' This appeal is directed against the order dated 31st March, 1982 passed by the Senior Civil Judge- cum-Rent Controller, Quetta directing appellant's eviction from shop No, 1-4/2, Surag Ganj Bazar, Quetta.
2. The facts in brief are that the appellant is respondent's tenant in the above described shop for about thirty years. Initially he paid a monthly rent of Rs, 15 but in the year, 1954 it was enhanced to Rs, 22 per month by mutural agreement.
3. In 1976, the respondent filed an eviction application seeking appellant's eviction from the shop on the grounds of default in the payment of rent and reconstruction. He explained that he desired to build a double storey building at the site of the shop with two shops, instead of one, on the ground floor and two rooms on the first floor, for which necessary arrangements had been made by him.
However, the former ground was later abandoned, as such, the case proceeded only on the second ground.
4. The appellant repudiated the respondent's averment and emphasising upon certain previous disputes and controversies between him and the respondent stated that his sole intention was to reap more benefits from this property than at present, and he in fact did not desire to raise any kind of construction. He explained that in the past thirty years or so, he sometimes demanded enhanced rent and sometimes demanded vacant possession of the shop for reconstruction purposes and that he also made efforts to dispose of the shop. All these incidents, as appellant's evidence also indicates, are of distant past and that is why Mr. Iftikhar Muhammad, learned counsel for the appellant has not discussed the evidence on record depicting these disputes.
5. The main evidence led by the respondent consists of the representatives of the Municipal Committee, Quetta who proved the site plan and building permit (Annexure Ail and A/2 filed alongwith the application) and further stated that on the basis of these documents the respondent could errect the new building at the site of the disputed shop. The other witnesses produced by him, as well as, his own statement also go to show that he was anxious to demolish the present structure and construct the proposed building for which he also had sufficient financial resources.
The evidence thus produced makes out a strong case indicating respondent's intention and means to take in hand the said project.
6. The evidence coming forth in rebuttal precisely goes to show that as far back as in 1954 and immediately thereafter the respondent's efforts had been to somehow yield more benefits than the rent of Rs, 15 and then Rs, 22 per month and to fulfil such desire, he sometimes required the appellant to vacate this shop so that he could construct a new building on the site and sometime 4 he demanded increase in the rent. One witness has also stated that he was also prepared to dispose of the shop. These are all happenings of distant past and as pointed out by me, Mr. Iftikhar Muhammad, learned counsel for the appellant did not discuss or mention them. Even if he had done so, it would not have made much difference because apparently there was all justification on the part of the respondent to have sought little more benefits from his property which is situated in a main shopping centre of the city and all what he realises from it, is muchless than what he might have been required to spend by way of annual repair, white-washing and taxes. Anyway, Mr. Iftikhar's main emphasis was on the point that the site plan showed that in place of one large shop, two small shops were intended to be constructed, which would cover the areas of 10 x 11 and 10 x 9 sq. Ft. Respectively, and that if the appellant was to be put back into vacant possession of one of these shops, he would not be getting that big a shop again as he was occupying at present.He tried to establish mal a fides of the respondent by this fact ; but I feel that the question of bona fides and mala fides is linked directly with the fact of reconstruction alone and not with the type and character of the building to be raised. There is sufficient evidence on record to show that the respondent wanted to reconstruct a building at the site of the present building and such evidence stands completely unassailed. Section 5(b) of the West Pakistant Urban Rent Restriction Ordinance, 1959 (hereinafter called "Ordinance of 1959") provides sufficient safeguard for a tenant and if the appellant liked, he could apply for his re-instatement as tenant in one of the two shops. Mr. Iftikbar's only contention is that even if the bigger shop was given over to him after reconstruction it would be muchless in area than the present shop. He placed reliance on Akbar Ali v. Zoaib and 5 others (1) and Shabir Hussain and another v. Sh. Muhammad Saeed and 2 others (2), to substantiate his argument that a tenant was entitled to be put back in possession of the property after re-construction exactly the same or as nearly as possible the same as he had vacated, both in terms of the area and location. There is no dispute with this proposition. But neither the law as laid down in the Ordinance of 1959, nor the authorities quoted above, indicate that the re- construction was to be so organized by the landlord that the tenant could get the premises covering exactly the same area and same location as be had left. That is also not possible looking to the technical difficulties in th construction that might arise, the type and design of building etc. The the present day need is of more and more commercial 'and residential accommodation. The factum of return from the building which a landlord would desire from his investment can also not be overlooked. Accordingly, the emphasis can only be to so accommodate a tenant that his losses if they cannot be avoided, may be minimum. In the instant case, the present building would be of Type-I as against Type VII hutment-like building and since a second storey is to be built on the existing site. I agree with Mr. S. A. M. Qadri, learned counsel for the respondent, that the construction would not be possible unless the present 23 ft wide shop, was bifurcated into two portions. This is, however, besides the other considerations, of which, I cannot lose sight. I am satisfied that the appellant if put back in possession of one of these shops, will be able to continue with his present C business or any other business that he might like to set up, therein, quite profitably as both those shops are of the normal size to be found in other parts of the city.
I do not, therefore, see any legal infirmity in the impugned order and dismiss the appeal with cost.
The appellant shall be at liberty to apply for {{FOOT NOTE}}
(I) 1981 CLC 592 (2) PLD 1976 Lah 109 {{FOOT NOTE}} one of the two shops to be constructed on the site in accordance with law and the Rent Controller shall preferably allow him the possession of th shop which is larger in size. The appellant shall vacate the present show within four months from today subject to his depositing rent in Court as per orders of the Rent Controller in this regard.