' These three appeals are directed against the common judgment of Xth Senior Civil Judge and Rent Controller, Karachi, dated 10-1-1982 announced in Rent Cases Nos. 2156, 2157 and 2158 of 1978.
By that judgment the application for ejectment made by Mst. Wasim Begum, respondent against her three tenants, Abdul Salam, Ghulam Muhammad and Merajuddin was allowed.
2. The respondent is the owner of Block No, A-70 situated at Khudadad Colony, Karachi and the appellants are her tenants in respect of three different cabins. The respondent had claimed ejectment of her tenants on the ground that they have failed to pay rent from December, 1977 and further on the ground that she wanted to construct a house on the said plot after demolishing the present structure and such map had been approved by the relevant authorities with the condition that the cabins in the disputed premises must be removed before the construction of the building and that premises were required for personal bona fide use and further on the ground that the tenants were nuisance for the neighbors and the passerby. The application for ejectment was resisted by the appellants denying the allegation of default in the payment of rent and they submitted that L/L had refused to accept the rent and they started depositing the rent in Court.
They further submitted that the proceedings of the ejectment were male fide.
3. The issues of default, nuisance and requirement of premises for personal bona fide. use were framed by the Rent Controller in two cases but in Rent Case No, 2157/78 issue of default was not framed.
4.. Mst. Wasim Begum examined herself and produced approved plan, photo stat copy of lease, identity card, education certificates of children as well as notice from K.D.A. and the report of police and then closed her side. The appellants examined themselves individually in their cases and then closed their side. Issue No,1 was decided in the negative and it was held that there was no default in the payment of rent. Similarly issue No,2 was decided in favour of the appellants as nuisance was not established.
5. Issue No,3 in respect of personal bona fide use was decided as 'an issue of personal bona fide use and construction of the building thereupon. The Rent Controller considered that the respondent had nine members of family and has only two bedrooms, one of which is occupied by her with her husband and the other is occupied by her four sons while the three daughters sleep in the study room. The Rent Controller also took into consideration her deposition that she wanted to construct a new building after removal of the cabins and has got approved plan of K.D.A. with the condition that new building will be constructed after the disputed cabins were removed. It had also been deposed by the respondent that notice had been issued by K.D.A. to demolish the unauthorized cabins within three days and that the cabins in question were required to raise boundary wall which was so essential for safety of the house of the respondent. In view of these facts the. Rent Controller was of the view that the respondent has every right to go in her property and that production of approved plan, was sufficient proof that premises in dispute were actually required by the respondent for construction of a new building and on that ground he allowed the ejectment.
6. Mr. H. A. Rehmani, counsel for the appellants raised several contentions. He submitted that the question of personal and bona fide use of the premises had not been raised by the respondent in her application. This submission is correct. However, this is a very technical objection because an issue in respect of personal requirement had been framed by the Rent Controller and the respondent had made her statement after framing of issue in respect of her personal requirement and, therefore, the appellants were not prejudiced in any manner. This submission is, therefore, rejected. It was held in 1980 SCMR 776 that landlord's claim for reconstructing his premises was not necessarily inconsistent with or reacting against his claim of requirement of demised premises for his own use. I respectfully agree.
7. Mr. Rehmani then contended that there was no approved plan for reconstruction or erection of a new building on record as a mere completion plan has been filed by the respondent. This submission appears to be correct. The plan on record shows an existing structure where two rooms, a drawing/dining room, kitchen and a small room are shown to exist and said plan shows that three cabins of the appellants are existing on the compulsory open space shown in the said completion plan. A completion plan is different from a plan for reconstruction or erection of a building. Even if we take into consideration the personal bona fide requirement of the respondent requiring more accommodation for herself then also the approved plan allowing further construction was a necessity. A mere completion plan of the present structure cannot be a substitute for a plan sanctioning erection or re-erection of a building after it is demolished. In this view of the matter ejectment could not be ordered of the appellants on the basis of a mere completion plan particularly when it did not show what further construction was to be raised.
8. Moreover, the personal bona fide need of a landlord can be considered only in respect of existing premises which are to be vacated by a tenant and in this case it was not a case of the landlady that she will occupy the present cabins of the appellants -nor had she produced a plan sanctioned by the Municipal Committee or K.D.A. showing that new construction was to be raised on the area which was to be vacated by the present appellants. It, therefore, appears to me that the application of the respondent on the basis of a completion plan was not in order unless and until a plan had been got sanctioned for erection of further structures or for erection of a structure at the site where the present cabins are. That having not been done the applications were not properly substantiated.
Mr. Ashraf Kazi had urged that no distinction should be made between a completion plan and a plan for construction. I do not agree. The completion plan merely shows that existing structure has been approved, while the plan for construction or re-erection means that authority is allowing new structures to be raised and hence the two are quite different. The requirement of law is the approved plan for construction or re-erection and so the plan showing approval of existing structures cannot be considered to fulfil that requirement.
9. Mr. Kazi, Counsel for the respondent had submitted that the wall had to be raised and without the wall the present house of the respondent was unsafe. The case has not, however, been tackled on that basis by the Rent Controller. Nor has the respondent pleaded that the cabins of the appellants would result in cancellation of her allotment or demolition of her super structures by K.D.A. and hence these submissions are of no force. The respondent can secure her premises by raising a wall behind the disputed cabins if she is inclined to do so.
10. I can understand the difficulties and inconveniences of the respondent as she has a large family and not enough space for living but, she has herself to blame for this situation as she filed an application for ejectment without having the plan for further construction sanctioned. Accordingly these appeals are allowed and the ejectment order issued against the appellants is set aside.