1. ' This First Rent Appeal arises out of the orders passed by the Rent Controller and Senior Civil Judge, Sukkur on 10-9-1984 whereby he allowed the application for ejectment filed by the present respondent, further directing the present appellant to hand over the vacant possession of the premises in dispute which is a shop constructed on C.S.No,D-947 Jhamandas Road, Gharibabad with one room constructed over it. The ejectment application was filed by present respondent on 14-3-1977 under section 13 of the then prevalent West Pakistan Urban Rent Restriction Ordinance, 1959 on the ground of default and requirement for demolition and reconstruction. In the meanwhile the Sindh Rented Premises Ordinance, 1979 was promulgated which came into effect on 21-11-1979.
2. The written statement in the matter was filed by the present appellant on 25-11-1979 denying the allegations made in the application for ejectment. The applicant filed affidavit in evidence of her attorney, namely, Abdul Aziz and two other witnesses, Muhammad Ismail and Muhammad Saghir on 9-1-1980. The present appellant/opponent also filed his affidavit in evidence. The learned Rent Controller framed the issues regarding the abovesaid two grounds. However, at the time of arguments the learned counsel for the present respondent did not press the issue of default and the same was, therefore, answered in favour of present appellant. But on the issue of requirement for demolition and reconstruction the learned Controller finding the same in favour of present respondent, ordered ejectment. Being aggrieved from the said order the present appellant has filed this appeal.
3. ' I have heard Mr. Abdul Naeem, learned counsel for the appellant. He has submitted that in the present case the application for ejectment was field under the old law i.e, West Pakistan Urban Rent Restriction Ordinance, 1959 and, therefore, the substantive rights of the parties are to be governed under the said law and not the Sindh Rented Premises Ordinance, 1979 which came into effect subsequently. He has submitted that there is difference between the provisions for ejectment on the ground of requirement for demolition and reconstruction as given in the two Ordinances.
4. Section 13(2)(vi) of Ordinance of 1959 reads as under:-- "(vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee, or Town Committee for the area where such building or rented land is situated.
5. ' The Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application: ' Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate."
6. ' As against this the provisions of section 15(2) (vi) read as under:-- "(vi) the premises is required by the landlord for reconstruction or erection of a new building at the site and the landlord has obtained necessary sanction for such reconstruction or erection from the authority competent under any law for the time being in force to give such sanction."
7. ' The learned counsel has pointed out that the material difference between the two provisions is that in the earlier law the landlord is required to prove the reasonableness and bona fides of his requirement for demolition and reconstruction while in the latter law there is no such condition attached. He has further argued that it is incumbent upon the present respondent/landlady to have proved the abovesaid conditions through evidence. Mere obtaining of a sanctioned plan from the relevant authority by itself would not afford any ground for ejectment. He has also placed reliance on the case of Muhammad Hanif v. Mumtaz Ahmed PLD 1986 Karachi 16, wherein Sajjad Ali Shah, J (as he then was) has observed:-- "It would be worthwhile to mention that ejectment application was filed on 12-11-1976 and written statement was filed on 30-3-1977. At that time old law namely West Pakistan Urban Rent Restriction Ordinance, 1959 was applicable. Landlord was examined under the old law and thereafter tenant and his witnesses were examined under the new law namely Sindh Rented Premises Ordinance, 1979, by which the old law was repealed. In the circumstances since the case filed under the old law was pending at the time of repeal of previous rent law, substantive rights of parties would be governed by the provisions of the previous rent law."
8. ' Also in an earlier case of Mrs. E. M. Dean v. Mir Zaman PLD 1960 Karachi 962, it has been held that rights of the parties are to be adjudicated in accordance with the law as prevalent at the time proceedings were instituted. In view of above case-law I have no hesitation to agree with the learned counsel for the present appellant that this case having been filed under the old law the substantive rights of the parties will be governed by the old law. However, the procedure which is to be followed is to be the one provided under the latter law as contemplated under section 27 (2) and (3) which read as under:-- "(2) All appeals, and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed of in accordance with the said Ordinance.
(3) All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any orders made otherwise by the Controller, be continued and disposed of in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance."
9. ' The learned counsel for the appellant has then pointed out to the ejectment application filed by the present respondent. In paragraph 4 of the said application it is averred that the applicant requires the premises for demolition and reconstruction. No specific reason has been assigned in the application for demolition and reconstruction. The affidavit of the attorney of the respondent also in paragraph 5 contains the similar averments. However, it has not been mentioned by the respondent as to what was the condition of the premises or any other ground from which reasonableness or bona fides of the respondent could be ascertained specially when in cross- examination the attorney of the respondent has categorically stated that the possession will not be handed over to the present appellant after reconstruction. This smells of mala fides on the part of the applicant and therefore, I am of the view that the case of the present respondent is hit by the provisions of section 13 (2) (vi) of the old Ordinance of 1959. Even the learned Rent Controller has ordered the ejectment taking into consideration the fact that the present respondent had obtained the approved plan from the Municipal Authorities and therefore, relying on a number of decisions of superior Courts the ejectment has been ordered. No doubt that the case-law as it stands does provide that where the landlord has obtained approved plan from the concerned authority and the landlord intends to improve his property by reconstruction etc. He cannot be prevented from so doing and ejectment is to be ordered but in the present case as observed earlier the rights being governed under old law the present respondent had to, at least, prima facie show the bona fides and reasonableness. It may further he observed that neither the original nor the certified copy of the approved plan has been placed on record or produced alongwith the affidavit in evidence. A photostat copy has been placed on record which was filed alongwith the ejectment application but the same cannot be considered to be an evidence as the attorney of the present respondent who was examined in the trial Court has not said a single word about the said document except for a general statement that approved plan has been obtained.
10. ' It has also been pointed out by the learned counsel for the appellant that while passing the order of ejectment the Rent Controller has in his order observed that the applicant has met with the conditions which are required for opponent's ejectment on the ground of personal bona fide need.
11. No such plea was taken by the present respondent in the application for ejectment. From this observation it appears that the Rent Controller has not fully applied his mind to the facts of the case.
12. ' I accordingly accept this appeal and set aside the order of the Rent Controller and dismiss the application for ejectment filed by the present respondent. However, this will not bar the respondent from taking any further proceedings against the present appellant if so permissible under law or in case such grounds arise. However, there will be no order as to costs.