1. ' This appeal is directed against judgment dated 30-9-1989 passed by learned Civil Judge-I-cum- Controller, Quetta whereby application for ejectment of appellant from shop No, 3-14/29 Masjid Road, Quetta has been granted.
2. ' Facts briefly stated are that on 1-3-1986 respondent filed an application under section 13 of Balochistan Urban Rent Restriction Ordinance VI of 1959, seeking eviction of appellant from Shop No, 3-14/29 Masjid Road, Quetta mainly on the ground of demolition, reconstruction, bona fide use, and occupation of newly-constructed premises. Appellant contested the proceedings and filed datailed written statement on 19-5-1986 denying the claim. It was pleaded that no cause of action had accrued to the applicant, besides rate of rent was also disputed. Trial Court on 20-5-1986 framed following 4 issues:--
(1) What is the actual rate of rent?
(2) Whether the applicant requires the shop in dispute in good faith for demolition and reconstruction?
(3) Whether the applicant requires the shop in dispute in good faith for his personal bona fide use and occupation?
(4) Relief.
3. ' Record reveals that respondent/landlord examined four witnesses namely (i) Haji Jamil Ahmed,
(ii) Noor Hussain, (iii) Shaukat Hussain and (iv) Ishtiaq Hussain besides his own statement to substantiate claim regarding reconstruction and personal bona fide requirement. Whereas appellant in rebuttal examined 7 witnesses apart from himself. It may be seen that during the pendency of proceedings defence of appellant was struck off on account of default in payment of rent for the month of May 1986, but on appeal the order was set aside by the High Court in F.A.O. No, 2/87 vide judgment dated 21-4-1987. However after completion of proceedings the trial Court on appraisement of evidence adduced by parties, accepted claim of respondent/landlord relating to ejectment of appellant by means of judgment dated 30-9-1989. Being dissatisfied, present appeal was filed on 11-5-1989.
4. ' Mr. Muhammad Riaz Ahmed, learned counsel for appellant mainly urged that evidence does not substaintially establish ground of personal requirement of the premises. It was alternately argued that even if assertions of landlord are accepted only bona fides in respect of shop have been proved whereas on the basis of site plan proposed building consists of basement, shop on the ground floor, and second story. Therefore, appellant would be entitled to at least a portion comprising of basement or second storey.
5. ' Whereas on the other hand Mr. Ehsanul Hach learned counsel for respondent argued that appellant is jobless and evidence adduced on record fully establishes reasonable requirement for raising construction and bona fide personal need of landlord in respect of newly-constructed building. He submitted that provisions of section 15(4) of the Rent Restriction Ordinance provide adequate protection by the respondent/landlord for his own use.
6. ' I have given due consideration to the above respective contentions of learned counsel for parties in the facts and circumstances as well as the law applicable to it. Thorough evaluation of evidence on record discloses that shop in dispute is an old VII type building constructed towards year 1935.
7. Respondent has obtained necessary sanction for construction of new building on the basis of approved plan. Nothing substantial has been brought on record to negate propriety and genuineness about demolition and construction of building on the site. Factually, unless otherwise rebutted by strong circumstances; very intention of landlord to improve the old building, which is undisputedly of temporary nature, being VII type, clearly supports element of reasonableness.
8. However, learned counsel for the appellant to meet this situation has relied upon reported judgments in cases; (i) Muhammad Hafeez and another 1984 CLC 1083 and (ii) M/s, Service Industries Lahore and another v. Manawar Sultana and others 1984 CLC 3011.
9. ' In the first mentioned report, it has been held that requirement of landlord for demolition and reconstruction was not reasonable. Besides nature of new construction was not found to be in consonance with bona fides of claim for ejectment. In the second quoted case Court observed that mere desire to throw out tenant, from rented premises did not meet requirements of law. Landlord, therefore, has additional obligation to establish his reasonable requirements independent of protection clause. Both these reports do not aptly apply to facts in hand. It may be seen that circumstances of petitioner's genuineness for construction, coupled with nature of existing building structure, supported by landlord's resources and completion of necessary formalities; besides appellant's failure to effectively rebut above-stated factors justifiably helped the Controller in recording satisfaction concerning reasonableness of claim for demolition and reconstruction.
10. Additionally it is profitable to refer observation in case Haji Maula Dad v. Haji Syed Sardar Khan PLD 1972 Quetta 39. Relevant portion is reproduced below:-- "(11) I may explain here that this elaborate classification of structures is a peculiarity of this province, and was the consequence of the 1935 earthquake. This province is an earthquake zone and permanent buildings, strong enough to resist earthquakes, are very expensive because they have to be made of cement and steel. When Quetta was rebuilt after the earthquake, all permanent buildings had to conform to the standards for resisting earthquakes. But, as a temporaty measure, the Government permitted katcha structures to be built. The class VII type of structure is the cheapest of these temporary structures, and its main characteristics are that it is cheap and ugly. However, it was never meant to be permanent. That is also the impression of the citizens in Quetta and that is why the deceased respondent admitted in his evidence that the shop was a katcha structure. This admission corroborates the appellant's evidence, and is sufficient to prove the reasonableness of his claim. But the Courts below rejected his claim by ignoring the respondent's admission, therefore, I drew Mr. Munawar's attention to it. Learned counsel candidly admitted that the shop was a katcha structure, but he feebly submitted that the appellant's requirement for reconstructing it was not reasonable because it was not dilapidated or dangerous.
11. For the reasons which I have given earlier, I cannot accept this submission, and I have no doubt that the Courts below erred in rejecting the appellant's plea that his claim for construction was reasonable.
12. ' On the other hand even if stand of respondent about nature of building is entertained same by itself cannot deprive landlord from possible improvement of his property. Reference may be made to Allah Ditta v. Shahzadi Bilquis 1980 SCM R 41: "It is not necessary that a building must be so old and dilapidated that it is about to fall down before the landlord can be considered justified in wanting to demolish and reconstruct it. Every person has the right to improve his property; 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. 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 reconstruct it within a specified period is sufficient to establish his bona fides."
13. ' From the above discussion, I am inclined to hold that conclusions of Controller concerning reconstruction of new building and bona tide personal requirement of suit premises by the appellant are unexceptional.
14. ' Now considering objection about restoration of either basement or upper storey to tenant, after reconstruction of new building, it may be seen that appellant has not set up this stand during trial of the case. However, evidence pertaining to personal bona fide need suggests that proposed building is a compact unit, whole of which was required by respondent/landlord. Even otherwise objection has been raised for the first time during arguments, and absolutely no material is brought on record to substantiate his claim in that behalf. It has been observed in case Abdul Qadir v. Mst. Parveen and others 1983 CLC 1451 that new pleas cannot be permitted at appellate stage. In the given circumstances of this case I am respectfully inclined to follow said view.
15. Respondent/landlord has proved his bona fide requirement of suit premises for personal use after reconstruction, whereas appellant could not appropriately rebut the same. Moreover provisions of section 13(4) and (5) of Rent Restriction Ordinance itself provide sufficient safeguards, if appellant violated requirements of law.
16. ' For the foregoing reasons I do not find any merits in this appeal, which is accordingly directed to be dismissed.
17. ' Parties are, however, left to bear their own costs.