1. By this judgment I propose to dispose of Second Appeal No. 188 of 1978 and 219 of 1978. The two appeals have been filed by the two tenants of the building known as Dinsbaw Compound on Plot No. 18 and 19 (now sub--divided into Plots No. GK8/18/1 to 18/31.
2. I have heard Mr. Iqbal Hyder, the learned counsel for the appellants in Appeal No. 188/78, Mr. Hyder Ali Pirzada, Advocate for the appellant in Second Appeal No. 219/78 and Mr. S. M. Sadiq, the learned counsel for the respondent in both these appeals.
3. The respondent in the two appeals, who is the landlord of the' premises instituted ejectment cases against the appellants on the ground that the premises were required by them bona fide for reconstruction. These applications were resisted by the present appellants on several grounds and it was disputed that the application filed by the respondent was bona fide one. The Rent Controller after recording evidence in both cases allowed the applications and ordered eviction of the appellants from the premises in their respective possession. On appeal the judgment of the Rent Controller has been upheld. In the Second Appeals both the appellants have filed application under Order XLI, rule 27; C. P. C. Seeking permission of the Court to lead further evidence in the cases to show that after the order of ejectment was passed in favour of respondent 1, he sold away a portion of the plot to respondent 2 during pendency of this appeal and; therefore, the rent case was instituted malafidely. In reply to the application under Order - XLI, rule 27, C. P. C. Filed by the appellants the respondent in both the appeals admitted that the portion of the plot bearing No. GK-8/18/1 have been sold away by him to respondent 2 during the pendency of the second appeal in this Court.
(1) That the original sanction for building plans was obtained by the respondents from the Karachi Municipal Corporation in respect of Plots Nos. 18 and 19 measuring 7,673 Sq. Yards whereas after the sale of sub-divided Plot No. GK-8/18/1, measuring 2553 Sq. Yards, the total area of plot is reduced substantially and as such the original sanction of KMC which was for 7,673 Sq. Yards is no more valid and subsisting.
(2) That the sanction given by the KMC to the respondent for construc--tion of the building itself being a conditional sanction inasmuch as the respondents were required further to obtain a N. O.
4. C. From the city deputy collector before starting the reconstruction of the building, there was no valid sanction in the eye of law at the time when the application for eviction was filed before the rent controller and as such no order of eviction could be passed against the appellants.
5. It is contended by the learned counsel for the appellants that the sanction granted and the plan approved by KMC for reconstruction of the building on the old site related to an area of 7,673 Sq.
6. Yards whereas after the sale of a portion of the sub-divided plot the area of plot in possession of respondent stood reduced substantially and as such the sanction became void and unenforceable. In reply to this submission the learned counsel for the respondent submitted that there is neither any rule or by law of KMC nor any other provision of law which rendered a sanction issued by KMC void in these circumstances. The learned counsel further submitted that under building control rules of KMC the respondent was entitled to submit a revised plan in case of changes and deviations in the original approved plan for whatever reasons they may be. The learned counsel specifically- relied upon Bye-Law Nos. 21 and 25 of KMC Building Control Bye-Law 1975. Bye-Law 21 provides that it' upon making an inspec--tion of the under-construction building the Corporation finds that a building constructed by a owner is not in accordance with the plan approved by the Corporation then it may by a written notice require the person carrying out the construction works within a specified period to make such alterations as may be specified in such notice in order to bring the construction in conformity with the approved plan or to get an amended plan approved after complying with the requirements of Ordinance and the Bye-laws. In the event non-compliance of such a notice the Corporation is entitled to demolish so much of the work as may not be found in accordance with the approved plan or for which no amended plan is sanctioned by the Corporation. Bye--law 25 contemplates that if the building has been erected or re-erection and which is not in any manner in conformity with the plan originally sanctioned for the building then the owner is required on completion of such building to submit a completion plan showing the building exactly completed and deviation made therein from the sanctioned plan for approval of the Corporation. It has been admitted before me by the learned counsel for the appellants that on the portion of the plot already sold by respondent 1 to respondent 2 a multi- storeyed building has been erected by the new purchaser and till today no action has been taken by KMC for its demolition. In view of the above bye-laws referred by the learned counsel for the respondent I am satisfied that for reason of sale of the portion of plot by respondent the original sanction granted by KMC for reconstruction of building is not rendered void. If there be any deviation in the building from the approved plan, the respondent could apply for amendment of the original plan or otherwise the KMC could demolish such part of the building which is not in conformity with approved plan and for which a revised or a amended plan is net sanctioned by KMC. I, therefore, find no substance in the first contention of the learned counsel for the appellants.
7. The second contention of the learned counsel for the Appellants is that the sanction granted by the Corporation for reconstruction of the building was a conditional one and, therefore, unless the condition was fulfilled before the institution of the ejectment case the application for eviction was premature. The sanction letter produced in evidence shows that the respondent was required to obtained a NOC from the office of C. D. C. Before commence--ment of actual construction work. It is accordingly contended by the learned counsel for the appellants in the two appeals that unless this NOC was obtained by respondent there was no valid sanction in 'existence under the law, which was a precondition for institution of ejectment case on the ground of reconstruction. In support of his contention both the counsel for the appellants have relied upon the case of Aziz Begum v. Guarantee Life and Employment Insurance (PLD 1975 Lah. 594). In this case a learned Single Judge of the Lahore High Court held that where the application for eviction was based upon the ground of reconstruction and the sanction from the Municipal Corporation was not obtained prior to the institution of the application, the application was premature and was liable to be dismissed as such. It was also found by the learned Single Judge in this case that subsequent grant of sanction by Municipality could not cure the defect in the case. The case cited by the learned counsel was specifically referred to by the Supreme Court in the case of Qamar Din v. K.
8. Taleh Begum (1980 SCMR 514), and was overruled. In the Supreme Court case it was held that if the landlord reasonably and-- in good faith required the premises for reconstruction, it gives a cause of action to him for making an application for eviction and absence of a sanction from the Municipal Corporation could not defeat such an application, if such a sanction is subsequently obtained during the course of proceeding before the Rent Controller. The present case before me is on a much better footing. Admittedly before the institution of the ejectment application, by the respondent on the ground of re-construction, the respondent had obtained sanctions from the Corporation for the reconstruction of the building on the vid site. In the written statement filed on behalf of the appellants in the ejectment cases it was stated that even if the sanction is validly granted the appellants were not liable to be victed from the premises: . The fact that in the sanction letter issued by KMC there was a condition attached that before a starting the respondent was to obtain NOC from the City Deputy Collector's Office, could not render the sanction as void o defective in any manner. The requirement of section 13(2)(vi) of the Ordinance 'is only this much that the landlord shall have obtained from Municipal Corporation sanction for reconstruction of the building before evicting the tenant on the ground of reconstruction of the building. In the case of Qamardin, the learned Judges of the Supreme Court held in clear terms that proceedings before the Controller could not be defeated on account of absence of sanction if such a sanction is obtained by the Landlord before order of eviction is passed by the Controller. I therefore, find no substance in the contention of the learned counsel for the appellants that the proceeding before the rent controller instituted by the respondent for eviction of appellants on the ground of reconstruction was premature as the sanction granted to respondent by the KMC was conditional and subject to obtaining by the respondent a NOC from C. D. C. This plea of appellants counsel further loses its-significance as at the time of recording of evidence in the ejectment cases the required no objection certificate from C. D. C. Was obtained by the respondent and produced before the Rent Controller.
9. The third contention of appellants' counsel is that the building plan and the sanction letter produced in evidence before the Controller were not proved in accordance with the law. It is contended that in the absence of proof of the sanction letter and the building plan, the applications for ejectment were incompetent and should have been rejected by the Controller.
10. From the evidence on record it appears that production of building plans and the sanction letter in evidence was objected to by the learned counsel for the appellants. However, it is not mentioned as to what was the precise objection raised. There is no discussion in the order of Rent Controller with regard to the objection of appellant regarding admissibility of building plan and sanction letter. On the contrary the rent controller while discussing the relevant issue held in his order that genenuineness of these documents are not challenged before him. The learned counsel for the appellant in Appeal No. 219 of 1978 contended that in the written argument submitted before the Rent Controller the appellant had specifically challenged the admissibility of these documents.
11. However, I find that in the memo. Of appeal before the First Appellate Authority there was no complain by the appellant that he raised such a contention before the Rent Controller but it was not considered. These documents namely sanction as well as approved building plans were produced in original before the controller and have been duly exhibited in evidence and, therefore, I cannot allow the appellant to raise this objection for the first time in second appeal. The learned counsel for the respondent invited my attention to the case of Mst. Akhtar Sultana v. Dr. Abdul Rauf Naqvi (PLD 1978 Lah. 347). In this case in similar circumstances a contention raised on behalf of the appellant regarding formal proof of building plans in proceeding before the Rent Controller was repelled by a learned Single Judge of the Lahore High Court and it was observed relying on the case of Javaid Iqbal v. Rana Muzaffar Khan (1976 SCMR 229); that the strict compliance of the law of evidence cannot be insisted upon in proceeding before the rent controller. I, therefore, find no substance in the contention of the learned counsel for appellants that sanction letter and plans were not proved in evidence. Both Mr. Hyder Ali Pirzada and 'Mr. Iqbal Hyder, the learned counsel for the appellants in the end contended that the application for ejectment tiled by the respondent landlord was a mala fide inasmuch as the building was -in a very sound condition and after passing of the order eviction against the appellants, the respondents sold away a part of the land.
12. It was also jointly submitted by them that if the respondent sell away the remaining portion of land as well, the appellants may never succeed in getting back the premises. The contention raised by the learned counsel has no foundation. The mere fact that a portion of the land has been sold by the respondent during pendency of this appeal is not sufficient to hold that the application as originally filed was a mala fide one. Nor this circumstance is sufficient to support the fear of appellants that the respondentmay sell away the property to deprive the appellants from getting back the premises. The plot owned by respondent No 1 was a huge plot of 7,673 Sq. Yards and inspite of sale of a portion of the plot the respondent still possess the land over 5,000 Sq. Yards. Mr. Sadiq, the learned counsel for the respondents filed a written undertaking in both these appeals on behalf of respondents Nos. 1 and 2 stating that the respondents undertake to put the appellants in possession of the premises on reconstruction of building in accordance with the provisions of section 13(5-B) of the Ordinance I have recorded this undertaking offered by the learned counsel for respondents No. 1 and 2 in these appeals. There is no merit in these appeals which are accordingly dismissed with costs but appellants are allowed four months time to vacate the premises, on the condition that they shall continue to deposit the monthly rent in Court in accordance with the direction of Rent Controller.