' These are eight First Rent Appeals under section 21 of the Sind Rented Premises Ordinance, 1979 against the order, dated 19-5-1982 passed by the learned XVth Senior Civil Judge/A.S.J. and Rent Controller, Karachi in Rent Cases Nos. 3207/81, 3209/81, 3210/81, 3211/81, 3212/81, 5079/81, 5080/81 and 5081 of 1981 ordering the ejectment of the appellants from the premises in question.
2. Since the common question of fact and law was involved in these eight Rent Applications, they were disposed of by the learned Rent Controller by one judgment. I, therefore, propose to dispose of these eight appeals by this judgment.
3. The facts leading to the present appeals are that the respondents who are the owners and landlords of the four storeyed residential-cum commercial building filed the abovesaid eight cases against the appellants who are their tenants for their eviction on the grounds of default in payment of rent and reconstruction of the building. During proceedings, the grounds of default was given up by the respondents and the case proceeded only on the ground of reconstruction of the building in question. The learned Rent Controller allowed all these applications and ordered ejectment of the appellants from the respective premises in their occupation.
4. I have heard M/s. A.F.M. Mukarim, M.S. Nizamani and S.H. Rizvi, learned counsel for the appellants, as well as Mr. Ahmed Saeed Qureshi, learned counsel for the respondents.
5. The learned counsel for the appellants raised the following contentions:-
(i) There are twelve tenants in respect of twelve tenements in the building but the respondents have instituted only nine cases against nine tenants, the action on their part is mala fide.
(ii) Evidence in the lower Court was recorded in one case whereas in the other cases it was reproduced verbatim simply by placing typed copies thereof. This has vitiated the entire proceedings.
(iii) There was no approved plan for the construction of the building in question on the date of the institution of ejectment application.
6. The first contention of the learned counsel for the appellants can be simply disposed of by stating that no such plea was taken in the lower Court and there is no evidence on the record to this effect. In any case, learned counsel for the respondents stated before me that since the matter had been settled with the three remaining tenants no cases were filed against them. The explanation is plausible and the plea merits no consideration.
7. As regards the second contention as urged by the learned counsel for the appellants it is admitted by the learned counsel for the parties that one Advocate was appearing for all the appellants and one Advocate for the respondents in all the cases. The affidavits in evidence were separately filed by the respondents as well as the appellants in each case. The respondent appearing as a witness was cross-examined by the learned Advocate for the appellants and it was by agreement of the counsel appearing for the parties in the lower Court that the cross- examination of the respondent in one case was to be read in all the other cases. Similarly, the affidavits in evidence on behalf, of the appellants were filed separately in each case and the cross- examination of the appellants was read to be the same in all the cases. The learned counsel for the parties candidly stated before me that the procedure was adopted by the consent of the counsel for the parties appearing in the lower Court. I find that the examination-in-chief by affidavits and the cross-examinations by the learned counsel for the parties appearing in the lower Court has been recorded and signed in each case by the learned Rent Controller. In any case the learned counsel for the appellants did not even allege before me that any miscarriage of justice has been caused to them. However, learned counsel for the appellants relied on a decision given by a Single Judge of the High Court of Lahore in a case reported as Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446 but the said decision is distinguishable for two reasons: firstly, there was no consent of the parties to that effect and, secondly, the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 with regard to the recording of evidence are different from the provisions of the Sind Rented Premises Ordinance, 1979. Under the Ordinance of 1959, the parties and their witnesses appear in the witness-box whose examination-in-chief and the crose- examinations are to be recorded in any by the Court whereas there is a provision of section 194 of the Sind Rented Premises Ordinance, 1979 which expressly provides that:- "19(4) A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party and such other party shall have the right to cross-examine the witness on such affidavit and if the witness has been cross-examined the party producing the witness may re-examine him."
8. The learned counsel for the appellants also relied on a decision of the Honourable Supreme Court reported as Nur Elahi v. The State PLD 1966 SC 708. I am afraid, the above cited decision relied on by the learned counsel for the appellants is also not applicable to the present case for the simple reason that the observations of the Honourable Supreme Court, firstly, relate to the criminal trial and, secondly, pertain to the application of section 43 of the Evidence Act, 1872. Admittedly, the provisions of Evidence Act, 1872 are not applicable in stricto senso to the proceedings before the Rent Controller. On the other hand, Mr. Ahmed Saeed Qureshi, learned counsel for the respondents relied on a decision given by a learned Single Judge of the Lahore High Court reported as Sh.
Muhammad Ashraf v. Sh. Muhammad Almas PLD 1980 Lah.
52. The learned Single Judge relied on the following observations of the Honourable Supreme Court in an unreported case of Muhammad Aslam v. Imam Bux (which has now been reported in 1980 SCMR 879) on which similar question was raised and the contention was repelled and it was held that:- "The trial continued for a period of about three years, and during all that long period no objection of the present kind was raised before learned Civil Judge. This implies that the procedure aforesaid was adopted with the consent of the parties who were duly represented by their respective counsel. The point was not raised either in the memorandum of appeal or at the time of arguments before the learned Additional District Judge and in these circumstances, the High Court refused to attach any importance to the same. We agree with the High Court, that on the facts in the peculiar circumstances of this ease, it was too late to raise this plea before the High Court and we should say now before this Court, when in the relevant Courts below the mode of recording evidence and maintaining the record was not objected to at any state."
9. The learned Single. Judge of the Lahore High Court as he then was, referring to the above decision of the Supreme Court observed that:- "The cases before their Lordships of the Supreme Court were, however, cases in which a particular procedure has been provided by the Code of Civil Procedure, but no such procedure is provided the West Pakistan Ubran Rent Restriction Ordinance, 1959. It is for the Rent Controller as persona designata to adopt any procedure. In these circumstances, the procedure evolved or adopted with the consent of the parties impliedly or expressly cannot be commented upon unfavourably."
10. I am, therefore, of the view that no illegality was committed by the learned trial Court in recording the evidence as such, and there is no miscarriage of justice to either party in the appeals before me.
11. Now, to deal with the third contention raised by the learned counsel for the appellants, it is evident that the approval of the plan of the building was obtained by the respondents from K.D.A. on 8-7-1980. The said approval was to hold good only if the work was started within one year from the date of the approval (i.e. 8-7-1980), whereafter it shall be deemed to have lapsed. Admittedly, the work was not started by the respondents within one year. With the result that the said approval of the building plan lapsed on 7-8-1981. The applications for ejectment were filed during 21-7-1981 - - 18-11-1981. The respondents did not have the necessary sanction for reconstruction of the building as the sanction had already lapsed and was not subsisting at the time of the institution of the application for ejectment of the appellants as required under section 15(2)(vi) of the Ordinance.
The sanction was not even got renewed or revalidated by the respondents during the pendency of the application for ejectment and even during the pendency of these appeals in this Court.
12. Mr. Ahmad Saeed Qureshi, learned counsel for the respondents has submitted that the renewal of the plan was only a formality which could be obtained from the Building Control Authority at any point of time. In support of his submissions he relied on a case Rais Ahmed v. Mian Abdul Jabbar and another PLD 1972 Lah. 711 (D.B.) The relevant portion of the judgment reads as under:- "In order to appreciate the contention of the appellant that the sanction for the construction from the Cantonment Board was not subsisting on the date the impugned order was passed, it is necessary to refer to subsection (2) (vi) of section 17 of the Cantonments Rent Restriction Act, 1963, which provides that 'a landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may after giving the tenant a reasonable opportunity of showing cause against the application make an order directing the tenant to put the landlord in possession, if he is satisfied that the landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction for such construction from Cantonments Board.' It is not disputed by the learned counsel that the respondent had obtained the necessary sanction for construction from the Cantonment Board. He, however, submits that the sanction expired on the 30th June, 1969. Learned District Judge has observed in his order that the Cantonment Board had, by its resolution No. 2 (a) 9, dated the 10th of September, 1971 granted extension for a year to the respondent for construction. It is laid down in section 183 of the Cantonment Act, 1924, that 'every sanction for the erection or re-erection of a building given or deemed to have been given by the Board hereinbefore provided shall be available for one year from the date on which it is given, and, if the building so sanctioned is not begun by the person who has obtained the sanction of some one lawfully claiming under him within that period, it shall not thereafter begun unless the Board on application made, therefor, has allowed an extension of that period.' It is thus clear that the respondent had obtained the necessary sanction of the Board and the fact that the period of one year had expired would not make any difference because he could always apply for extension to the Board. The case between parties was pending before the Rent Controller and the construction unless he had succeeded in evicting the appellant. The period of one year provided in section 183 of the Act, therefore, expired for no fault of the respondent. The Court, in the circumstances was to take into consideration the fact that the sanction had been obtained by the respondent, and not whether the period within which the construction was to commence under section 183 had not expired. Instead of applying for extension from time to time during the pendency of proceedings before the Rent Controller, the proper course for an owner is to wait if the period of sanction had expired till the case is decided and then to apply for its extension. What is required of the Rent Controller under clause (vi) of subsection (2) of section 17 is to see that the landlord has obtained the requisite sanction which is the basis for moving an application for ejectment, and not that the period within which the construction is to commence subsisting. The interests of a tenant are protected by subsection (6) of section 17 of the Cantonments Rent Restriction Act, 1963, which lays down 'Where the landlord who has obtained possession of a building in pursuance of an order made under subsection (5) does not himself, or where possession of the building has been obtained for any member of his family, such member does not occupy the building within one month of the date of obtaining its possession, that tenant who had been evicted may apply to the Collector for an order directing that the possession of such building be restored to him and the Controller may thereon make an order accordingly.' However, in the event the landlord fails to obtain the extension of the time and is consequently unable to demolish or reconstruct the building within the prescribed period, he exposes himself to a criminal liability under subsection (7) of section 17 aforesaid."
13. Mr. Ahmed Saeed Qureshi has also cited an unreported judgment passed by a learned Single Judge of this Court in First Rent Appeals Nos. 527, 528, 529 and 530 of 1984 wherein it was observed as under:- "It is well-settled that expiry of the validity of plan during by of the ejectment application cannot be treated as a Aid for rejection of the application... As the appellate Court an take note of subsequent events, in view of the facts and circumstances stated above, in the interest of justice it would be proper that the order of ejectment should be executed by the respondent after the plan has been revalidated The appeal is, therefore, dismissed subject to the condition that the impugned order of the Controller shall not be executed by the respondent till such time the respondent produced in Court alongwith the execution application, a duly revalidated plan issued by the Building Control Authority or any other authority competent to sanction such plan."
14. As would appear from the facts of the cases, referred to above, both the cases are distinguishable inasmuch as in these two cases the sanction of the plan was subsisting on the date of filing application for ejectment and so the landlord had the plan duly approved for the intended reconstruction at the time of institution of ejectment proceed ings. The proceedings took long and in the meantime the period prescribed in the sancton letter of the Authority approving the plan expired. The landlord, however, applied for extension/renewal or revalidation of the said plan during the pendency of ejectment proceedings. Whereas in the present case the condition precedent as embodied in clause (vi) of subsection (2) of section 15 has not been duly fulfilled in the eye of law, as there was no sanction of the plan subsisting in favour of the respondent on the date of filing ejectment applications.
15. I, however, asked the learned counsel for the respondents as to why he did not obtain the renewal/revalidation of the sanction of the plan from the Building Control Authority either before or during the pendency of the ejectment application. His reply was that the Authority has imposed a condition for the grant of permission for reconstruction of the building or renewal thereof. The learned counsel for the parties invited my attention to the additional evidence recorded by this Court which, inter alia, contains a resolution passed by the Building Control Authority in its meetings held on 1-12-1983 which reads as under:- "RESOLUTION 1-12-1983--No. 518.
RESOLVED that approval be accorded to the following:-
(1) No permission for reconstruction of a building on plot should be accorded by the Building Control Authority with existing structure under occupation by tenants unless agreement is arrived at between the landlord and the tenants for alternate accommodation or mutually agreed compensation.
(2) Any permission, if already given by the Building Control Authority shall stand suspended with immediate effect if no physical construction has been started and the premises are still occupied by the tenants.
RESOLVED FURTHER that the Building Control Authority shall take immediate action in this regard and follow these instructions strictly.
ALSO RESOLVED that action be taken in anticipation of confirma tion of minutes.
(Action: Controller of Buildings)."
16. Mr. Ahmed Saeed Qureshi, learned counsel for the respondents, however, contended that this resolution is ultra vires to the Building Control Ordinance, 1979. The question of vires of the resolution does not arise out of this appeal and I, therefore, refrain from making any observation in respect thereof. However, be that as it may, the fact remains that there is no sanction of the competent authority for reconstruction of the building which is the prerequisite as to the satisfaction of the Rent Controller to grant an ejectment application filed under section 25(2)(vi) of the Ordinance, 1979.
17. In view of the above, I am of the opinion that the application for ejectment itself was not maintainable on 21-7-1981 as the necessary sanction for the reconstruction of the building was not in force.
18. For the reasons discussed above, I set aside the impugned orders in all these eight cases and allow the appeals. There will, however, be no order as to costs.
19. It may be clarified that the respondents will, however, be at liberty to file fresh applications for ejectment after getting the plan revalidated by the Building Control Authority, if so advised.