (d) of the judgment same is reproduced as under:- (d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)
S. 13... Constitution of Pakistan (1973), Art. 185...Reconstruction...Tenant's plea that the landlord would raise construction on the highway, was not entertainable because tenants had no concern with it.
18. The landlord sought the eviction of the tenant in terms of Section 13 (2)(vi) which runs as follow:- -- "The building or rented land is reasonably and in good faith required by th landlord for the reconstruction or erection of a building or the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal .Committee or Town Committee for the area where such building or rented land is situated: 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".
19. Above-referred law manifestly declares that it is the satisfaction of the Controller to pass the order of accepting or rejecting the application. The satisfaction of the Controller can be gathered from the judgment, according to our view is based upon the sound reasoning in the light of material available on record, thus, passed the eviction order against the petitioners, the same record was reviewed again by the learned Appellate Court, while exercising the power u/s. 15 of the Ordinance ibid and approved the findings . made by the Rent Controller".
20. The personal need of the landlord/owner as enunciated in Section 13 (2) explanation for the purpose of clause (1):---
(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:---
(i) In the case of a residential building if.. {a) .(b)
(c)
(ii-) in the case of a non-residential building or a scheduled building or rented land if:---
(a) he requires it in good faith for his on use or for the use of any of his (male) children;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be suitable for this needs at the time; and
(c) (d) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application:
21. The requirement of law for the determination of bona fide or good faith exclusively vested upon the ' satisfaction of the Controller. Before any such adjudication, the claim of the landlord, as being bona fide or not to be assessed from the record. If the Controller has been satisfied that the demised premises required by the landlord for his personal bona fide need then the order of eviction would be passed. The law does not specify the mode and method of satisfaction .Of the Controller, nonetheless, after going through the record of the case, if satisfied, thus, the order of eviction would be passed. We have examined the statement of respondent, his witnesses and other material available on record, same inspired confidence and could safely be taken to be an expression in good faith and bona fide requirement of landlord for reconstruction of his property.
No. Aterial has been brought to doubt his credit in this behalf. At the cost of repetition, it may be observed that the Court below upon proper analysis of evidence have found the claim of respondent as genuine. In support, where of the reference can be made of NLR 1985 Civil 779.
The carte:` at the building was required for self use and for reconstruction, was based on solid evidence and two-fold requirements were adequately proved.
22. In 'case the respondent contravenes the order passed under the above-referred Sections, he would face the consequences ensuing therefrom as laid down in sections (4), (5-A), (5-B) of Section 13 of the Ordinance ibid. Reliance placed to a case titled Iqbal Book Depot and others v .
Khitab Ahmed and 6 others, reported as 2001 SCMR 1197, ibid.
23. In the aforesaid view of the matter this petition is dismissed and the petitioners are allowed 3 months' time to vacate the building in favour of respondent No. 1. .