1. ' This judgment will dispose of First Rent Appeals Nos.7 and 14 of 1989. Both the appeals are directed against judgment dated 8-12-1988, passed by the Ist Senior Civil Judge and Rent Controller, Hyderabad.
2. ' Briefly the facts arc that Irfanullah Khan, the appellant in F.RA. No,7 of 1989 (hereinafter referred to as the landlord), filed Rent Application No,370 of 1986 against Ahmed Hussain, the appellant in F.RA.
3. No,14 of 1989 (hereinafter referred to as the tenant) for his eviction from a shop, situated in Quarter No,316-C, Unit No,VII, Latifabad, Hyderabad. In the application the case of the landlord was that in the year 1969-70, the accommodation in the quarter was more than his requirement and, therefore, to augment his income, he temporarily converted some rooms of the quarter into three shops, out of which one was rented out to the tenant. The last tenancy agreement was executed between the parties on 10-7-1984 for a period of 11 months commencing from 30-6-1984 and it was not extended subsequently, although such demand was made by tenant as the landlord needed the premises for the use of his family. It was pleaded that in all there were 13 members of the family. He had 11 children, excepting three, the rest of the children were major and the youngest one was 10 years old. His son Farmanullah, who was working in WAPDA at Hyderabad, was 29 years old, Zafarullah who was doing business, was 27 years and Qamarullah Khan, who was employed in Indus Steel Pipe Mills, Kotri, was 25 years old. All the above three sons had to be married as soon as the problem of accommodation was solved. To meet the requirements of 'his family members the landlord wanted to reconstruct the quarter with first floor thereon. For such purpose he had got the construction plan sanctioned by the Building Control Department of Hyderabad Development Authority on 20-11-1986. It was disclosed that the landlord and his above family members were in possession of two living rooms which were in dilapidated condition and insufficient to accommodate the 13 members of the family. The college and school-going children had no place for their study and because of shortage of accommodation, their health and education were affected adversely. The eviction was, accordingly sought on the ground of reconstruction of the building and personal bona fide use.
4. ' The tenant filed his written statement, wherein he admitted the relationship of landlord and tenant between the parties and that the tenancy agreement was not renewed but contended that he continued to be statutory tenant after the expiry of the said agreement. He stated that the shops are not temporary construction and are situated in commercial area Latifabad. It was pleaded that the shop cannot be got vacated from the tenant for the residential use. The ground of personal requirement was alleged to be mala fide as the same had been raised because of the refusal of the tenant to accept exorbitant enhancement in the monthly rent, demanded by the landlord, to compel him to accede to unreasonable demand. It was further pleaded that there was no increase in the number of the family members of the landlord and the allegation that the three sons of the landlord were to be married was denied. Similarly the plea of reconstruction was termed as mala fide and it was alleged that the plans were got approved with such intention. It was, however, stated by the tenant that he was prepared to cooperate with the landlord for reconstruction of the first floor provided the shop in his possession was allowed to remain intact and the landlord agreed to put him in possession of the shop after reconstruction. It was further stated that in case the first floor is constructed, it would provide sufficient additional accommodation to meet the requirements of the family of the landlord.
5. ' The landlord examined himself and his two sons Farmanullah Khan and Qamarullah Khan in support of his case and the tenant examined himself.
6. ' The learned Rent Controller at the time of passing of the order framed only one issue with regard to the bona fide requirement of the premises for the use of the family of the landlord but omitted to determine the issue whether the premises was required for reconstruction of the building. The issue framed by the learned Rent Controller was decided in favour of the landlord by the impugned order.
7. ' The landlord has filed F.RA. No,7 of 1989, as stated above, being aggrieved against the inadvertent omission on the part of the Rent Controller in framing the issue on the ground of requirement of the premises for reconstruction, while the tenant in F.RA. No,14 of 1989, has assailed order of his eviction on the ground of requirement of the landlord of the premises in good faith for the occupation and use of his family.
8. ' I have heard the learned Advocates Mr. Kamaluddin for the landlord and Mr. Hassan Mahmood Baig for the tenant.
9. ' It may be pointed out that the landlord had also filed Rent Case No,371 of 1986 against Syed Asif Ali, the tenant of the other two shops on the similar grounds, which was allowed. The eviction order was challenged in appeal which was dismissed. The petition for leave to appeal filed before the Supreme Court was also dismissed.
10. ' The learned Advocate for the tenant contended that the ground of personal requirement was based on false pleas. Firstly it was not correct that the shops were constructed in the quarter but in fact they were constructed on the excess land. Secondly, the number of the family members of the landlord was the same at the time of filing of the Rent Case as it was when the shop was let out. It was also urged by him that the landlord has given inconsistent and false evidence that the iron bars were not projected from the roof top to facilitate construction of the additional floor but in the case filed against Syed Asif Ali, it was admitted by him. Similarly in Asif's case he had admitted that his son was doing business in the space adjoining the tenant's shop, but in this case, he has denied such a suggestion. He has falsely denied that there are only shops on both the sides of the road where the shop in question is situated although he had admitted the above fact in the case filed against the other tenant. On this basis it was contended that it would not be safe to rely upon the evidence of the landlord. According to him, the upper floor can be constructed without disturbing the tenant and the accommodation thus made available will be sufficient to fulfil the need of the landlord and his family. It was lastly urged that the commercial premises cannot be got vacated for residential purposes. In support of his last contention he relied on the cases of Moinuddin v.
11. Master Bashir Ahmed 1987 CLC 472; Ulfat Hameed v. Birjis Khatoon PLD 1982 Kar. 823; Muhammad Aqeel v. Khair-un -Nisa 1984 CLC 2912 and Jamil Ahmed v. Sultana Jahan Begum PLD 1974 Kar.
12. 319.
13. ' It is not disputed that the apellant has 11 children. The tenant was inducted in the shop in the year 1969-70 and the Rent Case was filed in the year 1986, i.e. after about.16 years. The last child of the landlord is stated to be 10 years old. Therefore, it is not correct to say that the number of the family members was the same at the time of filing of the case as it was when the premises was rented out to the tenant. The approved plan, which had been placed on record, shows that the landlord has proposed to construct three bed rooms on each floor and so also drawing rooms on both the floors. Presently the landlord is living in two-room premises. The said two rooms by no stretch of imagination can be treated as sufficient for the family of 13 members. The B fact that two sons of the landlord are in service and one son is doing business is not denied. The tenant had denied that they were likely to be married or that the marriage is being postponed for want of accommodation.
14. But there are no circumstances which may come in the way of reaching the conclusion that the aforesaid three sons of the landlord, have got to be married and that the present two rooms are not sufficient for the requirement of the family. Even if the landlord constructs three bed-rooms on the first floor, without disturbing the tenant, for the use of his aforesaid three grown-up sons, the present two rooms on the ground floor cannot be said to be sufficient for the remaining eight family members of the landlord. More than six years have passed away since institution of the case and the ages of the other children of the landlord- also have advances and so also their need for more and suitable accommodation. Under these circumstances there is no escape from the conclusion that the landlord needs the premises in dispute in good faith for the use and occupation of his family. Merely the fact that the landlord has given statement at variance with regard to protruded iron bars on the roof top or the C place of business of his son, does not mitigate the bona fides of the personal requirement. It is also immaterial if there are shops on both the sides of the road where the premises in question is situated.
15. ' I also do not find any substance in the submission made by the learned Advocate that the shop in dispute is situated on excess land, as it has not been pleaded that the plan got approved for construction on the plot, does not cover the land on which the shop in dispute is situated. It is the requirement of the Sindh Buildings Control Ordinance, 1979 that the construction can be raised only in accordance with the sanctioned plan on the land owned by the builder. The landlord, therefore, is under an obligation to raise the construction accordingly. It is not the case of the tenant that if the construction is raised allowing the shop to exist as it is, it would still be in consonance with the approved plan.
16. ' Coming to the last contention of the learned counsel that the commercial premises cannot be got vacated for residential use, it may be observed that the Sindh Rented Premises Ordinance (VII of 1979) does not make any distinction whatsoever between the residential and non-residential premises. The plans have been got approved for the construction of residential premises, which fact by itself is sufficient to hold that the landlord is entitled to raise such construction. In the case o,f Darul Uloom Naieemia Trust v. Munir Ahmed 1984 CLC 3483, Naimuddin, J. (as he then was), has made pertinent observations in this regard which are reproduced below:--- "Taking up the contention that the application was not maintainable as the appellant wanted to convert the residential premises into non residential premises, it may be stated that a distinction was made between a residential and non-residential building in the definition clauses (d) and (g) of section 2 of the Sindh Urban Rent Restriction Ordinance, 1959 or in section 3(a)(i) and section 3(a)(ii) of the said Ordinance but such distinction has been done away with under the Sindh Rented Premises Ordinance, 1979, because in the new Ordinance no provisions similar to those contained in section 2(d), 2(g), or 13(3) (a)(i) and (ii) have been made."
17. ' The last two cases relied upon by the learned Advocate for the tenant are under the repealed Ordinance and not Ordinance VII of 1979 and as such do not advance the case of the learned Advocate for the tenant. The case of Ulfat Hameed relates to proceedings under section 14 of the Sindh Rented Premises Ordinance, 1979 and has no relevance with the dispute in hand. No doubt in the case of Moinuddin, a learned Judge of this Court has observed that non-residential building or shops cannot be directed to be given in the possession of the landlord, for residential purposes and for such view the reliance was placed by him on the case of Girdhari Lal v. Marzia Bano and another PLD 1963 Quetta 25 and Sultana Jahan Begum v. Jamil Ahmed PLD 1974 Kar. 319, which related to the provisions as contained in the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). I am, however, in respectful agreement with the view expressed by Naimuddin, J. In the case of Abdul Hadi alias Abdul Hadi Hassan and 2 others v. Syed Ali Haider and others PLD 1983 SC 342, the eviction of the tenant from the non-residential building for the purpose of construction of residential building was upheld.
18. I, therefore, find no reason to interfere with the finding of the learned Rent Controller on the issue of the bona fide personal requirement of the premises in dispute.
19. ' Although the learned Rent Controller has not given any finding on the ground of requirement of the premises for reconstruction of new abuilding but both the parties were conscious of the aforesaid issue and have led evidence in this respect. The issue, therefore, can be decided by this Court instead of remanding the case for decision thereof. Reference may be made in this regard to the case of Bashiruddin Qureshi v. Major (Retd.) Aminullah Khawaja 1985 CLC 316, wherein my brother Haider Ali Pirzada, J. after referring to the cases of Parmathi Nath Chaudhry and 17 others v.
20. Kamir Mondelek PLD 1964 SC 434, Fateh Ali v. Pir Muhammad and others 1975 SCMR 221 and Nasir Ahmad and others v. Khuda Bukhsh and others 1976 SCMR 338 has observed that the High Court has the power to decide the matter in hand on merits itself, instead of sending it for decision thereof first by the Court below.
21. ' The learned Advocate for the tenant contended that the shop in possession of the tenant is R.C.C. structure and is in sound condition and, therefore, there is no need for reconstruction. The submission is absolutely misconceived. Section 15(1)(vi) of the Sindh Rented Premises Ordinance, 1979 provides that the Controller shall make an order directing the tenant to put the landlord in possession of the premises if it is required by the landlord who has obtained necessary sanction for such reconstruction or erection of a new building at the site from the authority competent, under any law for the time being in force, to give such sanction. The landlord has produced the copy of the sanction letter and so also the approved plan and such being the only requirement of the law, the landlord is entitled to seek the eviction on the said ground, under the circumstances of this case.
22. ' The learned Advocate for the tenant had contended that the Rent Controller had not heard the arguments of the tenant and has wrongly observed in the impugned order that the Advocate for the tenant was also heard. He invited my attention to the diary dated 29-11-1988 when the case was fixed for hearing of arguments. On that day the learned Advocate for the landlord was present, whose arguments were heard and the Advocate for the tenant was absent. However, I do not find any justification to upset the finding of the learned Rent Controller merely because of the fact that incorrect observation has been made in the impugned order.
23. ' By short order dated 11-8-1992, F.R.A. No,7 of 1989 was allowed and F.RA. No,14 of 1989 was dismissed for reasons to be recorded later on and above are the reasons therefor.