1. ' The respondent filed an application for ejectment against the appellant in respect of two shops on Plot No.979 Block 3, Liaquatabad, Karachi. It was alleged that the appellant was to pay rent @ Rs.45 p.m. on the first of every calendar month, but he has neither paid, nor tendered rent from November, 1973 to January, 1974. It was further alleged that the plot of land is a residential one but the appellant has converted it into a shop with the promise and clear understanding that the arrangement was temporary and he would vacate when the applicant started construction of the house. The respondent has obtained an approved plan for constructing a building and she requires it for reconstruction. By the impugned order the learned Controller held that the appellant has defaulted in payment of rent. It was also held that the respondent bona fide and in good faith requires the premises for construction and the appellant was ordered to vacate the premises.
2. ' Mr. Mushtaq Memon the learned counsel for the appellant contended that the respondent has failed to establish that he .requires the premises bona fide and in good faith for construction of the building. In this regard the learned counsel asserted two facts namely that the respondent has no means and funds to raise building and secondly that there are two other tenants in the premises and unless they have vacated the premises even if the appellant vacate the shop, it will not be possible to reconstruct the building.
3. ' So far the first contention is concerned, it is true that the respondent's husband who was alive at that time, stated that he being a retired person earns Re.1 or 2 per day from a small shop he was running. There is no other evidence that finances have been made available but the respondent's witness did state that he would apply for loan to the House Building Finance Corporation. In this regard Mr. Nadeem the learned counsel for the respondent referred to Habibullah Khan v. Maqbool Ahmed 1981 CLC 761, where it was held that "the question of availability of funds and 'sources in the modern times has no bearing or effect on the bona fide and good faith of the landlord as it is possible for a landlord to obtain loans for such purpose from various organisations, like House Building Finance Corporation, Banks etc., and furthermore this condition has not been laid down in section 2(vi) of the Ordinance". In view of the statement made by the respondent's attorney that he will apply for loan to the House Building Finance Corporation, in my opinion, the poverty of the respondent cannot defeat the bona fides.
4. ' The learned counsel for the respondent has very vehemently argued that as other tenants of the premises have not been evicted the order of ejectment even if granted will not enable the respondent to construct the house, till such time other tenants also vacate the premises. In this regard the learned counsel also referred to 1979 CLC 164. This case is distinguishable on facts, because there one mortgagee was in possession of a part of the premises i.e. a shop and no ejectment proceeding was started against him. It was therefore, observed that it was not possible to obtain possession from a mortgagee without recourse to law. If a building is occupied by several tenants, and the landlord wishes to reconstruct it and files ejectment case against one tenant only then unless the landlord proves that the other tenants have agreed to vacate or that proceedings against all the tenants has been initiated or that according to the approved plan it is possible to construct the building in phases even without ejecting other tenants it may not be possible to grant ejectment as the landlord's action against one of the tenants adversely reflects upon his bona fide and good faith. However, it will be a dangerous precedent to lay down that unless all the remaining tenants have been evicted ejectment order cannot be passed against a tenant. In the present case the respondent has stated that other two tenants have promised to vacate the premises when she starts construction. There is nothing on record to show that assurance given by other tenants is incorrect, or they will resile from their undertaking. On the assumption that the other tenants will not vacate the premises, it is not possible to stay the proceedings, or to reject the ejectment application. The requirement under section 13(2) (vi) of Sind Urban Rent Restriction Ordinance is that the landlord should establish his bona fide and good faith for reconstruction of the building and that there should be an approved plan for the building he requires to reconstruct.
5. Once plan has been approved and bona fide as stated above has been established, there should be no impediment in grant of order of ejectment. The ground that other tenants have not been evicted can be pressed in service for granting time for vacating the disputed premises.
6. ' Mr. K.M. Nadeem the learned counsel for the respondent has further contended that in view of protection granted under section 13(5) of the Ordinance bona fides of the landlord is not relevant in granting ejectment under section 13(2) (vi). The learned counsel has relied on M/s. Ameer Din Allah Ditta v. Seth Adamjee Abdullah and others 1969 SCMR 131 where following observation has been made:- "The argument that the respondent's requirement of the new building was neither reasonable, nor bona fide was not relevant to the disposal of the ejectment petition filed under section 13 (2) (vi) of the Ordinance aforesaid. The penal provisions contained in subsection (5) of section 13 of the Ordinance afford an adequate safeguard against a landlord acting in bad faith."
7. ' Further in Haji Allah Ditta v. Shahzadi Bilquis and another 1980 SCMR 41 it was observed:- "The mere fact that the landlord is willing to demolish the old building and invest a large amount of money in constructing a new one, notwithstanding the tremendous increase in the cost of construction, and the fact that he is willing to undergo imprisonment on his failure to demolish the building or to construct it within a specified period is sufficient to establish his bona fides."
8. ' Putting the present case to the test laid down by the Supreme Court in the aforestated authorities, it is clear that the bona fides and good faith of the respondent cannot be doubted. The respondent has obtained an approved plan from the relevant authorities, and is ready to invest the amount for construction, and face the penal consequences in case he fails to reconstruct the building, therefore, impugned order cannot be disturbed.
9. ' Mr. Mushtaq Memon then contended that the findings of the learned Controller that the appellant has defaulted in payment of rent is misconceived The respondent has claimed default for the months of November, 1973 to January, 1974. According to the appellant the respondent by notice dated 7th November, 1973 called upon him to vacate on 21-11-1973. Thereafter, the appellant tendered rent to the respondent's husband as usual for the month of November, 1973. This was refused by the respondent and the appellant then remitted rent for the months of November and December, 1973 through money order, and thereafter on 31-1-1974 he filed an application for deposit of rent, and in regularly depositing. The learned Controller came to the conclusion that although the appellant had pleaded that the rent for 2 months has been paid by money order, no documentary evidence or money order receipt has been produced. According to the appellant these receipts were filed in the Miscellaneous Rent Case. This file was summoned by the learned Controller and it is alleged that after the impugned order was passed the appellant has found out that pages 16 and 17 are missing. These were the alleged receipts which had been filed by the appellant. The appellant has annexed with the memo. of appeal, a photo copy of the receipt of remittance of Rs.90 to the respondent as Annexure 'B'. This amount was remitted on 12th January, 1974. This statement of the respondent has not seriously been challenged in cross-examination.
10. Considering the fact that some material evidence has been removed from the Court file and its photo copy has been produced which though made part of the memo. of appeal, no objection was raised by the other side, I am inclined to accept that money order was remitted on 12th January, 1974 towards the rent for November and December. This according lo the respondent was refused, and thereafter, the rent was deposited in Court. Considering the facts and circum stances, in my opinion no default has been committed. However, on the ground that the appellant requires the premises for bona fide need and in good faith for reconstruction of the building no exception can be taken to the ejectment order passed by the learned Controller. The appeal is therefore, dismissed. The appellant is permitted to hand over vacant possession of the disputed premises to the respondent on or before 31-12-1984.
11. Appeal dismissed.
12. 19b5 CLC 842 [Karachi)
13. Before Saleem Akhtar, J EBRAHIM and 3 others--Petitioners versus NAZIR PRINTING WORKS--Respondent Second Appeal No.8 of 1983, heard on 3rd September, 1984.
(a) Civil Procedure Code (V of 1908)-- - --S.100--Second appeal--Proper application of mind by first appellate Court necessary for conclusive concurrent finding--Evidence not having been appraised by first appellate Court-- Second appraisal undertaken.--[Evidence). [p. 844] A Bashirullah v. Mst. Sardar Begum PLD 1954 Lah. 614 ref.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-- - --S . 13(2 ) ( vi)--Ejectmen t--Reconstruction of old and uneconomical building for improvement of property--Plan for multi-storeyed building approved--Bona fide requirement in good faith-- Held: Approval of plan for reconstruction from relevant authorities with object to improve property sufficient to establish landlords bona fides--Plan need not necessarily be to cater needs of existing tenants--Question of funds/ resources irrelevant for bona fides and good faith of landlord.
14. [pp. 846, 847, 848] B, C & D 1981 CLC 761; Abdul Mannan v. Haji Karam Ellahi PLD 1971 Quetta ; Ghulam Nabi v. Mushtaq Khan PLD 1980 SC 206; Moula Dad v. Sardar Khan PLD 1972 Quetta 39 and Haji Allah Ditta v. Mst.
15. Shahzadai Bilquis and ,another 1980 SC M It 41 rel.
16. M.M. Mahmoodi for Appellants. Nemo for Respondent.
17. Date of hearing: 3rd September, 1984.
18. ' The appellant filed an application for ejectment of the respondent in respect of tenements Nos.22 and 23 in the building bearing No.W.O.6/12 Water Course Road, Karachi. It was alleged that the building is very old and in dilapidated condition and is uneconomical. The appellants have therefore, decided to construct a multi-storeyed building after demolishing the existing building for which a plan has been approved by the relevant authorities. It was stated that the appellants reasonably and bona fide requires the said property for demolishing the existing construction and constructing a new multi-storeyed building with modern amenities. The respondent opposed the claim and in its written statement pleaded that he is a tenant for the last about 20 years and has installed a huge automatic printing press on the ground floor together with lathe machine. It is occupying 1365 sq. ft. and 10041 sq.ft. with an average height of 22'. It was denied that the premises is in dilapidated condition. It was pleaded that few months ago the respondent has spent Rs.10,000 for repairing the roof, plastering and renovation. It was denied that action of the appellants is bona fide, reasonable and in good faith. The learned Controller dismissed the application holding that the premises is not in a dilapidated condition, and is not bona fide and in good faith required for construction. The appeal filed by the appellants was also dismissed by the learned 1st Appellate Court.
19. ' I have heard Mr. Mamoodi for the appellant. The respondent and his Advocate have remained absent. At the outset it may be stated that the judgment of the learned Ist Appellate Court does not seem to have properly considered the evidence, issues, and contentions, raised by the parties, and its reading gives the impression that it is merely a summary of the order of the learned Controller which has been endorsed without proper application of mind. It is the duty of the first appellate Court to examine all facts, evidence, documentary and oral, with reference to the issues and the provisions of law. A very heavy duty is cast upon the 1st Appellate Court because if he concurs with the finding df fact of the trial Court, it can be disturbed in Second appeal on very limited ground.
20. Where the 1st Appellate Court endorses the view of the trial Court without properly applying its mind and mechanically concurs with the trial Court such finding is robbed of the sanctity which is attached to a concurent finding. It is no longer conclusive because in law such finding should be the result of independent and proper application of mind by both the Courts below.
21. In Bashirullah v. Mst. Sardar Begum PLD 1954 Lah. 614 Kayani, J. (as he then was) observed:- "It is not enough for the Court of appeal to say that 'the defendant has led evidence to show that this sale was effected with the consent of the plaintiff and in agreement with the learned Sub- Judge I am also of the opinion that the plaintiff did not give her consent'. The evidence that was led ought to have been discussed and an independent mind brought to bear on the issue. Even if the Court of appeal professes to have examined the evidence, but it does not appear from the judgment that it has done so, a mere statement that upon an examination of the evidence it agrees with the conclusions of the trial Judge would not convince the Court of second appeal that the evidence has been so appraised as to make it unnecessary for the Court to undertake a second appraisal. It is only when the Court of second appeal is thus convinced that it will regard the finding of fact by the District Judge as conclusive."
22. ' While dealing with the issue whether the building is dilapidated the Ist Appellate Court has cursorily referred to the evidence without properly appraising it. The important issue relating to bona fide and reasonable requirement of the appellants for reconstruction has been dealt with in a summary manner and the evidence has not been appraised. Mr. Mahmoodi has made a grievance that the authorities of the Supreme Court and High Court referred during arguments have not been considered by the learned Ist Appellate Court. In the circumstances, it is clear that the evidence has not been so appraised by the Ist Appellate Court " as to make it unnecessary to undertake a second appraisal".
23. ' Mr. Mahmoodi the learned counsel for the appellant has contended that both the Courts below have not judicially considered the evidence, and have misapplied the provisions of law. The learned counsel contended that from the evidence on record, the appellants have established bona fide requirement for reconstruction. In this regard the learned counsel has referred to the evidence of the parties. The learned Controller has dealt with the matter at great length and one of the factors which has impressed him for holding that there is lack of bona fides is that the appellants had filed Suit No.1498/68 against the respondent which was compromised but at that time although the appellants had obtained the approved plan for reconstruction, they did not disclose that they wanted to reconstruct the building. It was further observed that under the compromise the respondent undertook to repair the roof and spent Rs.13,000. All these facts according to the learned Controller prove lack of bona fides and good faith. The learned Appellate Court has endorsed the view of the learned Controller. The learned Courts below do not seem to have examined the nature of the suit and relief sought by the appellant. A copy of the plaint was produced during the evidence which is in the paper book of the lower appellate Court. This was a suit for declaration and injunction against the respondent. The main allegation in the plaint was that on 10-7-1968, the respondent demolished the roof of the premises with intention to reconstruct it without the permission of the appellant or sanction of K M C. It was alleged that the action of the respondent in demolishing the roof and reconstructing the same was illegal and unauthorised, and a permanent injunction was sought restraining the respondent from demolishing and reconstructing the suit property. The suit was compromised in the following terms:- ' Defendents who present are inconvenienced without a roof, may replace the roof by asbestos sheets on tenement No.23. They may also carry out repair of the roof of tenement No.22 to protect against rain without demolishing any portion thereof. All this shall be at the cost of the defendants.
(2) That all the material including sheets, griders etc. incorporated if the above works shall being to the landlords/plaintiff and the defendant shall have no interest therein.
(3) That the defendants shall keep the landlord/plaintiff fully indemnified against any action detrimental to their interest taken by the K.M.C. C.D.C. or any other authority in respect of the said works.
(4) That parties shall bear their own costs."
24. ' These proceedings therefore, clearly show that the respondent had either demolished the roof or it was so old and dilapidated that it was necessary to replace it by another roof. The respondent compromised this suit and undertook to replace the roof by asbestos sheet which would have been in his own interest. These terms and conditions are not unusual between the landlord and tenant. Such proceeding and settlement between the parties cannot give the impression that the appellant had come with unclean hand or had not disclosed any material fact which was necessary for such proceedings. The respondent was carrying on business there and if the roof required reconstruction or repairs then the respondent had done it for his own sake. The nature of the suit proceeding clearly show that there was no lack of bona fides on the part of the appellant.
25. The respondent had entered into the settlement with its own free will, and it has spent money to repair the roof. This does not in any manner militate against the bona fides and good faith of the appellant. Even if the appellants would have disclosed that they wanted to demolish the building, it was unlikely that after the respondent had demolished the roof it would have stayed there without carrying out repairs.
26. ' The other fact which has impressed the learned Controller is that Mansoor who was examined on behalf of the appellants did not disclose the particulars of their bank accounts. The learned counsel contended that a bank certificate in respect of Ibrahim one of the co-owners was produced from which it was established that he has sufficient funds to raise the building. The fact that witness was not disclosing the accounts of the other owners cannot lead to the presumption that the appellants have come with unclean hands. If the Controller wanted to ascertain the funds available to the appellants, the same could have been done by looking to the bank certificate produced by the appellants. This certificate produced by the appellants is in respect of Ibrahim who is one of the co-owners and although in evidence it is stated that all the co-owners have decided to pool their resources and invest their money, it was not necessary that solvency certificate from the bank in respect of all the owners should have been produced. if the property is to be constructed jointly by several co-owners and from the evidence it is established that one of the co--owners has sufficient funds for reconstructing the building and is willing to invest it for that purpose then it is irrelevant to ask for the financial resources of all other co-owners. In such circumstances if the bank account or resources of other co-owners are not disclosed it will neither amount to lack of bona fide and good faith nor will it lead to the inference that the owners are not in a position to construct the building. Even one co-owner can invest money on behalf of all the co- owners according to their mutual agreement. The proceedings before the Controller are of limited nature and while cross-examining a witness, it is not proper to fish into private affairs of any party and compel him to disclose such financial matters which are not relevant. The learned counsel has relied on 1981 CLC 761 in which it was held that "the question of availability of funds and resources in the modern time has no bearing of or effect on the bona fide and good faith of the landlord, as it is possible for a landlord to obtain loans fo such purpose from various organizations like House Building Corporation, Bank etc. and further more this condition has not been laid down in section 13
(2) (vi) of the Ordinance." In the present case it is established that one of the co-owners has sufficient funds for reconstruction of the building, and therefore, the contrary view taken by the Courts below is a result of clear lack of judicial consideration of evidence.
27. Mr. Mahmoodi has contended that the learned Courts below have wrongly held that as the nature of the new building would be such that it will not be able to accommodate the respondent, the appellants could not be allowed to construct it..In this regard the learned counsel has referred to Abdul Mannan v. Haji Karam Elahi PLD 1971 Quetta 1 where it was held that: "Once it is held that the landlord is entitled to build his property then the tenant cannot question the nature of the reconstruction of the old building on the ground that it would not suit his requirement. This is why the question of re-instatement of the tenant in the new building has been left to the discretion of the Rent Controller."
28. ' The learned counsel for the appellant also referred to Ghulam Nabi v. Mushtaq Khan PLD 1980 SC 206 where referring to section 13 (5-B) of West Pakistan Urban Rent Restriction Ordinance, the following observation was made:- "This subsection only confers a right on a tenant to a lease of the demise premises after their reconstruction, and as the Controller, is empowered to lease to the tenant in the new building, a smaller area than the premises originally demised to him, this express provision is inconsistent with the proposition that a landlord can reconstruct his property only in accordance with the needs of his tenant. Secondly, the option conferred on the tenant by this subsection continues until the completion of the new building, and its occupation by another person. In view of the laws delays this can only be many years after the landlord's reconstruction plan has been approved by the local Municipality, therefore, the plea that the landlord's rebuilding plan must conform to his tenant's requirements would lead to absurdity, thirdly, whilst a landlord cannot evict his tenant except on the ground prescribed in the said Ordinance, a tenant is free to vacate the demised premises after giving the contractual or statutory notice. As a tenant can terminate his lease unilater ally, it would be extremely unjust and unreasonable if the landlord's right to rebuild and develop his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the Legislature."
29. ' From the aforestated authorities it is clear that plan for reconstructing the building should not necessarily be to cater the needs of the existing tenants. Therefore, the findings of the Courts below was against the dictum of Supreme Court and principles of law.
30. ' The appellants have stated that the building is old and uneconomical and that they want to reconstruct a multi-storeyed building with more tenements, and further that it will be an improvement in the property. In Ghulam Nabi's case quoted above, it was observed that "where the effect of the reconstruction is substantially to develop and improve the property, the landlord can evict the tenant. A landlord can evict the tenant on the ground of reconstruction of building provided he proves that his requirement is reasonable and bona fide". In Moula Dad v. Sardar Khan PLD 1972 Quetta 39 it was held that any reconstruction which would enable the landlord to develop or improve his property would be reasonable within the meaning of clause (vi) of subsection (2) of section 13.
31. ' In Haji Allah Ditta v. Mst. Shahzadi Bilquis and another 1980 SCMR 91 it was observed that "every person has right to improve his property and utilize the land on which the building is 'constructed in the best and most profitable manner and erect a new building if the old building is outdated although it might yet be habitated or sufficiently strong to last for another few years". If a landlord with the intention to improve his property wants to demolish a building and re-erect a new building which is more economical and more useful in all respects than the old building then depending on the facts and circumstances, such act of reconstruction will be deemed reasonable. Where a landlord proves that he has obtained an approved plan for reconstruction from the relevant authorities, with the object to execute it and improve his property, his bona fide and good faith cannot be doubted. On consideration of the entire evidence and the facts I am convinced that both the orders lack proper judicial consideration of evidence, and the provision of law have been misapplied.
32. ' The learned counsel contended that the learned Courts below erred in holding that as the building is not in a dilapidated condition, the appellants do not require it reasonably and bona fide for reconstruc tion of a building. It is not necessary that the building required to be demolished should be dilapidated. Even a strong and habitable building can be demolished for reconstruction provided such reconstruction will improve the property. In Mouladad's case similar contention was repelled in the following words: "In the present case, the Rent Controller has rejected the appellant's claim on the ground that the property was not yet dilapidated. This view implies that a landlord can rebuild his property only 1" it is dangerous. I am not able to agree with this view because the word "reasonable' is a word of wide import and its meaning cannot be curtailed so arbitrarily, and if the Legislature had intended to restrict the landlord right, in this manner, it would have done so by express provision, the more-so as it must be presumed to be aware of similar provisions, in the statute governing the rights and powers of local bodies. I, therefore, do not agree with the rent Controller's view."
33. ' In Haji Allah Ditta's case 1980 SCMR 41 it was observed that it is not necessary that a building must be so old and dilapidated that it is about to fall down before a landlord can be considered justified in wanting to demolish and reconstruct it. It is not necessary for a landlord to establish that the building sought to be demolished in dilapidated or ruinous, nor absence of such a circumstances will lead to the inference that the landlord's requirement is not reasonable and bona fide provided the landlord by independent evidence proves his bona fides. As observed earlier even habitable and strong old building can be demolished for reconstructing such building which will improve the property. The appeal is therefore, allowed. The respondent shall be entitled to the protection afforded under subsection (5B) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959. The respondent is granted three months time to vacate the premises.