Appellant abovenamed, being aggrieved by judgment dated 16-2-1980 of the District Judge, Thatta in First Rent Appeal No. 9 of 1979, has preferred this IInd Appeal, inter alia on the following facts and grounds :--
1. The respondent abovenamed filed an ejectment application against the appellant on the ground of damage caused to the rented premises as well as on the ground, that he requires the premises in occupation of the appellant for purposes of re-construction. The appellant above-named filed his written statement in which he denied the allegations of the respondent and further submitted that the respondent had filed ejectment application mala fide as the appellant insisted for repairs to be made to the premises and refused to enhance the rent of the premises in his occupation as desired by the respon--dent. The appellant further submitted that 10 years prior to filing of ejectment application in question, the respondent had filed a similar application which was ultimately compromised, on appellant agreeing to pay Rs.1,500 to the respondent. The appellant had further stated in his said written statement, that the building in question was not in a bad condition and no reasons for its demolition have been mentioned by the respondent in his application.
2. On the basis of the above pleadings the learned Rent Controller framed the following issues :-
(i) Whether the opponent/appellant has caused damage to the suit premises?
(ii) Whether the applicant/respondent requires the suit premises for construction bona fide?
((i.e) What should the decree be?
3. The respondent examined himself and one P. W. Kewalram, whereas appellant examined himself and one D W. Shaukat before the learned Rent Controller. The learned Rent Controller after taking into consideration the evidence led before him and documents produced and after hearing the argu--ments of the learned Advocates of both the parties, dismissed respondent's application for ejectment, on both the grounds, for the reasons given by him in his order dated 16th May, 1979.
4. The respondent abovenamed being aggrieved by the order dated 16th May, 1979 of the learned Rent Controller preferred 1st Rent Appeal No. 9/1979 in the Court of District Judge, Thatta, Sind who after perusing the records and proceedings of the learned Rent Controller and after hearing the arguments of learned Advocates of both the parties, set aside the order dated 16th May, 1979 of learned Rent Controller Thatta, Sind and granted respondent's application on ground of reconstruction only, for the reasons given by him in his judgment dated 16th February 1980.
5. The appellant abovenamed being aggrieved by the judgment dated 16th February, 1980 of the learned District Judge, Thatta, has preferred this second appeal, on the grounds mentioned in the memo. Of appeal.
6. I have gone through the records and proceedings of both the learned Lower Courts as well as through their respective judgment and order in question and have taken into consideration the arguments advanced by the learned counsel of both the parties and have taken into consideration various authorities cited by both the parties.
7. The main contentions raised by the learned advocate of the appellant before me were
(i) That the application for ejectment was filed mala fide in order to get the rent of the premises enhanced and to avoid making repairs to the premises in question.
(ii) That the order of the learned Rent Controller is based on cogent reasons and as such ithas been wrongly set aside by the learned District Judge, Thatta, as the learned Rent Controller rightly held, that since respondent's application for ejectment of Khamoon, who was staying in the premises situated on Survey No. 2891, which was adjacent to the premises in occupation of the appellant was rejected, it was not possible for the respondent to put up new construction as proposed in the plans, produced by the respondent.
(i.e) That the permission for reconstruction issued by Thatta Municipal Committee shows that it relates to Ward 'A' whereas the premises in occupation of the appellant are situated in Ward B'. It was further ' urged by the learned Advocate for the appellant, that the correction of the name of the respondent in approved plan is not initialed and as such according to the said plan the owner of the proposed construc--tions is not the respondent but some lady.
8. The learned Advocate for the appellant in support of his contention, that the respondent had filed ejectment application in question mala fide stated, that 10 years prior to the filing of the present ejectment application the respondent had filed a similar application, which was ultimately compromised, on appellant paying Rs.1,500 to the respondent and this shows] that the respondent is not at all keen to put up new construction and his present application has, been made mala fide to harass the appellant, as appellant has refused to enhance the rent of the premises in his occupation and has been insisting upon the respondent to carry out repairs to the premises in question. I have carefully considered this submission of the learned Advocate of the appellant and have gone through the records and proceedings of the Trial Court and I am afraid I cannot agree with this contention of the learned Advocate for the appellant, as the earlier ejectment application was filed 10 years prior to the present ejectment application and the lapse of this period is sufficient for the revival of respondents intentions to put up new e constructions in the place of old construction, standing at present on the said survey numbers. Further more, the averment of the appellant that respondent demanded enhanced rent has been refuted by the respondent in his statement on oath and as such there is only word against word, on this aspect and in the absence of any other independent evidence to support this contention of the appellant, I am not prepared to consider this allegation, even if it was correct, to attribute mala fides to the respondent for filing ejectment applica--tion, on this ground, as alleged by the appellant. Similarly mere refusal of the respondent to carry out repairs to old building, built of wood and mud does not by itself prove mala fides intentions of the respondent. In this connection the statement of P. W. Kewalram clearly shows, that he has been given contract for construction of the proposed buildings by the respondent and further more according to this witness, the premises in occupation of the appellant are very old and are made of wood and mud, This evidence of P. W. Kewalram has remained unchallenged as no question refuting these allegations was put to this witness, in his cross-examination, In view of this evidence on record, I am of the opinion, that the respondent had filed eject--ment application in question bona fide in order to put up new constructions in place of old wood and mud constructions, to which the respondent has every right, in order to improve the yield of income from his property in question. Further more it may be noted that respondent before me, offered to enter into reasonable agreement for re-admitting the appellant in newly- constructed building, but this offer of the respondent was turned down by the appellant. This also goes to prove, the bona fides of the respondent to put up new construction in the place of the old construction bona fides. Therefore I see no force in this contention raised by the appellant, in view of the evidence on record. I also see no force in the second contention of the learned Advocate for the appellant, as Additional District Judge, Thatta has granted ejectment application of the respondent, against Khamoon by his judgment dated 16th February, 1980, in Second Rent Appeal No. 2 of 1979.
9. As far as the third contention raised by the learned Advocate for the appellant is concerned, I have examined the approved plan produced before the Trial Court, which clearly shows that the survey numbers in question are situated in Ward B' and obviously there is mistake in the letter dated 21st February, 1978 of the Administrator Peoples Municipal Committee, Thatta, which mistake has been corrected by the Chairman, Municipal Committee, Thatta, vide his letter dated 21-5-1981 which has been produced by the respondent through application CMA-194U/81 dated 21st May, 1981, for which I had issued notice to the appellant, who has filed his objections to the said application. As far as the contention of the learned Advocate for the appellant, that the approved plan does not show respondent as the owner, I have examined the said approved plan and find that the same has been signed by the respondent, as owner, no doubt in the heading printed originally name of some lady was mentioned as owner but the same was struck of and the name of the respondent was mentioned in her place. However, this correction made in ink is not initialed by any officer of the Thatta Municipal Committee, but the approved plan is actually signed by the respondent as owner and as such non-initial of this correction in my opinion does not in any way support the contention of the learned advocate for the appellant, that the respondent is not the owner of the proposed construction and plans produced by the respondent relate to some other property.
10. The learned Rent Controller by his order dated 16-5-1979 rejected the respondent's application, on the ground of reconstruction, mainly on the ground, that respondent had not produced any proof, that he had acquired possession of the survey No. 2891, which was adjacent to the premises in occupation of the appellant, without which the re-construction in question was not possible.
Secondly on the ground that the respondent failed to produce any evidence to prove that the premises in occupation of the appellant were in dangerous condition. I do not agree with the reasoning of the learned Rent Controller, as he himself in his said order has referred to the evidence of P. W. Kewalram, in which the said witness has stated, that the building in question is an old building and in the face of this evidence which has not been rejected by the learned Rent Controller, the respondent is fully justified to re-construct the said building in order to get .Better returns. The landlord under the provision of the West Pakistan Urban Rent Restriction Ordinance, 1959 has to produce approved plan, permission to construct and establish his bona fides to reconstruct the premises. In my opinion the respondent by his statement on oath and documents produced by him has complied with all these requisites of law and in addition he had produced independent witness P. W. Kewalram, who has stated, that the premises in occupation of the appellant are made of wood and mud and the contract for re-construction of the. Said premises has been given to him by the respondent. This statement of he said witness was no; at all challenged in his cross-examination. In view of this the learned Additional District Judge, having appraised the evidence on record, set aside the order of the learned Rent Controller and granted ejectment application of the respondent on the ground of reconstruction by relying on the cases reported in PLD 1978 Lah. 728, PLD 1972 Quetta 39 and PLD 1977 Kar. 581 and came to the conclusion that authority cited by the appellant which is reported in PLD 1977 Lah. 1095 was not applicable to the facts of the present case. The only defence in respect of this ground in addition to mala fides, that was urged before me by the learned Advocate for the appellant was, that :he premises are in good condition and as such they do not require reconstruction. I see no force in this contention of. The learned Advocate for the appellant. It may be noted that the respondent before me also offered to re-admit the appellant, after reconstruction and in this connection was ready to enter into appropriate agreement, but this offer was not accepted by the appellant. This action on the part of the respondent goes to establish his bona fide for reconstruction and as such I see no reasons to interfere with the order of the learned District Judge, Thatta.
11. In view of my above conclusions, I see no force in the above appeal which is consequently dismissed with no orders as to cost. However, appellant is allowed 4 months time from today to vacate the premises in his occupation and hand over its vacant possession to the respondent, provided he continues to deposit the rent in Trial Court according to the tentative rent order passed by the learned Rent Controller.