' For the sake of convenience, I propose to decide these ten appeals by this single order. In all these appeals the common point involved is as to whether the findings recorded by the Rent Controllers on the issue of requirement of the premises in question by the landlord for reconstruction of a new building at the site, under section 15(3)(vi) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") are sustainable in law. Of these ten appeals, three appeals (First Rent Appeals Nos. 1030 of 1987, 170 of 1989 and 244 of 1989) have been brought at the instance of tenants, whereas the remaining seven appeals (First Rent Appeals Nos. 1175 of 1987 to 1181 of 1987) have been filed by the landlord.
2. The brief facts giving rise to these appeals are these.
3. The landlord (Abdul Mchdi) filed separate ejectment applications against the tenants of different tenaments of his building, known as `Kanber Ali Building', standing on Plot No,74, Sheet No,K-4, situated behind Masoomin Hospital, Moosa Lane, Karachi, on the grounds of (1) default in payment of rent, (2) his personal bona fide requirement and (3) requirement for reconstruction. The learned Rent Controller, after recording the evidence of the parties, allowed the ejectment applications only on the ground of default in payment of rent in Rent Case No,828 of 1985 (Appeal No, 1030 of 1987), and allowed it on the ground of requirement for reconstruction of building in Rent Case No,1614 of 1986 and Rent Case No,558 of 1985 (Appeals Nos.170 and 244 of 1989). The grounds of default and personal bona fide requirement were not pressed in the later two cases. In cases of other tenaments, he dismissed the ejectment applications on all the three grounds. Hence these appeals.
4. It may be noted here that Mr. M.M. Mehmoodi, Advocate, learned counsel for the landlord has confined his arguments only on the ground of requirement for reconstruction of the building in all the appeals filed on behalf of the landlord, whereas he supported the order of ejectment even on the ground of default in First Rent Appeal No,1030 of 1987.
5. Before proceeding further, I would also like to state that Mr. S. Amjad Hussain, learned counsel for the appellant in First Rent Appeal No,1030 of 1987, raised a preliminary objection to the effect that since the landlord has not filed any appeal or cross-objection in relation to the ground of requirement for reconstruction of building which has been decided against him the counsel for the landlord cannot assail the impugned order in that behalf. In support of his contention, Mr. S. Amjad Hussain could not cite any authority, whereas Mr. M.M. Mehmoodi, learned counsel for the respondent, to the contrary, drew my attention to the following authorities:-- "(1) Shaikh Muhammad Ashraf v. Shaikh Muhammad Almas PLD 1981 Lah. 52; (2) Abdul Waheed and 7 others v. Muhammad Hussain and another 1983 CLC 922; (3) Shafiur Rehman v. Abdul Ghani 1983 CLC 2020 and (4) Siraj-ud-Din v. Noor Muhammad PLD 1987 Quetta 165."
6. In the first above-noted case, the issue of sub-letting was decided against the landlord. The ejectment application was, however, allowed on the grounds of default and personal requirement.
The tenants went in appeal before the IInd Additional District Judge, Hyderabad, who reversed the finding of the learned. Rent Controller on the grounds of default and personal requirement. The landlord thereupon filed second appeal before the High Court. The landlord's counsel attempted to assail the finding of the learned Rent Controller on the issue of sub-letting. An objection was raised on behalf of the tenants that question could not be agitated by the landlord in second appeal as he had failed to file an appeal against the order of Rent Controller, who decided the issue of sub- letting against him (landlord). Relying upon an agreeing with the decision of the earstwhile High Court of West Pakistan, in the case of Muhammad Tufail v. Barkat PLD 1967 Kar. 151, wherein it was held that respondent can support the order of Rent Controller in an appeal on the ground different from the one which was taken before the Rent Controller, without filing an appeal against the order of the Rent Controller, the High Court over ruled the said objection.
7. In 1983 CLC 922, my learned brother Mr. Justice Saeeduzzaman Siddiqui in relying upon and agreeing with the view expressed in the case of Muhammad Tufail v. Barkat Ali PLD 1967 Kar. 151 held that respondent can support the order of Rent Controller in an appeal on a ground different from one which was taken before the Rent Controller.
8. In the case of Shafiqur Rehman (Supra) the ejectment application was filed on the grounds of personal requirement, nuisance and default etc. The learned Rent Controller allowed the application only on the ground of default. The tenant (Shafiqur Rehman) went in appeal. The landlord filed cross-objections in the above appeal. The learned 1st Appellate Court maintained the finding of the learned Rent Controller on the ground of default, but reversed the finding on the ground of personal requirement and granted application on that ground as well. This led the tenant to file the second appeal before this Court. It came up for hearing before Ajmal Mian, J. (as he then was). It was inter alia, pleaded on behalf of the appellant that the cross-objections filed by the landlord in the rent appeal were not competent particularly when the order was in his favour, and that the first appellate Court was not justified in reversing the finding of the learned Rent Controller on the said issue. The Court held:-- "It may be advantageous to deal with the question of maintainability of the cross-objections. In my view it is an academic question which does not require any detailed examination since the respondent could have supported the ejectment even without filing cross-objections on the ground of personal requirement."
' Ultimately on the question of personal requirement, the High Court reversed the finding of the learned 1st Appellate Court and upheld the decision of the Rent Controller.
9. The facts of the above-noted Quetta case were that the landlord had applied for eviction of the appellant on the grounds of default and requirement of premises for reconstruction. The learned Rent Controller decided the issue of requirement for reconstruction against the landlord but ordered the ejectment on the ground of default. The tenant thereupon filed an appeal before the High Court. An effort was made on behalf of the landlord to support the order of ejectment on the ground of requirement for reconstruction as well. It was opposed by the appellant/tenant by contending that unless cross-objections were filed opposite party was not competent to challenge the decision of trial Court on those issues which have been decided against it. After referring to the authorities reported in 1987 CLC 2029, PLD 1967 Kar. 151, PLD 1981 Lah. 52, 1983 CLC 958, PLD 1973 SC 2295 and PLD 1975 Kar. 684, a learned single Judge of Balochistan High Court held as under:-- "From the discussions made in the above quoted judgments, I have no hesitation to conclude and decide that an eviction order passed by the Rent Controller can be supported on a issue, which otherwise, has been decided against the respondent, to achieve ultimate eviction even without filing cross-objections. Consequently, the objection raised by the learned counsel for the appellant is held to be devoid of force and it is repelled accordingly."
10. I have given my earnest consideration to the submissions made by the learned counsel for the parties. I have also carefully perused the above referred judgments which patently appear to lend support to the contention of Mr. M.M. Mehmoodi, learned counsel for the respondent. There is no quarrel with the preposition that the provisions of Order 41, Rules 23 and 33, C.P.C. Are not applicable to the rent proceedings under the Ordinance. I do not, however, entertain any doubt that the respondent in a rent appeal is entitled to support the order of eviction passed by the Rent Controller by pressing for the reversal of the finding recorded on any issue against him without filing cross-objections. It is, however, to be kept in mind that upon filing of an appeal the entire lis stands reopened and hence the Appellate Court, if so desired by the respondent, may probe into and examine the maintainability of the order of eviction on a ground, which the Controller has decided in favour of the appellant and against the respondent. I would, however, like to insist that notwithstanding the non-applicability of the provisions of filing of the cross-objections such as enacted by Order 41 Rule 23, C.P.C., it is desirable if the respondent at the first available opportunity places on record, in any suitable manner, his intention to assail the order of the Controller on any issue which has been decided against him, so that the appellant may have a reasonable and fair opportunity to make submissions in that behalf at the regular hearing of appeal.
11. The upshot of the above discussion is that the objection raised by Mr. S. A Amjad Hussain, Advocate, the learned counsel for the appellant is held to be devoid of the force and it is over-ruled accordingly.
12. Before proceeding to consider the common issue involved in all these appeals, namely, whether the tenants were to be evicted on the ground of requirement of the premises by the landlord for reconstruction of a new building at the site, I deem it proper to first dispose of the tenant's Appeal (First Rent Appeal No,1030 of 1987), which seeks to assail the order of his eviction on the ground of default. In the ejectment application the appellant was stated to be in default in payment of rent for the period from 1st July, 1973 up to November, 1984 when the rent application was filed. The rate of rent was claimed to be Rs,10 per month. The appellant filed written statement in denial of the respondent's claim. In the written statement filed the averments made in the application with regard to the rate of the rent were not denied. Even in his affidavit-in-evidence, the appellant did not dispute the quantum of rent. It was, however, for the first time, during his cross-examination that he stated that the rate of rent of the premises was Rs,9 per month. The learned Rent Controller answered the issue of default in the affirmation and consequently, ordered the eviction of the respondent on this ground.
13. It was contended by Mr. S. Amjad Hussain, learned counsel for the appellant before me that the learned Rent Controller has misread the evidence on record inasmuch as it was duly proved vide receipts Exhs. A/3/4 to A/4/3 and Exhs.A/4/4 to A/4/8 that the rent upto the period of March, 1986 had been duly paid to the respondent. He also drew my attention to ExhsA/5/1 to A/5/3 and contended that the appellant had paid the sums of Rs,92, Rs,102 and Rs,10 towards property taxes, on behalf of the respondent, and that if the adjustment of these amounts is allowed then there remains no default.
14. I have perused these documents carefully and I do not feel pursuaded to agree with Mr. S. Amjad Hussain, the learned counsel for the appellant. In so far as the first two documents, namely Exhs. A/4/3 and A/4/4, are concerned they are not relevant to the period in dispute, that is from December, 1981 to November, 1984. I find that the learned Rent Controller has in no manner misread or misunderstood the evidence on record. On the contrary, the appellant during his cross- examination had admitted, as rightly pointed out by Mr. M.M. Mehmoodi, that the rent was paid after expiry of every year. The amount of rent paid through these receipts also does not cover the full amount of rent dues for the period of three years prior to the filing of the ejectment application.
Hence, I do not find any justification to interfere with the impugned order of the learned Rent Controller on this issue. There is, therefore, no substance in this appeal and it is accordingly dismissed. The appellant is, however, allowed four months' time to vacate the demised premises and hand over it's vacant possession to the respondent landlord subject to payment of monthly rent to the respondent regularly.
15. The objection against the maintainability of the cross-objection has already been overruled and that aspect of the matter will be considered and disposed of alongwith other appeals.
16. I shall now proceed to consider the contentions of the learned counsel for the parties with regard to the following issue, which is involved in all the appeals:-- "Whether the premises are required by the applicant for reconstruction?"
17. It may be reiterated here that one of the learned Rent Controllers has decided the above issue in the affirmative in Rent Case No,1614 of 1986 and Rent Case No,558 of 1985 (First Rent Appeals Nos.
170 of 1989 and 244 of 1989); , whereas another Rent Controller has answered it in the negative in the other 8 rent cases (First Rent Appeal No,1030 of 1987 and First Rent Appeals Nos. 1175 to 1181 of 1987).
18. In support of his case the landlord had filed his own affidavit-in-evidence along with duly approved building plan ExhA/1 and the Sanction Letter, dated 29th September, 1983 (Exh.A/2). The case of the tenants in this behalf was that the applications were not maintainable as they were filed after the expiry of the period for which the above sanction was made effective as per letter attached with the approved plan. The contention raised on behalf of the landlord before the Rent Controller, on the other hand, was that the legal requirement of getting the plan approved for reconstruction of the building having been duly complied with, the Rent Controller was legally obliged to order the eviction of tenants on the ground of requirement for reconstruction of the building on the plot.
19. Mr. M.M. Mehmoodi, learned counsel for the landlord reiterated the same contention before me which were made before the learned Rent Controllers. He has obtained necessary sanction for reconstruction or erection from the authority competent under the law for the time being in force.
In his submission, the proposed building plan had been duly approved by the competent authority on 27th September, 1983 vide ExhA/1, a covering letter putting certain conditions for the grant of the permission (ExhA/2) is also dated 27th September, 1983. The landlord had already obtained the necessary sanction, hence the applications for ejectment of the tenants on the ground of requirement for reconstruction were properly made and the learned Rent Controller has erred in rejecting the applications of the landlord. In support of his contention the learned counsel for the landlord invited my attention to the following authorities:-- ' (1) Muhammad Akbar and another v. Dr. Muhammad Rafique etc. 1980 SCMR 483; (2) Rashid Brothers, Faisalabad v. Ch. Muhammad Anwar Khan and another 1981 SCMR 782; (3) Messrs Pak Army Furnishing Stores v. Syed Ali Akbar Rizvi and 3 others PLD 1985 Kar. 201; (4) Ch. K.M. Bajwa and 2 others v. Asghar Ali and 3 others 1987 C LC 2256; and (5) Hashwani Sales & Service Limited v.
Karachi Building Control Authority and 15 others PLD 1986 Kar. 393,
20. It was, on the other hand, submitted by Mr. Amjad Hussain, learned counsel for the tenant/appellant in First Rent Appeal No,1030 of 1987, that the sanction accorded, vide Exh.A/2, was for a limited period of one year from the date of its issue. It automatically lapsed on 26th September, 1984, whereas all the ejectment applications were presented on 29-11-1984. Placing reliance on an authority of this Court reported in 1985 CLC 1303, it was contended by Mr. Amjad Hussain, Advocate that since the sanction of plan issued by the competent authority had ceased to exist on the date of filing of the ejectment applications, the applications were not maintainable in law. He further urged that from 1984 till today the sanction was not got renewed and hence it is not open to the landlord even now to contend that there does exist a sanction of a competent authority for reconstruction of the building. The other learned counsel representing the tenants in other appeals adopted the arguments made by Mr. Amjad Hussain. Mr. Yousuf Khatri, learned counsel for the tenant in First Rent Appeal No,244 of 1989, relying upon the definition of the word 'lapse' as given in (1) Black's Law Dictionary, 5th Edition page 1022, (2) Chambers 20th Century Dictionary; and (3) Oxford Dictionary at page 330, contended that upon expiry of the period fixed by ExhA/2 for construction of the building, the sanction had become void before the date on which the ejectment application was presented before the Rent Controller, and hence it was of no legal effect. Inviting my attention to Regulation No,15(1) of the Karachi Building and Town Planning Regulations, 1978 wherein it is provided that if at any time permission is found to have been obtained pursuant to misrepresentation etc., it may be cancelled. Then he referred to the Regulation No,17 wherein it is further provided that 'every person who carried out building work or demolition work shall comply with the terms and conditions accompanying the sanction' and, therefore, emphasised that if the sanction had lapsed there was no question of complying with the conditions made thereunder and the landlord may not even carry out the construction on the basis of the lapsed sanction.
' Mr. Rashid A. Rizvi, learned counsel for the appellant in First Rent Appeal No,170 of 1989 also adopted the arguments of Mr. Amjad Hussain. He further contended:
(i) that the application for ejectment in this case was hit by the principle of res judicata.
(ii) that the plan of the building was got approved fraudulently inasmuch as the death of co-owner Abdul Ghani, who had died on 1st December, 1974 was not disclosed, and consequently no Succession Certificate nor Letter of Administration was obtained by the appellant for representing the interest of the said deceased co-owner;
(iii) that the tenements Nos.1 and 7 in question had been obtained on payment of pugree and hence the Sindh Rented Premises Ordinance, 1979 was not applicable to the case as held in PLD 1986 Kar.
16.
(iv) that since no action to seek eviction of certain other tenants in this building had been taken, hence reconstruction of the building was not possible as held in 1984 CLC 1713.
Having heard the learned counsel for the parties and after perusal of the evidence on records and the authorities cited before me, I am clearly of the view that in presence of authoritative pronouncement of the Honourable Supreme Court in the case of the Rashid Brothers, Faisalabad v.
Ch. Muhammad Anwar Khan 1981 SCMR 782 I should immediately repel the contentions of the learned counsel for the tenants as being without substance. The facts of the case before the Honourable Supreme Court, in so far they are relevant to the issue in hand, were that the shop in dispute was sought to be vacated by the petitioner as it was required for reconstruction by the landlord on the basis of the duly sanctioned plan by the Municipal Corporation, which was sanctioned in 1964 and this sanction was valid for one year. The Supreme Court repelled the above plea, which was urged before it in the year 1980, and held as under:-- "As for the plea that the sanction was valid only for one year it has been pointed out that to get sanction renewed is only a formality and it is not reasonable for the respondents-landlords to get sanction renewed every year during the pendency of the proceedings which have been going on for the last many years."
' It is indeed not necessary now to refer to any other authority although there are several reported decisions, including a division bench judgment of this Court reported in PLD 1986 Kar. 393, wherein it is held that mere expiry of the period for which such sanction remains valid, cannot defeat the proceedings initiated by the landlord for ejectment of the tenant. The single bench authority in the case of Zarin Shah v. Wali Muhammad and others 1985 CLC 1303, wherein it is held that the approval of the building plan having lapsed earlier before the applications for ejectment were filed and failure to get it renewed or revalidated by the landlord during the pendency of the application for ejectment and even during the pendency of the appeals in the High Court, the condition precedent as embodied in clause (vi) of subsection (2) of section 15 remained unfulfilled and hence the applications for ejectments were not maintainable, stands over ruled by implication.
' Now I would like to deal with the objections raised by the other learned counsel for the tenants.
Taking up the plea of Mr. Rashid A. Rizvi, with regard to the proceedings adopted against his client being hit by principle of res judicata, suffice is to say that this principle is not attracted unless there had been adjudication on the merits of the case. The earlier application filed by the landlord on the ground of reconstruction of the building was admittedly dismissed in default, as per statement of Mr. Rashid A. Rizvi, or that it was dismissed having been withdrawn by the landlord, as contended by Mr. M.M. Mehmoodi, the fact remains that there had been no adjudication on the merits of the case. This plea is, therefore, misconceived and it is accordingly repelled. In so far as his other plea, namely, that the plan was got approved through misrepresentation and hence it was liable to be cancelled, it is to be noted that unless the said plan is cancelled in accordance with the law it holds the field and it was not for the Rent Controller to presume and for that reason to hold that the plan was got sanctioned by misrepresentation of the facts. This plea is also, therefore, repelled.
In so far as the payment of Pugree is concerned, it is admitted that it was paid to the outgoing tenant and there is no evidence on record to show that the landlord had received any monitory consideration while inducting the appellant in possession of the premises. No such plea was even taken in the written statement. Hence, it does not call for any adjudication at this stage, Likewise the next objection that no action to seek eviction of certain other tenants had been taken, was not as such pleaded in the written statement by the appellant and hence it cannot be entertained at this stage. Besides, Mr. M.M. Mehmoodi, learned counsel for the appellant has stated at the bar that the tenants, against whom the proceedings have been adopted, have already handed over the possession by amicable settlement to the landlord. All the objections thus raised by Mr. Rashid A.
Rizvi stand over ruled.
' Now, I take up the additional objections raised by Mr. Yousuf Khatri, learned counsel for the tenant in First Rent Appeal No,244 of 1989. In view of the decision already recorded regarding the validity of the sanctioned plan, the submissions made by Mr. Yousuf Khatri on the basis of the definition of the word `lapse' do not require any serious consideration.
' In the result, the appeals bearing First Rent Appeals Nos.1175, 1176 1177, 1178, 1179, 1180 and 1181 of 1987, filed on behalf of the landlord are allowed and the findings of the learned Rent Controller on the issues of maintainability of ejectment application and the requirement of the respective tenements for reconstruction of building are reversed; whereas the appeals filed on behalf of the tenants viz. First Rent Appeal No,1030 of 1987, First Rent Appeal No,170 of 1989 and First Rent Appeal No,244 of 1989 arc dismissed and the order of eviction passed against the respective tenants are maintained. The findings of the learned Rent Controller on issue No,1 in Rent Case No,2828 of 1985 (First Rent Appeal No,1030 of 1987) is maintained, but his findings on issues Nos. 2 and 3 are reversed. The finding on issue No,2 of Rent Case No, 558 of 1985 (First Rent Appeal No,244 of 1989) and the finding on issue No,3 in Rent Case No,1614 of 1986 (First Rent Appeal No,170 of 1989) are maintained. All the ten appeals thus stand decided in the manner indicated above.
' I would, however, allow four months' time to the tenants to vacate and hand over the physical and peaceful possession of the tenaments/premises in their respective occupations, subject to, however, their paying the monthly rent regularly to the appellant.
' The parties are left to hear their own costs.