An application of respondent No. 1 for ejectment of the appellants front the shop under their tenancy, situated at Shaheed Road, Jhang Saddar, was allowed by the learned Rent Controller on the ground that it was required for re-construction with a view to extend a contiguous building in the tenancy of Habib Bank Limited. An appeal of the appellants against that order was dismissed by Mr. Muhammad Ismail Loona, District Judge, Jhang, on the 5th April, 1971.
2. The landlords' case in his application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and in his evidence is that he required the shop for demolition and re- construction to serve as am extension of Habib Bank Ltd. I agree with the argument of the learned counsel that the re-construction for this purpose cannot be allowed under subsection (2) (vi) of section 13. One of the conditions for requirement for reconstruction is that it should be required reasonably and in good faith. This provision is to be read in the light of the rights conferred by sub- -section (5-B) of section 13. That subsection provides that where, in pursuance of an order under clause (vf) of subsection (2), a landlord has obtained possession of a building and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation. And the Controller shall make an order accordingly. Under subsection (5-B) it is mandatory for the Rent Controller to pass an order of delivery of possession of the area according to the formula laid down there if within the time fixed the tenant who was previously in posses--sion and had been ejected for re-construction purposes applies for permission to occupy the re-constructed building. It is an impossibility to comply with this subsection in the present case since before seeking permission for re--construction from the Municipal Committee and making an application for ejectment of the tenants the landlord had already entered into some agreement with the Habib Bank and agreed to give possession of the property in dispute to it. It is clear from the evidence of P. W. 2 that the Habib Bank was after depriving the tenants of their possession of the shop.
3. The application as constituted appears to be a combination of twol grounds. One is a ground of re-construction and another is the ground for personal requirement for the use of Habib Bank Limited. A tenant cannot, however, be ejected under subsection (3) (i!) of section 13 on such a ground since the ground of personal use is relevant when the property is required for use either of the landlord or any of his male children. The application of the respondent landlord for ejectment of the appellants was not competent and was liable to be dismissed for the above reasons.
4. Sh. Muhammad Saeed, respondent No. 1, who argued the case in person, urged that the finding of the learned District Judge and of the learned Rent Controller is a concurrent finding of fact in regard to bona fide require--ment and cannot be interfered with ill second appeal.
5. I agree that whenever there is a finding of fact about bona fide requirement it cannot be set aside or interfered with by the High Court in a B second appeal. But the question whether, as in the circumstances of the[ present case, on the facts alleged and proved, an application for ejectment on ground of re-construction makes out a bona fide requirement, is primarily a question of law.
Even if it is assumed to be a finding of fact, it cannot bind this Court since it has been arrived at without taking into consideration the provisions of subsection (5-B) of section 13 and subsection
(3) (ii) of section 13 of the Ordinance.
6. Sh. Muhammad Saeed argued that subsection (5-B) can be invoked after the re-construction has been effected and as such a reference to that subsection is not relevant at this stage. I do not agree with this proposition. If according to the record it is proved that the object of the application for ejectment is to totally oust the tenants from the property, reference to sub--section (5-B) becomes relevant for the purpose of interpreting the provisions ,of subsection (2) (vi) of section 13 which, as stated above, provides that ejectment can be only for bona fide re-construction. A re- construction the .Object of which is to over-ride the provisions of subsection (5-B) cannot be ~ deemed to be bona fide.
7. Mr. Muhammad Saeed lastly stated that he would accommodate the appellants in some other property belonging to him which is reasonably good -or they can be accommodated on the first floor of the same building. But this statement cannot change the legal position. It would not legally justify the ejectment of the appellant through the Rent Controller.
8. I, therefore, allow this appeal with costs throughout, set aside the orders of the learned District Judge and the Rent Controller and dismiss the application for eje.-tment filed by the landlord under section 13 of the Ordinance. '