1. This second rent appeal is directed against the order of District Judge D.
1. Khan dated 1-9-72, by which he dismissed the first appeal of the present appellant against the order of Controller.
2. The litigation between the parties commenced on the applica--petition filed by respondent in the Court of Controller, D.I. Khan, in which she sought ejectment of appellant on four grounds: (1) That she needs the shop premises for the use of his son Allah Bakhsh, (2) that appellant has failed to pay her rent for the period of three months, (3) that to has damaged the shop pre--mises, and (4) that she wished to demolish the premises with a view to reconstructing them and for that purpose has secured from Municipal Committee, D.
1. Khan, the requisite permission.
(1) Whether the petitioner has got a cause of action?
(2) Whether the petitioner needs in good faith the shop in dispute for her own use?
(3) Whether the respondent is defaulter of rent?
(4) Whether the respondent has damaged the shop?
(5) Whether the petitioner wants to reconstruct the shop in dispute in good faith?
(6) Relief.
3. The Rent Controller held issues 2, 3 and 4 against respondent. But on issue 5, he held in her favour.
4. He, therefore, allowed her application and directed appellant to hand her over the possession of shop within four months.
5. The learned counsel for the parties have confined their arguments only to issue No. 5. The precise finding of the learned Controller or, this issues is that respondent was unable to establish her bona fides that she required the shop premises for reconstruction. But nevertheless, he allowed her application in view of the dictum of Supreme Court of Pakistan in the case of Messrs Amir Din Allah Dina v. Seth Adamji Allah Ditta and others (1969 SCMR 131) which reads as under: "The petitioner's ejectment from building bearing No. 65 situated outside Akbar! Gate, Circular Road, Lahore, was ordered by the Rent Controller on the application of the respondent-owner under section 13(2) (vi) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) on the ground that the latter desired to demolish the old building and intended to construct a new one for the installation of a printing press. The petitioner's appeal to the District Judge and second appeal to the High Court followed by Letters Patent Appeal have failed.
6. The finding reached by all the Courts below that the respondent genuinely wants to reconstruct the building for his own use and for which his plan has also been sanctioned by the Municipal Corporation, is one of fact well based on evidence and does not warrant interference by us.
7. 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.
8. The appeal provisions contained in subsection (5) of section 13 of the Ordinance afford an adequate safeguard against a landlord acting in bad faith."
9. The learned District Judge too bas, while dismissing the first appeal of appellant before me, relied on this dictum. But to this exception has taken by the learned counsel. Now by going through the judgment of Supreme Court, it would be evident that the landlord therein had succeeded to satisfy various Courts, including the Letters Patent Bench of the High Court, that his claim to reconstruct the premises was entirely genuine. It was obviously for this reason that the tenant's petition for special leave to appeal was refused by Supreme Court, notwithstanding his objection that his landlord had failed to prove that his need was based on reasons and good faith.
10. Respondent in this case would be undoubtedly entitled to the benefit of this judgment, provided from the evidence on record she can be said to have established that her need was notwith-- standing that she failed to prove her reasonableness and good faith, genuine. In order to discharge this burden, we have the evidence of her son Allah Bakhsh and that of two other witnesses, namely, Muhammad Hussain. Overseer Municipal Committee, D. I. Khan and Sayed Sadiq Hussain to support her. The only decisive, evidence in this case would be that of Muhammad Hussain; for it was he who had certified the premises to be in dilapidated condition and consequently issued plans for its reconstruction. He supported in his examination-in-chief the case of respondent. But in cross-examination he conceded that the premises had been inspected by one of his subordinates and it vk as on his report that the Municipal Committee later passed a resolution authorising him to issue plans to respondent for reconstruction. However, his subordinate was not produced in evidence and this emission would render the testimony of Muhammad Hussain entirely worthless. If the evidence of this witness is disregarded, ft would follow that respondent had failed to discharge the burden under issue 5, moreso when the sworn testimony of her two other witnesses, namely, Allah Bakhsh (her son) and Sayed Sadiq Hussain would have no efficacy in view of the sworn testimony of appellant and his three witnesses, namely, Sh. Mohammad Yusuf, Sh. Aziz-ur-Rahman and Haji Muhammad Rahim, in which they have rebutted her claim.
11. Quite apart from this position, the two Courts below seem to have misconceived the scope of respondent's application in which she bad linked her personal requirement with that of reconstructing the premises. These two pleas were evidently destructive of each other Inasmuch as how could respondent conceivably need the shop premises for her own use when on her own showing, these were in dilapidated condition and needed reconstruction. Upon identical facts, we have the judgment o! Supreme Court of Pakistan in the case of Abdullah Baloch v. Adam A.I (PLD 1961 SC 28) in which the following dictum would appear to be apposite- But in the present case we find that the landlord had, in his application to the Rent Controller, linked up the require--ment of reconstruction with his own personal requirement expressly and in the most specific manner. The findings of the Rent Controller specifically negative each of the personal requirements alleged by the landlord. These findings must therefore necessarily react upon the allegation of reasonable and bona fide requirement for reconstruction, for the sake of reconstruction, is not a valid requirement to enable a landlord to obtain eject--ment of a tenant under the Karachi Rent Restriction Act, 1953.
12. It must be a reasonable and bona fide . . . . : '
13. This dictum is relatable, no doubt, to section 10[2) of the now repealed Karachi Rent Restriction Act.
14. But the language of that section being in pari materia with the language of section 13(2) (vi) of the Ordinance in this case, the said dictum would appear to be applicable to this case with equal force. Had this judgment been brought to the notice of the two Courts below. I have no doubt that the fate of respondent's application would have been different; for in there too she had linked her personal requirement (which was found baseless) with that of her need to reconstruct the premises.
15. The not result of this discussion is that this appeal is allowed and the judgments of the two Courts below are set aside. Under the circumstances, however, the parties would bear their own cost.