ABDUL RASOOL MEMON, J.---Through this Constitutional Petition, the petitioners have impugned the judgment dated 15-3-2012 passed by the learned District and Sessions Judge, Hyderabad in FRA No,60 of 2011 whereby petitioners' appeal was dismissed and order dated 31-10-2011 passed by IVth Senior Civil Judge and Rent Controller, Hyderabad in Rent Case No, 7 of 2010, allowing the rent application of respondents Nos.1 and 2, was maintained.
2. The facts of the case are that the respondents Nos.1 and 2 are the owners/landlord of the market constructed on Plot No, 8/A, Civic Center situated in Unit No,7, Latifabad, Hyderabad. There are shops on ground floor and residential flats on upper floor of the market. The petitioners are in occupation of Shop No, 3 constructed on the ground floor of the said market as tenants with following boundaries:-- North Shop No. 2 South Shop No. 4 East Main Road, West Open Plot
3. It is the case of the respondents in rent application that the appellants have not paid the rent of the demised shop from 1-11-2005 till filing of the rent application and thereby they have committed willful default in payment of rent. The respondents had filed Rent Application No, 58 of 2007 against the father of the petitioners, but later-on the same was withdrawn. The father of the petitioners expired on 4-6-2003 and thereafter they came in possession of the demised premises. The respondents took plea in their rent application that the demised premises is required to them for reconstruction of multi-storey building in place of the said market and they have already obtained necessary approval/ permission and NOC of proposed building plan from the Direct Building Control HDA ; that the legal notice dated 12-5-2006 was also given to the petitioners for handing over the vacant physical possession of the demised premises but they declined to do so.
4. The petitioners in their written statement denied the default in payment of rent and pleaded that the claim of the respondents for reconstruction of demised premises is based on mala fide, as respondents have no mind to put them into possession of the newly constructed shop equal in size.
5. The parties went to trial on the following issues/points:--
(1) Whether the opponents are willful defaulters in payment of rent from 1-11-2005?
(2) Whether the applicants require the demised shop for reconstruction?
(3) What should the order be?
6. To prove their case, the respondent No,1 Umer Hayat, filed his affidavit-in-evidence. In rebuttal, appellant/Opponent No,2 filed his affidavit-in-evidence and also examined their witnesses Syed Abdul Razaq Shah and Nazeer Ahmed. The Rent Controller answered the point No,1 in negative and point No,2 in affirmative and while allowing the ejectment application directed the petitioners to vacate the demised premises within 30 days.
7. The said order was assailed by the appellants in F.R.A. No, 60 of 2011 before the learned District and Sessions Judge, Hyderabad, but could not succeed vide impugned judgment.
8. Heard Mr. M. Shafiq Khan advocate for petitioners, Syed Kamran Ali advocates for respondents and Mr. Faheem Hussain Panhwar, State Counsel.
9. Learned counsel for the petitioners has argued that the petitioners have apprehension that they will not be put in possession of the demised premises after getting it vacated by respondents on the ground of reconstruction. He has further contended that both the courts have erred in appreciating the evidence so far brought on record. He has contended that respondents have already constructed multi-storey building after construction of half of the above said Plot No,8/A of the property, in question; that the respondents have booked some shops and so many shops are still lying vacant. He .Has further contended that the respondents may be directed to deliver possession of a vacant shop in the said plot in lieu of demised premises till finalization of reconstruction over the plot in question.
10. On the other hand, Mr. Kamran Ali advocate for respondents/ landlord has argued that the orders of Rent Controller and Appellate Court are based on cogent reasons and sound principles, thus does not require any interference. He has further contended that the respondents have fulfilled the conditions required for eviction of the tenant on the ground of reconstruction as provided under section 15(2)(vi) of Sindh Rented Premises Ordinance, 1979. According to learned counsel, the petitioners first have to surrender the possession of demised premises and wait till completion of new building, then they claim their right protected under Sindh Rented Premises Ordinance, 1979. In support of his contention, he has placed reliance on the case of Mrs. Zareen and another v. Muhammad Nawab and others (1992 M LD 1690) and Wahid Khan and others v. Abdul Majeed Khan (1999 YLR. 2451).
11. I have considered the arguments advanced at bar and have gone through the relevant record.
12. On the point of default in payment of rent, the decision of Rent Controller has not been challenged by the landlord, therefore, it has attained finality. So far order of ejectment of the petitioners is concerned, is sought under section 15(2)(vi) of the Ordinance, therefore, it will be advantageous to reproduce the same as under:- "15(2). The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that
(ii) ....................
(a) ..........................
(b) ..........................
(c) ..........................
(iv) .............................
(v) .................................
(vi) the premises is 'required by the landlord for reconstruction or erection of a new building at the site and landlord has obtained necessary sanction for such reconstruction or erection from the authority competent under any law for the time being in force to give such sanction
13. From the plain reading of this provision of law it is clear that for availing the benefit of clause (vi) of section 15(2) of the Ordinance, the satisfaction of the Rent Controller is required only to the extent that landlord requires such building for reconstruction and has obtained necessary sanction for reconstruction or erection of new building at the site from the competent authority at the relevant time. In the instant case, perusal of the record reveals that the respondents in their rent application, have specifically pleaded in para 10 that the demised premises is required bonafidely for reconstruction of the project and the proposed building plan for reconstruction of multi-storey building has been approved and such approval has been obtained by them from the competent authority. In his affidavit-in-evidence respondent No,1 has produced permission and NOC of proposed building from the Director, Building Control Department HDA and has produced original approved plan before the trial Court, which is not denied by the petitioners. On the contrary, petitioner No,2 Syed Maroof Ali in his cross-examination has admitted that the site plan has been approved by the government in which shops and flats are to be constructed and work is going on the property where demised shop is situated and all tenants of shops and flats have already vacated the shops and flats. He has also shown his willingness to handover the vacant possession of the demised shop to the respondents, but demanded a new constructed shop in lieu thereof.
The admission on the part of the petitioners is sufficient for coming to a conclusion that the respondents had . Complied with the requirements of clause (iv) of subsection (2) of section 15 of Ordinance for seeking eviction of the petitioners from demised shops and there was nothing on record to establish any mala fide on their part. The contention of learned counsel for the petitioners that they may be accommodated by the respondents by putting them in possession of another shop before vacating the demised premises, is untenable at this stage. However, to safeguard the interest of the tenant, the legislature has already taken sufficient care to insert subsection (3) & (4) of section 15 of the Ordinance, which reads as under:-
(3) where the landlord who has obtained the possession of the premises for the purpose of reconstruction of the building or erection of a new building shall demolish the existing building within six months of the taking over of the possession of the premises or, as the case may be, commence the erection of the new building within two years of the taking over of the possession of the premises and in case the landlord fails to demolish the building as aforesaid, the tenant shall be entitled to be put into possession of the premises and for that purpose may apply to controller for an order in that behalf.
(4) Where the landlord constructs the building as aforesaid the tenant who was evicted from the old building may, before the completion of 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 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.
14. A simple look at the above provision of law clearly provides that in both eventualities one where a landlord seeks eviction on the ground of reconstruction but fails to demolish building or commence erection within the timeframe provided by way of law and the other where a landlord reconstructs the new building at site, a tenant has been provided right of re-induction in the building in terms of these subsections, therefore, in the above circumstances, mere on the apprehension petitioners cannot claim their induction in another shop in lieu of the demised premises, thus, to establish this right they may first surrender the demised premises and then wait till the completion of new building for making prayer before the Rent Controller in terms of this sub- sections (3) & (4) of section 15 of Sindh Rented Premises Ordinance.
1979.Reliance may be placed on the case of Mrs. Zareen (supra).
15. In view of the circumstances discussed above, the order passed by the Rent Controller and Judgment passed by Ist appellate Court appear to be based on proper appreciation of evidence and in accordance with law, therefore, the same are maintained and this petition being devoid of merits is dismissed accordingly.