' This appeal is against the order, dated 10th March, 1991 passed by the learned Rent Controller, Peshawar Cantonment, in Case No,4 of 1989, directing the appellant to hand over vacant possession of House No,4-A/40, Shafi Building, Tipu Sultan Road, Peshawar Cantonment, within 30 days from the date of the order under section 17 of the Cantonments Rent Restriction Act (XI of 1963).
2. Facts giving rise to this appeal are that Mian Muhammad Akhtar, hereinafter referred to as the respondent, filed an application against Haji Muhammad Ashraf, appellant, for his eviction from House No,4-A/40 aforesaid on the ground that he requires it in good faith for his bona fide personal use after amalgamating the same with his adjacent House (No,4-A/26) for which he had obtained the requisite sanction from the Cantonment Board, Peshawar.
3. In the replication, besides a number of legal objections, the plea of the respondent was controverted by the appellant mainly on the ground of mala fides with a view to enhancing the rent. In this context it was also averred that the disputed quarter, which had been wrongly described as .a house was below the status of the respondent who was General Manager, WAPDA.
4. On the pleadings of the parties the learned Rent Controller framed the following issues:--
(1) Whether the petitioner has a cause of action?
(2) Whether the petition is competent in its present form?
(3) Whether the petitioner is estopped by his conduct to bring the present petition?
(4) Whether the petition has been brought with motive to enhance the rent?
(5) Whether the petition is mala fide, if so, to what effect?
(6) Whether the petitioner requires the suit house for his personal use bona fidely?
(7) Relief.
' The respondent examined himself whereas the appellant, besides himself, examined Sayed Noor Muhammad Shah. After appraising this evidence the learned Rent Controller decided Issues Nos.1, 2 and 6 in favour of the respondent whereas issues Nos.3, 4 and 5 against the appellant. During the pendency of the ejectment proceedings, the respondent had retired from service as Chief Engineer WAPDA, therefore, he had also moved an application for the eviction of the appellant on the additional ground provided for under section 17-A(1)(b) of the Cantonments Rent Restriction Act, 1963. This application was also vehemently contested by the appellant. This ground also found favour with the learned Rent Controller. As a cumulative effect of these findings, the learned Rent Controller directed the appellant to put the respondent in possession of the disputed premises, within 30 days of the order which had been passed on 10th March, 1991. Hence this appeal.
5. In support of this appeal the learned counsel for the appellant made the following submissions:- -
(a) That the respondent's mala fides in evicting the appellant from the house is proved from multifarious litigation pending between the parties. Reference was made to (i) the attachment of the shop under section 145, Cr.P.C. At the instance of the respondent/landlord; (ii) disconnection of water supply of the house at the instance of the respondent which was subject-matter of civil suit filed by the appellant against the respondent.
(b) That demolition of the building on the same site and necessary sanction from the Cantonment Board which was a sine qua non for reconstruction was lacking in the instant case and that, in any case, amalgamation of the house with that in dispute was not within the contemplation of section 17(2) (vi) of the Cantonments Rent Restriction Act, 1963. Reference was made to; (i) Umar Daraz v.
Mst. Fatima and 13 others 1986 CLC 103 and (ii) Aziz Begum v. Guarantee Life and Employment Insurance, Lahore PLD 1975 Lah.
594.
(c) That the house in dispute which stands constructed on 3-1/2 Marlas and that of his own is far below the life style and the status of the respondent who has recently retired as Chief Engineer, WAPDA.
(d) That in the alternative, if his father late Mian Muhammad Shafi could live alongwith the respondent and his brothers and their huge families in House No,4-A/26, he could very conveniently live therein without evicting the appellant. Reliance was placed on Muhammad Hafeez and another v. Muhammad Azim and 9 others 1984 CLC 1083.
(e) That the appellant was neither allowed to put in reply to the petition for his summary eviction under the provisions of section 17-A(1)(b) of the Cantonments Rent Restriction Act nor he was enabled to controvert the petition to lead evidence in rebuttal thereof whereby he was prejudiced in his defence and that, in any case, it was violative of the principle of natural justice enshrined in the well known maxim `audi alteram partem' (No man shall be condemned unheard).
(f) That the learned Rent Controller has erred to place reliance on the solitary statement of the respondent to establish his bona fide need of the disputed house for his own occupation.
6. Conversely, the learned counsel for the landlord-respondent contended that the need of the respondent to occupy the disputed house prior to his retirement was bona fide. According to him, the respondent's plea from the outset had been that he required the house in dispute for his own occupation after its amalgamation with his house (No,4-A/26) moreso when he had retired from service. In this context the learned counsel placed reliance on the photo copies Exh.P.W.1/3 of statutory sanction recorded by the Cantonment Board, Peshawar for amalgamation of the two houses. He has also submitted that amalgamation of the house in dispute with that of the adjacent house for personal requirement of the respondent certainly fell within the purview of section 17(2)
(vi) of the Cantonments Rent Restriction Act. Reference was made to Abdul Qayyum and another v.
Mst. Khurshid Jehan 1984 SCMR 710 and Akhtar Sultana v. Dr. Abdur Rauf Nagi PLD 1978 Lah. 347 in support of the above argument. The learned counsel for the respondent relied upon the authority of Rajab All v. Darius B. Kandawalla and another PLD 1984 Kar. 14 in support of his two-fold submissions; (1) that once the landlord has elected to live in his own house his demand for eviction of his tenant from the said house would be presumed to be bona fide and (2) that it is not for the tenant to determine suitability or sufficiency of accommodation for the landlord but it is entirely within the right of the landlord to decide if he wants the whole of the building or portion thereof for his residence.
7. The first and foremost point falling for determination is if the respondent, who is admittedly owner of House No,4-A/26 which he intends to amalgamate with House No,4-A/40 in dispute, requires the same in good faith for his own use and occupation of his spouse and children. The case of the respondent is that he intends to occupy both the premises after amalgamation as sanctioned by the competent authority alongwith his family members. From the perusal of the record I find that the statutory sanction photo copy Exh.P.W.1/3 (4 sheets including the proposed plan of extension of House No,4-A/26) has been accorded by the Cantonment Board duly signed by the Additional Cantonment Executive Officer on 17-9-1988. The first contention of the learned counsel for the appellant that the landlord failed to prove or bring on record the statutory sanction accorded by the competent authority for reconstruction of the premises thus stands repelled.
8. The objection of the learned counsel for the appellant that attachment of the shop in occupation of the appellant under section 145, Cr.P.C. And disconnection of the water supply of the house at the instance of the respondent support the mala fides of the landlord is not convincing. The parties are locked in litigation over the disputed house since quite some time and the two incidents are not sufficiently suggestive of the mala fides of the respondent in evicting the appellant from the disputed house. The incidents aforesaid do not militate against the bona fide need of the respondent to evict the appellant from the disputed house in order to amalgamate it with his own adjacent house.
8-A. The learned counsel for the appellant appears to have taken a wrong impression that the respondent had failed to prove or bring on record the statutory sanction by the competent authority for reconstruction of premises. In this context reference may be made to the aforesaid sanction photo copy Exh.P.W.1/3 (4 sheets) including the proposed plan what has been described as `extension of House No,4-A/26'. The cases of Umar Daraz and Aziz Begum cited by the learned counsel for the appellant are not relevant to the objection so raised. The ratio in the two cases cited above was that the landlord intending to demolish existing structure and seeking eviction of tenant on the ground of reconstruction must obtain necessary sanction for construction from the relevant authorities mentioned in the law applicable to the parties and in the absence of any such sanction the application for ejectment was not maintainable. There is no cavil with this proposition.
To the utter dismay of the appellant, in this case, the respondent has obtained necessary sanction from the Cantonment Board for extension of his own house to that of the disputed house.
' Another legal objection of the learned counsel for the appellant, as stated earlier, was that 'amalgamation' of the house with that in dispute did not fall within the purview of section 17(2)(vi) of the Cantonments Rent Restriction Act and laid stress on the words 'demolish the building for constructing a new building on the same site' enacted in clause (vi) ibid. Clause (vi) ibid of the Cantonments Rent Restriction Act has been borrowed from unamended subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). I tend to agree with the learned counsel for the appellant that the authority of Mst. Akhtar Sultana v. Dr. Abdur Rauf Nagi PLD 1978 Lah. 347 does not strictly apply to the facts of this case in that section 13(2) of the Ordinance was substantially amended and it was in that context held that the word 'reconstruction' occurring in section 13(2)(vi) of the Ordinance would not imply that it would not be necessary for the landlord in every case to prove demolition of the entire building and to rebuild new one in order to succeed in eviction of tenant. The cases on the point laying down this proposition are: (1) Muhammad Gul v.
K.B. Mian Feroze Shah PLD 1964 (W.P.) Peshawar 11 and (2) Syed Shin Gul v. Haji Abdul Majid PLD 1968 Quetta 45.
9. Nonetheless clause (vi) ibid read with section 17(4)(a)(i) of the Act manifestly confers upon the landlord right to seek eviction of the tenant on the ground that he requires the house in possession of the tenant in good faith for his own occupation or for the occupation of any member of his family after amalgamating it with his own adjacent house which does not meet his requirement or else he could not conveniently live therein without evicting the tenant. The case of Muhammad Hafeez and another cited above by the learned counsel for the appellant does not help him because in that case reconstruction and personal requirement were linked up and was found that requirement and reconstruction of premises was neither found reasonable nor made in good faith.
In the instant case, the element of good faith is manifest from the fact that the respondent is not shown to have got any other suitable accommodation for his own occupation. Consequently, the argument which is not otherwise proved that the father of the respondent had been living alongwith respondent, his brothers and their huge family in the adjacent house he could conveniently live therein without evicting the appellant is not tenable. The values of the society have tremendously changed over the years and looking to the status and standard of living of the appellant, who was Chief Engineer, WAPDA, could not be said to be able to live in that old house which was in the occupation of his father.
10. A bare perusal of the order-sheets of the lower Court would repel the objection raised in item (e) of the arguments of the learned counsel that the appellant has not been afforded an opportunity to controvert the petition by leading evidence in rebuttal qua the application under section 17-A(1)
(b). During he pendency of the petition, the respondent was retired on completion of his 25 J D years service. Consequently, he moved an application pressing into service the additional ground of eviction of the appellant under 17-A(1)(b) ibid. The order- sheets of Case No,129 of 1990 from 6- 12-1990 to 10-3-1991 indicate that the appellant was attending the proceedings in which this additional ground was taken up by the respondent but he did not himself deem it proper to file written statement or to lead evidence in rebuttal, therefore, he cannot now turn round and say that he has not been afforded an opportunity to controvert the ground of eviction under section 17-A(1)
(b) ibid.
11. There is ample evidence on the file that the respondent has since been retired from WAPDA and even if the other grounds of eviction under section 17(2)(vi) and 17(4)(a)(i) are not available to him he can still press into service the ground of eviction of the appellant which is available to him under section 17(1)(b). The requirements provided for in this section have also been proved by the respondent and there is nothing to suggest that he is not entitled to avail of the provisions aforesaid.
12. In the instant case, the finding of the learned Rent Controller on the point that the respondent requires the disputed house in good faith for his occupation or for the occupation of any member of his family after amalgamating it with his own adjacent house is unexceptionable which is hereby affirmed. In addition to that, I also agree with the finding of the learned Rent Controller that the respondent being a salaried employee having retired is entitled to evict the appellant. He has, therefore, rightly ordered the appellant to deliver vacant possession of the disputed house within a period of two months as laid down under section 17-A(1)(b) of the Act.
13. In the light of what has been observed above, the order of the learned Rent Controller is proper one and I dismiss this appeal with costs.