MUHAMMAD NAEEM ANWAR. This single judgment shall also decide writ petition No. 2335/2014 tided Sardar Hussain vs. Haji Hafiz Ullah as both the petitions are the outcome of the application submitted by the petitioners before the Rent Controller whereby the petitioners were seeking ejectment of the respondent No. 1 of the instant petition on the ground of (i) default in payment of monthly rent, (ii) default in payment of monthly utility Gas consumption charges, (ii) bona-fide personal need, (iv) construction of the shopping mall/plaza by demolishing the whole old Faisal market shop, including the suit shop, with a recovery of monthly rent at the rate of Rs. 45000/- per month, recovery of Rs. 2,95,340/- outstanding against the non-payments of the utility charges and granting direction to respondents 2 & 3 for suspension of gas connection to Afghan Hujra hotel and rendition/setdement of accounts in respect of previous gas consumption on the plea that they are owners of the Faisal market, situated at Malakand Chowk, new Bus Stand, Mardan, Telisil and District Mardan, wherefrom shops, which were handed over to respondent No.1, were being used as hotel, known as Afghan Hujra on payment of monthly rent of Rs. 45,000/- per month by providing all basis necessities i.e., supply of gas, electricity etc, but the respondent No.1 (tenant) has not paid the monthly rent with effect from September, 2018 till April, 2019, despite his request and issuance of written notice sent under registered A/D card and also it was the duty of the tenant not only to pay the monthly rent but also to deposit the amount of the water charges, gas, electricity and telephone bills based on facility provided and consumed but he defaulted. The application was resisted by respondent No.1 (tenant) on different legal and factual objections with a plea that he has paid Rs. 14,00000/- (fourteen lac) as surety to the petitioner but also, he himself installed the electricity and gas meter and was paying utility bills regularly and, lastly, he averred that he has made construction/improved the property by spending huge amount, thus, the ground taken by the petitioners (landlords) were frivolous and baseless. He requested for dismissal of the application. The parties were directed to produce evidence to prove their respective contentions, which was, accordingly, produced by the parties. After completion of the evidence and hearing of the parties, vide judgment dated 03.06.2023, learned Civil Judge-XII/Rent Controller, disposed of the ejectment application in the following terms: "The tenant shall return vacant possession of the suit shop by or before the expiry of 30 days. The landlord, after deduction of the utility dues he has paid and proved under issue No. 3, i.e., Rs.
2,95,340/-, return the residue of the security deposit i.e., Rs. 14,00,000/, He shall also pay an amount of Rs. 14,70,000/- as reimbursement for structural improvements made to the tenement with his consent by the tenant About the controversy surrounding the utility dues, upon conclusion of pending litigation around the utility bills, the tenant shall ensure that no outstanding dues are left against the premises for the period in which it was in his occupation under tenancy that is until his eviction consequent to this order.
2. Both the parties being aggrieved, questioned the judgment of the learned Rent Controller dated 30.06.2023, through their separate appeals i.e., appeal 02/RCA and 40/RCA of year 2023. The learned appeal court through consolidated judgment dated 20.11.2023 modified the findings of the learned trial court, reversed the judgment to the extent of alleged security deposit of 14,0000/- and respondent No. 1 was held entitled for the improvement but at the present market value of the expenditure incurred by him while rest of the judgment was maintained. The petitioner has questioned the judgment and decree of the courts below to the extent of construction allegedly made and improved the property whereas Sardar Hussain respondent No.1 has challenged the order of the ejectment through comiected writ petition 2335- P/2024, hence, both are being disposed of through this single judgement.
3. Arguments heard and record perused.
4. The ejectment application was based upon the ground provided under the law, i.e., default in payment of monthly rent, default in payment of monthly gas consumption charges and utility bills.
Pertinent to mention that neither relationship of respondent No.1 with the petitioners nor rate of monthly rent i.e., Rs. 45000/-per month has been disputed by either side. Likewise, though the petitioners alleged default in payment of the monthly rent, however, the record reflects that the default has not been proved to the extent of the payment of monthly rent and this fact has been admitted by the counsel for the petitioners before this court during the arguments but it is an admitted fact that the amount outstanding against the consumed electricity and gas, amounting to Rs. 2,95340/-, has been paid by the petitioners, which was the liability of the respondent No.1 in terms of sub clause (i) of second proviso to sub-section 2 of section 13 of Urban Rent Restriction Ordinance of 1959 which was included in the defmition of "rent" and has been proved to have been paid by the landlord (petitioner) instead of tenant (respondent No.1) and the non-payment of utility bills during the period within which the rented premises are in possession of tenant is default especially when nothing contrary has been brought on record by the tenant (respondent No.1).
Reliance is placed on the case of "Badruddin vs. Muhammad Yousuf' (1994 SCMR 1900), "Mst.
Rehana BeRum vs. Mst. Shazufta" (1995 SCMR 323), "Abdul Gha oor vs. Mst. Amtul Saeeda" (1999 SCMR 28) and "Sher Atka,: vs. Sheikh Anjum lqbar (PLD 2004 SC 671). Tenant was bound to maintain the rented premises through payment of monthly utility bills, which amount has been paid by the present petitioners and the findings to this effect were maintained by the learned appeal court. Neither this payment has been disputed by respondent No.1, nor could he provide any justification for nonpayment of the utility bills. Hence, in view of non-payment of utility bills, respondent No.1 has committed default. Though, the petitioners have taken the plea of personal need, but they have not been able to prove it. In their evidence, even neither they could provide details of the business intended to be started by them nor could any particular thereof be suggested by them even before this court, rather they have pointed out their intention to reconstruct the property after its demolition, thus, the ground to the extent of personal need has not been proved and on this ground the respondent No. 1 could not be directed to vacate the premises.
5. Reconstruction of property is also the prerogative of the landlord but once this plea is taken by the landlord, he is legally required to get the permission from the authority concerned for the purpose of reconstruction of the rented premises and, undeniably, in the instant petition, no such permission was brought on the record. There is no restriction for seeking the eviction of the tenant on the ground of reconstruction of the demised premises subject to the conditions as provided in section 13(2)(vi) of the Ordinance of 1959, which 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 Committee, 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 because 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. Furthermore, section 13(2)(vi) of the Ordinance of 1959 makes it obligatory for the landlord to obtain necessary sanction for reconstruction or erection of new building from relevant authorities at the time of filing of ejection/eviction application or even during its pendency but said provision does not require it to be renewed again and again before starting the actual process of reconstruction. In the case of "Qamar Din Vs. Mst K Taleh Begun" (1980 SCMR 516), the apex Court has held that "if the landlord reasonably 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." Moreover, shops in question in possession of the respondent No.1 are not the only shops in the plaza rather there are other shops which are in possession of the other tenants and until the entire property is vacated from the tenants neither construction is possible nor the respondent No.1 could be directed to hand over vacant possession of the rented premises on the said ground. The ground of reconstruction by demolition of the earlier constructed portion was subject to the permission from the competent authority and until any such permission is granted, he could not be directed to vacant the premises.
6. Insofar as the amount decreed against the respondent No.l in favour of the petitioners, i.e., Rs.
295340/- is concerned, as same has not been disputed, thus, the findings of both the courts below are maintained to that effect. The controversial aspect, raised before this court, was the amount allegedly incurred by the respondent No.1 on the construction/ improvement of the shops by converting it into hotel for which the respondent has made reliance on Ex.RW 1/44 and Ex.RW 1/45. It was one of the grounds of the tenant that he has paid rupees fourteen lac as security to the petitioners and same is outstanding against him for which the decree was granted against the landlord (petitioner) but after filing of appeal, respondent No.1 has made a statement that no such amount has been paid by him against alleged security. Statement was recorded before the appeal court and being based upon the statement the findings of the learned trial court to the extent of security of rupees fourteen lac were reversed and this fact has been admitted by respondent No.1 before this court, however, he alleged that he has spent an amount of Rs. 1470,000/- on improvement of the property for which an agreement was executed on 05.06.2006 i.e., Ex.RW 1/14.
Since it was the plea of respondent No.1/tenant, therefore, such plea was required to be proved by him but, undisputedly, neither scribe, nor witnesses/ oath commissioner or notary public, has been produced before the court. This document revolves around the alleged liability of petitioners/landlords pertaining to the alleged improvement and costs on the rented premises but since the grounds taken by the respondent No.1 were factual in nature, thus, were required to be proved by tern. Though, respondent No.1 has admitted this fact that he could not produce any witness, however, he contended that the plea of improvement was categorically taken by him in his written statement and was not negated, as such, this shall be taken into consideration as admitted for which he referred Para No. 6 of legal objection and Para 10 of factual objection. Insofar as preliminary objection of Para 6 is concerned, it was about the deposit of rupees Fourteen lac as security for which he has made a statement before the appeal court that no such amount was ever paid him and now turning to Para 10 of the reply of the facts wherein he has taken the plea of agreement, dated 29.03.2008, has been executed for the purpose of construction and permission thereof, this contention of respondent No.1 is repelling to the date on which Ex.RW 1/44 was allegedly executed. The date of agreement mentioned in Para 10 of the fact of reply is 29.03.2008 whereas at the foot of the agreement Ex.RW 1/44 it is 05.06.2006, whreas Ex.RW 1/44 was to the effect of rupees Fourteen lac as security, thus, it has got no concern with the alleged improvement made by him or the cost incurred against the improvement. Thus, the plea taken by the respondent No.1 for improving the superstructure of the rented premises has not been proved, however, the significant aspect of the instant matter is the statement made before this court by the son of petitioner No.1 as petitioner No.1 has died during pending adjudication of the instant petition and list of his legal heirs has been placed on record through CM No. 107. Hadayat Ullah, one of the sons of petitioner No.1, is before the court who has admitted that he is in possession of rupees fourteen lac of respondent No.1 and is ready to pay it to him provided the possession of the rented premises is handed over to him. Irrespective of the waiver on the part of respondent No.1 before learned trial court and his inability to prove the cost of improvement allegedly made by him with or without permission of the petitioner, the clean burst stance of the son of petitioner No.1 requires appreciation and, thus, respondent No.1 is held entitled for recovery of Rupees Fourteen lac which shall be paid by Hadayat Ullah, one of the sons of the deceased petitioner No.1. Thus, viewing the submission of the learned counsel for the petitioners, grounds taken in the application, evidence recorded before the Tribunal/Rent Controller, the statement of respondent No.1 before the appeal court, the admission of the son of petitioner No.1 before this court, the payment of Rs.295340/- as outstanding amount of utility bills by the petitioners, both these petitions are disposed of in the following manner:-
(i) One of the grounds of nonpaym ent of utility charges has been proved against respondent No.1, as such, he is held responsible to hand over vacant possession of the rented premises to the petitioners and, thus, the petitioners are entitled for decree of recovery of possession of the rented premises.
(ii) In view of the stance of the sons of petitioner No.1, respondent No.1 is held entitled for recovery of rupees fourteen lacs.
(iii) Ground of personal need, default in paym ent of rent, reconstruction of the property has not been proved by the petitioners.
(iv) Respondent No.1 is given three months' time from today to vacate the rented premises and hand over its possession to the son of petitioner NO. 1 from today by cleating all the utility bills till handing over of the possession of the rented premises and upon transfer of the possession, the son of petitioner No.lshall pay the amount of Rs. Fourteen lacs as admitted by him.
(v) The plea of re-construction has not been proved because neither the petitioner has obtained necessary permission for reconstruction prior to filing of application nor during pendency of the case till today any such permission has been placed on record. No order as to costs.