MUHAMMAD NAEEM AIVWAR, J.- Through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has questioned the judgment and decree of the learned Additional District Judge/Izafi Zila Qazi-II/Model Civil Appellate Court, Swat dated 13.04.2021, whereby his Rent Appeal No.IIRA of 2021 against the judgment and decree of the learned Rent Controller (Civil Judge/Illaqa Qazi-V, Swat) dated 21.01.202] allowing the ejectment application of the respondents/landlords, was dismissed.
2. Short facts of this petition are that Haji Badshah Khan, now dead, alongwith his brother Haji Daleel Khan and others filed an application for ejectment of present petitioner and others before the learned Rent Controller u/s 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (the Ordinance of 1959) from the rented premises i.e., ,hotel. with shops as described in the headnote of the application on the ground that they are joint owners of the property which was rented to the petitioner and others. It was alleged that the petitioner is in Possession of a Tandoor alongwith 12 rooms ; and a lawn, Mujeeb-ur-Rahman is in possession of a shop while Haider Ali is in possession of a garage, however, the instant petiiiori has been filed by the petitioner, whose is in possession of Tandoor, 12 rooms and a kitchen, wherein he is running a hotel known as "Akbaray Cafe". It was averred that the building is in dilapidated condition and the respondents/ landlord are intending to reconstruct it, for which, they had submitted an application to Tehsil Municipal Administration, Swat and proper sanction/ approval had been granted. A plea for personal need of the rented premises was also alleged by the respondents! landlords. The application was resisted by the present petitioner/ tenant on different legal and factual objections through his reply including the one that at the time of creation of tenancy, the period of tenancy was specified for 40 years, thus, till expiry of this period of tenancy, he could not be ejected from the premises. The learned Rent Controller from the divergent pleadings of the parties framed the following issues: 1.Whether the petitioners have got cause of action?
2. WhCther the petitioners intend to demolish the building and reconstruct it and for this purpose required possession of the suit premises?
3. Whether the rent agreement between the parties is for 40 years and before that respondents could not be ejected?
4. Whether petitioners arc entitled to relief as prayed for?
5. Relief.
On completion of Cvidenbe, the learned Rent Controller through its judgment and decree dated 21.1.2019 allowed the application with directionsto the petitioner to vacate the premises within a period of iWo months. The petitioner, being aggrieved from the said order, filed an appeal but his appeal was dismiss6d by the learned Additional District Judge/Izafi Zila Qazi-II, Swat vide judgMent and decree dated 13.04.2019, hence, this petition.
3. Learned counsel for the petitioner mainly contended that the petitioner is in possession of the rented premises since long, as such, he has imprcii/ed it by spending a huge amount, for which,' the learned Rent Controller and learned Appellate Court have not given any findings in the impugned judgments and that before expiry' of the tenancy period of 40 years, in accordance with proviso to section 13 of the Ordinance of 1959,. the application of the reSPondents was not competent, thus, the impugned judgments of both the learned fora below are not in consonance with law and hence same 'require reversal.
4. Learned counsel representing the respondents/ landlord supported the impugned judgments and decrees.
5. Arguments heard and record perused.
6. C.M 1668-M12021 & 1795-M/2023: Though these applications, the petitioner has sought permission for placing on file the documents appended therewith, which as per his contention are necessary for just and appropriate decision of the controversy in hand. Ahnost all those documents are attested copies from the judicial record besides the contents of the applications were duly verified on oath by the deponent through his affidavits, thus, these applications are allowed and the documents annexed therewith are hereby read as part and parcel of the instant petition.
7. Insofar as the first contention of learned counsel for the petitioner that tenancy was for a period of 40-years i.e., fixed term and before the ekpiry of period he could not be evicted in consonance with the proviso to. section 13(3)(ii) of the Ordinance of 1959 but it is an admitted fact that there is no written rent agreement between the petitioner/tenant and respondents/landlords, however, while cross examining the witnesses of respondents/landlords, it was brought on record by the present petitioner that he is in possession of the rented premises since 1984. Apart from this nothing is available on record to fortify the contention of the petitioner for the purpose of creation of tenancy which was for the petitioner to prove that the tenancy was for fixed term and under section 13(3)(ii) of the Ordinance of 1959, he could not be evicted before the expiry of the agreed period, hence, the contention of learned counsel for the petitioner for resisting the application on the aforesaid plea is misconceived.
8. Reconstruction of the premises by the respondents/ landlords was another ground of the landlord. In this regard an application was submitted by them to TMA on 06.03.2013 and it was approved on 20.03.2013, copy of same is available on record and this point has not been negated by the petitioner. Even if at the time of filing of application sanction for reconstruction could not be sought or granted, the application could not be dismissed on this sole ground. In such an eventuality during pendency of the application the proper permission could be sought and if granted the same shall be regarded as valid ground for eviction of the tenant. Section 13(2)(vi) of the Ordinance of 1959 reads as under: "13(2)(Vi) the building or rented a 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 erection from the Municipal Corporation, the Municipal Committer, the Town Committee or the Provincial' Urban Development Board 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 in 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 or rented land and may extend such time so as not exceed four Months in the aggregate."
It is also not the requirement of the law for the landlord to establish that the demised premises are in dilapidated or in dangerous condition becLse the landlord has a right to improve his property despite the building may not be in dilapidated condition, however, section 13(2)(vi) of the Ordinance of 1959 has provided a mechanism which manifests that the building or rented land is reasonably and in good faith required by the landlord for reconstruction or erection of a building on the site, and the landlord has obtained necessary sanction for the said reconstruction from the concerned authority for the area where such building or rented land is situated. In the case of "Oamar Din Vs. Mst. K.Taleh Bekum" (1980 SCMR 516), the apex Court has 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 authority concerned could not defeat the application, if such a sanction is subsequently obtained during the course of proceedings before the Rent Controller," In the matter in hand the respondents have been granted permission for reconstruction of the rented premises to the respondents.
9. Moreover, during the course of arguments, learned counsel for the petitioner, while making a reference to cross examination of PW-1, submitted at the bar that civil litigation is still pending adjudication before the Court, thus, till determination of the rights amongst the owners of the rented premises, the ejectment order could not be passed against the petitioner. It is pertinent to mention that during the course of arguments, Malak Ahmad Jan, Advocate came to the rostrum and submitted at the bar that other cases i.e., W.P 1197- M/2021, W.P No.1196-M/2021, C.R No.11-M12018 & C.R No.538-M12013 are pending adjudication before this Court, however, this fact has not been disputed by the petitioner that the respondents are 'landlords and petitioner is their tenant in the demised premises then irrespective of pending adjudication of the disputes pertaining to the title amongst the owners, not only the appliCation could be filed but the same could be allowed because there is no restriction in accordance with the provisions of the Ordinance of 1959 for seeking recovery of possession of the rented premises by the landlord from tenant. It is a matter amongst the owners whose rights shall be determined in pending adjudication of the petitions before this Court either through writ petitions or civil revisions, with which, the present petitioner has got no concern and he could not resist the application, vide which, the landlords are seeking recovery of possession of t e premises for the purpose of its reconstruction. It is worth to mention here that the factum of creation of tenancy and existence thereof has been admitted by the petitioner (RW-1) in his cross examination by deposing that: It has also not been disputed by the petitioner that the construction is old one, which is intended to be reconstructed for which a proper approval has been granted by the concerned authority.
10. Last objection of the learned counsel for the petitioner was that the petitioner has improved the rented property but neither this point was specifically mentioned in the written reply by the petitioner neither in preliminary or factual objections nor this contention was reduced into an issue for sole reason that it was not raised at preliminary stage before the Rent Controller. Without specific plea before the learned Rent Controller in the pleadings, at this stage, neither the improvements, if any, made by the petitioner could be determined nor the petitioner could be compensated for any such alleged improvements. As per his version, he is. in possession of the rented premises since 1984 and now when the owners are intending to improve it by making a fresh construction being in dilapidated condition, in accordance with the provisions of section 13(3)
(ii) of the Ordinance of 1959 and they have also obtained sanction from the authority concerned and this fact has also not been disputed by the petitioner, the petitioner cannot be allowed to remain in possession of the rented premises. Furthermore, the respondents have filed the application for eviction for the purpose reconstruction in 2013 and the petitioner is resisting the same but without any legal ground and the points raised at this stage cannot be entertained by this Court while sitting in writ jurisdiction.
11. Both the learned fora below have properly laid the controversy to rest through impugned judgments/orders, thus, the instant petition being without substance is hereby dismissed. The petitioner is directed to hand over the vacant possession of the rented premises to the landlords/ respondents within a period of one month from today and after expiry of said period of one month, the respondents/ landlords can get execute the ejectment order through the learned Rent Controller by filing of execution petition. No order as to cost.