' Facts as available on record and necessary for the disposal of present writ petition are as follows :- ' Mst. Munawar Sultana filed an ejectment petition under section 13 of Punjab Urban Rent Restriction Ordinance, 1959, as amended for eviction of Messrs Service Industries (Lahore) Ltd. From portion of a property bearing survey No, P. 276 Narwala Road, Dhobi Ghat, Faisalabad, on the ground that the property in occupation of the tenant was bona fide and in good faith was required for re- construction. The proposed construction was described to be beneficial to the interests of the petitioner and her family. The said petition was resisted by the tenant. It was stated in the written statement filed, that the petition for eviction lacked bona fides. It was further averred in the written statement that the premises in dispute were leased out for a period of 10 years commencing from 5th February, 1978 to 5th February, 1988 at agreed rate of Rs, 700 per month as rent. In view of this agreement it was stated that plea for constructing a chaubara on the roof of the building tenanted by Messrs Service Industries was a camouflaged device to undo the effects of agreement of lease which was to subsist under all circumstances for a period of 10 years.
2. Issues recorded in Urdu when rendered in English are as follows :-
(1) Whether the petition is mala fide ? OPR.
(2) Whether the petitioner has no cause of action to bring this petition ? OPR.
(3) Whether the petitioner is in personal bona fide need of the property in dispute for reconstruction ? OPA.
(4) Relief.
' Parties produced their evidence before the learned Rent Controller. Vide order, dated 30th November, 1983, learned Rent Controller, Faisalabad found all the issues in favour of the landlady and consequently proceeded to order eviction of the tenant on the ground o. Bona fide need for reconstruction of the premises in accordance with the approved building plan of Corporation.
Appeal filed against the order of eviction was dismissed by learned Additional District Judge, Faisalabad vide his appellate order, dated 9th January, 1984. All the findings recorded by Rent Controller in his order, dated 30th November, 1983 were affirmed in appeal.
3. Messrs Service Industries, have assailed the order of eviction passed by Rent Controller, subsequently affirmed in appeal by learned Additional District Judge through this writ petition with prayer that both the above stated orders be declared to have been passed without lawful authority.
4. I have heard learned counsel for both the parties and perused the available record.
5. It has been contended by learned counsel for petitioner that the premises were taken on lease from Mst. Munawar Sultana its owner for a fixed period of 10 years w. e. f. 5th February, 1978. This period of tenancy in the normal course would end on 5th February, 1988. Lease-deed Exhibit R. I.
Was placed on the file of Rent Controller. It was agreed between the parties which agreement stands incorporated in the lease-deed dated 5th February, 1978 that the lessor shall not seek ejectment of the lessee on the ground of self-requirement for her personal use or use of the male children. Tenant's peaceful possession in the demised premises was guaranteed for a fixed period of ten years vide clause 9 of the lease agreement referred to above. The terms of the lease agreement for facility of reference are quoted below in extenso "This lease Deed made at Faisalabad this 5th day of February, 1978 between Mst. Munawar Sultana wife of Dr. Mukhtar Ahmad Khan Lodhi resident of P-276 Narwala Road, Dobi Ghat, Faisalabad (hereinafter called the Lessor) which expression wherever the context so admits shall include his legal representative, administrator and assigns of the one part.
' Messrs Service Industries (LHR) Ltd. Gulberg Lahore Manufacturer of Service Shoes incorporated under the Companies Act, 1913, having its registered office at Gulberg Colony, Lahore (hereinafter called the Lessee) which expression wherever the context so admits shall include its successors and assign of the other part.
' WHEREAS the lessor as the owner of the Building No, P. 276 bearing property No, P. 276 Narwala Road, Dhobi Ghat, Faisalabad (hereinafter referred to as the demised premises) has agreed to lease out and the lessee have agreed to take the same on lease on terms hereinafter appearing.
' WHEREAS the lessee has reported to the lessor that neither the lessor nor any of her male children require or is likely to require to lease premises for their own use.
' AND WHEREAS the lessee has agreed to take the premises on lease and to renovate the premises at his own cost on the express understanding that lessor will not seek ejectment for the premises on the ground of his requirement for personal use or use of the male children.
' Now this deed witnesses as follows. -(1) In consideration of rent of Rs, 700 per month the Lessor hereby grants and demises unto the Lessee the premises aforesaid bearing No, P. 276 to hold the same for a period of 10 years from 5th February, 1978 to 5th February, 1988.
2. The Lessee, hereby covenants with the Lessor as follows :-
(a) To pay all charges for electricity on the demised premises.
(b) To use the demised premises for the purpose of shop of shoes and or other consamer goods and articles.
(c) To keep the premises in a tenantable conditions.
(d) Not to sublet or assign the demised premises or any portion thereof without the written consent of the Lessor which consent shall not be unreasonably .Withheld.
3. The lessor hereby covenants with the Lessee as follows :-
(a) To pay and discharge all Municipal taxes and other taxes, cesses and levies, including property tax or any other taxes imposed by the Central, Provincial Government or Municipal Authorities on Immovable property in respect of the demised premises, and on the failure of the Lessor to pay the aforesaid taxes, cesses and levies and property tax etc. The Lessees on demand being made by the Municipal Committee/Corporation, Local Authorities and Excise and Taxation Department or any other Government Authorities may pay the tax etc. As demanded from them and recover the same from the Lessor or deduct the same from rent of the premises, #TBS (5) #TBE
(4) That the lessor undertakes to repair, white wash and to paint the doors, windows and other wood works of the demised premises at his own cost once in a year failing which the Lessee may do so and deduct the entire cost thereof from rent of the premises.
That in case of damage to the premises by fire or otherwise, the lessees shall not be liable to pay rent for the period the demised premises remain in a damaged condition till such time as it is reinstated to its original condition by the Lessor.
(6) That the Lessees shall remit rent to the Lessor by crossed A/C payees cheque. Posting of the cheque prepaid Registered Envelops to the lessor on above address shall be sufficient evidence of tender.
That the monthly rent shall be paid or remitted by cheque within 15 days after the expiry of each month of tenancy.
The Lessees shall be entitled to make addition to and renovate, alter and decorate the interior and frontage of the shop according to its taste and choice at its own cost and the Lessee may on vacating the premises remove such additions etc. But in the case premises are vacated at the desire and instance of the Lessor, the Lessee shall be entitled to recover full expenses incurred on additions and renovation etc.
(9) That the lessee observing and performing all covenants and conditions herein contained on its part to be observed and performed shall peacefully and quietly hold and enjoy the premises during the period of tenancy without any let or hinderance, interference or disturbances from the Lessor or any person or persons whatsoever.
(10) Notwithstanding anything contained in clause on the above Lessee may at this option terminate the Lease by one month's notice at any time after the first six months of tenancy.
' In witness whereof this Lease Deed is signed and executed by both the parties on 5th February, 1978 abovementioned."
6. On the basis of the terms of the lease agreement learned counsel for the petitioner has contended that the tenancy being for a fixed period agreed upon, landlady was not entitled to apply for eviction of the tenant either for her own personal occupation or for her male children in view of proviso to section 13 (3) (a) (ii)(c) of the Ordinance before the expiry of the period fixed. It has been contended further that the plea in support of the eviction petition based on the ground for reconstruction in accordance with the approved plan before the expiry of period of 10 years is a clear mala fide move to frustrate the express terms of the lease agreement. Learned counsel has submitted that the landlady could not have succeed in evicting the tenant on the ground of personal requirement before the fixed period on account of proviso to section 13 (3) (a) (ii) (c) of Ordinance VI of 1959, so as to obviate the effect of the abovestated proviso, ejectment has been sought on the ground that the landlady intended to construct a chaubara on the roof of the tenanted premises to provide residence to his son. Construction of chaubara on the roof was not shown to be possible unless the ground floor in occupation of the tenant was also demolished.
Personal need, therefore, has been closely linked with plea for reconstruction only to defeat lease agreement, otherwise it is admitted that the shop in occupation of the tenant is not at all needed for personal use either by the landlady or by her sons. This way the need for reconstruction expressed in the ejectment petition has been described by learned counsel to be lacking in reasonableness and good faith. Contention of learned counsel for the petitioner is that a landlord can only succeed to evict tenant on the ground of reconstruction if he proves to the satisfaction of Rent Controller that the requirement is not only motivated by good faith but is also reasonable. The need of the landlady if looked at in the light of evidence and the terms of the lease agreement above referred to is motivated by clear mala fides despite her shrewd attempt at its camouflage.
Learned counsel while analysing the evidence produced has submitted that the tenant during the proceedings before the Rent Controller made an offer to the landlady to handover the vacant possession of the shop provided she agreed to complete its construction within six months and then relet it. It was further offered that the tenant would continue paying rent at the rate of Rs, 800 per month even during the period the shop was under construction. Tenant offered fifty per cent increase in rent and further undertook to enhance the rent at the rate of 25% after expiry of the period of three years. An alternative proposal was also given that in case landlady is not in a position to complete the construction within the period of six months as suggested the tenant agreed to raise construction through its own funds to be adjusted subsequently from monthly rent.
The offer made by tenant through application Annexure 'D'' was not agreed to by the landlady, rather it was requested on her behalf that the petition for eviction be decided on Merits. This has been pointed out by learned counsel appearing for the petitioner only to show clear lack of bona fides on the part of the landlady. Learned counsel has contended that though there is no such rider placed in case of need for reconstruction as is specified in proviso to section 13 (3) (a) (ii) (c) of Ordinance, yet while considering reasonableness and good faith in regard to the plea of reconstruction the effect of the tenancy being for a fixed period, as is the case in hand cannot be ignored altogether. Learned counsel therefore has contended that both the Courts below have by misconstruing the provisions of Rent Restriction Ordinance, 1959 and ignoring the material terms of the lease agreement and its effect on the plea raised, have arrived at conclusions adverse to the tenant which clearly are not sustainable. Orders passed therefore by the Courts below are liable to be struck down on the ground of being contrary to the positive provisions of Rent laws and judicial pronouncements of the superior Courts. Reliance has been placed on the case of Abdullah Baloch v. Adam 4/i (1) to contend that when requirement for reconstructioa has been linked with personal requirement which when negative mint necessarily react upon reasonable and bona fide requirement for reconstruction. In the instant case plea for personal requirement was not available at the relevant time and as such the same purpose cannot be allowed to be achieved through another plea of reconstruction on roof of shop. Need for reconstruction has arisen only because the landlady required to accommodate her son in ehaubara to be raised on roof of the shop. If need of son for residence had not been there reconstruction would not have been pleaded. It has been contended by learned counsel that the building is not in such a condition as to need immediate replacement. At any rate since the entire building is allegedly being demolished to construct a chaubara on its roof for the residence of the son of the landlady which need in view of the agreement could not be successfully urged in support of eviction petition before expiry of period of ten years,
(1) PLD 1961 SC 28 ' the requirement for reconstruction has been stated to be neither genuine nor bona fide.
7. Muhammad Zainul Abiddin, Advocate learned counsel for respondent landlady on the other hand submitted that it is the sole prerogative of the owner/landlady to construct her owned premises as and when she liked for the purposes of its improvement, convenience and requirements of the tenant cannot be allowed to obstruct this right of the owner which has in no manner been curtailed under the Ordinance. It is for the landlord alone to decide as to whether he wants to reconstruct the premises after its demolition and in the process making of this decision no other person muchless a tenant has any material say. Learned counsel submitted that in view of the express provision of section 13 (2) (vi) of the Ordinance landlord is possessed of a right to seek eviction of tenant on the ground for reconstruction of the premises and for that he has only to show an approved site plan from the relevant authority. Funds to raise construction are also available. Courts below therefore have rightly recorded a finding on the reasonable and bana fide need of the landlady. Order of eviction was not liable to be interfered with in writ jurisdiction.
Learned counsel has further contended that the intention of the law-maker is crystal clear in this behalf. Comparing section 13 (3)(ii) and its proviso with section 13 (2) (vi) it has been urged that where the legislature wanted to put an embargo, it has expressed its intent in unequivocal clear terms. Absence of any such limitation in case of ejectment before specified period with bona fide plea of reconstruction goes a long way to demonstrate that the right of landlord to eject tenant before the period fixed in the lease agreement of course subject to proof of bona fide and reasonableness was not affected in any manner. Reliance has been placed upon the following cases :-
(1) Sh. Maula Bakhsh and another v. Fazal Din and another PLD 1982 SC 201.
(2) Haji Allah Ditta v. Mst. Shahzadi Bilqis and another 1981 SCMR 41.
(3) Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 246.
(4) Mahmood Ahmad Kahloon v. Fateh Muhammad and another PLD 1981 Lah.
459.
(5) Messrs Amir Din Allah Ditta v. Seth Adamji Abdullah and others 1969 SC MR 131.
(6) Abdul Hadi alias Abdul Hadi Hasan and 2 others v. Syed Ali Haider and others PLD 1983 SC 342.
8. It may not be out of place to make mention here that during the course of arguments it was suggested to learned counsel for the landlady that since the premises in occupation of the tenant were not needed at all for personal use by the landlady or her son, the tenant was prepared to vacate the premises to facilitate reconstruction provided a time limit less than that provided in section 13 (5) of the Rent Restriction Ordinance, 1959 was fixed to secure the right of tenant to re- inter the premises after completion of the building. Learned counsel appearing for the respondent/ landlady however, when confronted with this offer expressed his disagreement on the ground that the time limit fixed in law cannot be allowed to be curtailed. A chance for amicable settlement offered was again lost.
9. Learned counsel for the respondent has further contended that there are sufficient safeguards provided in the Rent Restriction Ordinance, 1959 to check against the mala fide move of the owner/landlord. In case reconstruction is not made after demolition serious penal consequences follow. Therefore when judged in the light of these penal consequences and safeguards, learned counsel contended, requirement for reconstruction has been fully established and substantiated.
10. True, it is the right and prerogative of the landlord to construct or reconstruct his premises for purposes of improvement/development and the tenant can be evicted to facilitate the process of construction/reconstruction but then words "bona fide and reasonable" used in section 13 (2) (vi) of the Ordinance also cannot be lost sight of. The landlord has to prove that th need is bona fide and reasonable to the satisfaction of Rent Controller. Mer desire to demolish the building for purposes of reconstruction with a sol view to throw out the tenant may never be in good faith or reasonable.
N cut and dried formula can be laid down to serve as a yardstick to be universal guide in such matters. Every case therefore proceeds on its own facts and circumstances. Connotation and placement of words reasonable and in good faith before reconstruction goes a long way to show that requirement has to be genuine.
Mere fact that certain safeguards have been provided in section 13 (5 of Ordinance VI of 1959 as amended will not absolve the owner/landlor of basic onus to prove that requirement for reconstruction is motivated by good faith and is reasonable. Reliance may be placed upon the cases of Dr. A. R. Khan v. Muhammad Ishaq (1) and NLR 1981 A C 406. In the case under discussion it is admitted that the premises were given on rent for a fixed period of ten years and as such could not be got vacated in any circumstances on the ground of personal need either for the landlady or for her son before the expiry of the period fixed. This is evident from the bare reading of the lease agreement terms whereof have already been reproduced in the preceding paragraphs. When need for constructing a chaudara. On the roo of shop for the use of landlady's son is seen in the light of the terms of the lease agreement it clearly emerges that the landlady in order to frustrate th terms of the lease which was to run till 5th February, 1988 has come out with this plea. Need for separate residence in chaubara to be constructed on the roof of the shop seems to have emerged only with a view to seek tenant's eviction prematurely. Attempt to frustrate solemn commitments made in the lease agreement guaranteeing settled peaceful possession to a tenant for fixed period of ten years cannot be allowed to succeed under cover of plea for constructing a chaubara on the roof top of the shop for the use of son of the landlany. It is not the case that the building in occupation of the tenant is in so dilapidated a condition that its demolition is immediately necessary. Personal need has been linked with plea for reconstruction only to avoid the legal effects of proviso to section 13 (3) (ii) wherein it is clearly provided that both in case of residential as well as non-residential buildings, eviction cannot be ordered for personal requirement before the , expiry of period agreed upon between lessor and lessee. In the instant' case the tenant on the basis of agreed period contained in lease agreement occupied the premises and started his business. The tenant was entitled to continue for a fixed period subject to the observance of the conditions laid down in the lease agreement. Landlady therefore in view of these express commitments guaranteeing peaceful possession for a fixed period of ten years
(1) 1972 SCM R 437 ' cannot be allowed a volte face abruptly to put an end to period of tenancy I on ground of reconstruction. Both the Courts below therefore have misinterpreted the provisions of the lease agreement qua need for reconstruction of chaubara on roof of the shop in question for personal need of the landlady's son and consequently arrived at incorrect decision in holding issue No, 3 in favour of the landlady. The terms and conditions mentioned in the lease agreement particularly period of ten years sharply react on the bona fides of the landlady, relating to reconstruction which seems to be a mere pretence. The resultant order of eviction therefore is liable to be set aside.
Since the basic order has been set aside the superstructure raised thereon also cannot stand and consequently the appellate order, dated 9th January, 1984 passed by the learned Additional District Judge, Faisalabad also falls to the ground.
11. As a result of the above, writ petition is accepted, order, dated 30th November, 1983 passed by learned Rent Controller, affirmed in appeal on 9th January, 1984 by learned Additional District Judge, Faisalabad are set aside and declared to have been passed without lawful authority. Parties are left to bear their own costs.