' This appeal is directed against the order dated 1st August, 1979 passed by the learned District Judge Tharparkar at Mirpurkhas in Rent Appeal No, 17/79 whereby the order of the Rent Controller dismissing the ejectment Case No, 10/77 filed by the respondent, was set aside and the appellant was directed to vacate the premises in question.
1. The brief facts of the case are that the respondent/landlord filed an application for ejectment against the appellant under section 13 of the then West Pakistan Urban' Rent Restriction Ordinance, 1959 on 1st April, 1977 on the plea that the shop bearing No, 90/G-A situated at Bhansinghabad Mirpurkhas, of which the appellant is the tenant, is required by him for his personal and bona fide use and that the said building is in dangerous condition and that he wants to demolish the same and re-construct it according to the approved plan sanctioned by the Municipal Committee. The appellant/tenant contested the matter and denied the claim of the respondent.
2. The learned Rent Controller on the pleadings of the parties framed the following issues :-
(1) Whether the disputed shop is in dilapidated condition and is required for re-construction ?
(2) What should the order be ?
3. A little before the filing of the above case the appellant tenant had also filed an application (Rent Application No, 1/1977) under section 12 of the said Ordinance of 1959 pleading therein that on 11th November, 1976 the Engineer of the Peoples Municipality Mirpurk has issued a notice to him requiring him to get the roof of the shop in question repaired within a week "as the bricks of the shop are falling down due to its dilapidated condition".
' In that application the appellant/tenant prayed for an order directing the respondent/landlord to carry out immediate repairs to the shop in dispute.
4. The two applications R. A. No, 1/1977 (by the tenant for repairs) and R. A. No, 10/77 (by the landlord for ejectment), were however dismissed by the learned Rent Controller by a single order passed on 21st February, 1978.
5. Against the order of dismissal of his application the respondent/ landlord filed an appeal before the learned District Judge (Rent Appeal No, 17/79) which was allowed and the appellant was directed to put the respondent landlord in vacant possession of the shop in dispute on the ground that the same was reasonably and bona fide required for demolition and reconstruction.
' It may here be mentioned that against the order rejecting Rent Application No, 1 of 1977 seeking permission to carry out repairs, the tenant preferred no appeal.
6. The learned Advocate for the appellant/tenant in the first place argued that the sanction of the plan produced as Exh. 19 and the letter Exh. 20 from the Municipal Committee Mirpurkhas related to the property bearing No, A-9/G-4 Bhansinghabad, Mirpurkhas whereas the appellant is the tenant of godown which has been described by the respondent himself in his application as bearing No,.
90/G-A situated at Bhansinghabad Mirpurkhas. He accordingly submitted that the sanction for reconstruction of the building and the approval of the plan produced by the respondent related to some .Different property and could not be utilised and relied upon for the purposes of seeking his eviction from the shop in dispute.
' The above argument of the learned counsel however is not acceptable. The learned counsel for the respondent rightly explained that in his own application filed for carrying out repairs (R. A. No, 1 of 1977) the appellant had described the shop in his possession as bearing No, 90/G-A situated in Bhansinghabad, Mirpurkhas. The respondent in his (R: A. No, 10/77) application which was subsequently filed, therefore, gave the same number.
' The landlord (Abdul Samad) who was examined as P. W. 1 Exh. 18 in his evidence in examination- in-chief deposed that the appellant is his tenant in respect of the shop bearing No, 90/G-A wherein the appellant is running a hotel and that he has got the plan. (Exh. 19) sanctioned from the Municipality for construction of whole of the said shop. The letter granting the sanction was also produced as Exh.
20. In the cross-examination however appellant neither challenged the identity of the shop nor any question was put that the sanction of the plan granted by the Municipality and produced as Exhs.
19 and 20 related to some other building/shop. In fact no such objection was taken. Even in the written statement filed by the appellant. No issue was pressed challenging the validity or raising dispute that Exhs. 19 and 20 related to any other building/shop. In view of these facts, the learned counsel was unable to show any valid reason to justify the exclusion of Exhs.
19. And 20 from the consideration or to hold that the same related to any other property. In the circumstances the learned Rent Controller was not justified in taking into consideration the arguments advanced beyond the record or the pleadings and observing that the sanction letter and the approved plan did not relate to the premises in dispute. The finding of the learned lower appellate Court on the other hand, that the approved plan relates to the disputed shop in respect of which the other side had never raised any objection, is fully justified, and supported by evidence on record.
7. The learned counsel for the appellant then attacked the order of the learned lower appellate Court on the ground that the respondent had failed to prove that he bona fide and reasonably requires the premises for purposes of reconstruction. In support of his contention reliance was placed upon the fact that the Rent Controller himself had visited the site and found that the shop in question is in very good condition inasmuch as that its four walls are whitewashed, that it has a roof of tin, is not in dangerous condition, and thus it was observed that the presumption was that the landlord by way of these ejectment proceedings intended to evict the tenant who is running a hotel business in the said premises and earning his livelihood. The observation of the learned Rent Controller mentioned above based upon his site inspection and the presumption drawn by him that the landlord does not require the premises as the same is not in dilapidated condition, are open to serious objections. In the first place it is not the requirement of the law that before the landlord could seek eviction of a tenant from the premises on the ground of reconstruction it should be established that the premises are in dangerous and dilapidated condition. On the contrary it has been held that development which would substantially improve the property would be a relevant ground for seeking eviction. Reference may be made to the case of Haji Moula Dad v.
Sardar Khan.
' Secondly, the honourable Supreme Court of Pakistan in the case of Muhammad Akbar v. Dr. Muhammad Rqfique, observed that the requirement of law is that there should be sanctioned plan of construction or reconstruction of the property. Reference may also be made to the case of Muhammad Akbar v. Faiz Muhammad where the learned Judge in a case where ejectment was sought on the ground that the landlord required the building reasonably in good faith for purposes of reconstruction after discussing the case law on the subject directed the ejectment of the tenant holding that :- "During arguments, the appellant's learned counsel unequivocally stated that the appellant has no intention to completely dislodge the respondents and that new business units would be erected in the building they may occupy the same in accordance with the provisions of section 13(5-B) of the Ordinance. I do not think that there is anything unreasonable in the appellant's plans to erect a new building in place of the existing one or his conduct is mala fide. The property is situate in a business centre and obviously by erection of the new building, its value and rental income will increase. The appellant tendered in evidence the sanctioned building plan and also appeared in the witness- box. The averments made in the ejectment petitions stood corroborated by his testimony. In the circumstances of the case what other evidence of his good faith and reasonableness of the requirement to erect the building could have been produced by him."
8. The learned Advocate for the respondent Mr. Anwar Jamal frankly stated that the landlord/respondent shall put the appellant in possession of the shop after the same has been reconstructed. The bona fide and reasonableness of the respondent in view of this statement, therefore, can hardly be doubted. It is evident that the landlord does not want to borass the tenant.
It may also be mentioned here that the law makes sufficient provisions for safeguarding interest of the tenants by incorporating penal provisions in case the reconstruction is not carried out after the possession has been obtained through ejectment proceedings.
9. Lastly I may clarify here that the respondent through his Counsel has given undertaking that he shall put the appellant in possession of the newly, constructed shop. The tenant/appellant shall be liable to pay rent for the newly, constructed shop as may be mutually agreed upon between them.
In case of their failure to reach such an agreement the appellant shall be put in possession of the shop in the new building on payment of rent to be determined by the Rent Controller.
10. Subject to the observations made as above, this appeal stands dismissed with no order as to costs.
' The appellant is granted six weeks' time to vacate the premises. PLD 1972 Quetta 39 1980 SCMR 483 1982 CLC 9821 2 3 1 2 3