A tenant has, by this second appeal filed under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, called in question the appellate order dated 2-4-75 whereby an order of eviction dated 4-3-74 passed by a learned Rent Controller on ground of requirement of the respondent (landlord) for reconstruction of the shop in dispute, was upheld.
2. Various grounds of ejectment were taken by the respondent in the application including default in payment of rent, requirement for self and children and requirement for reconstruction. The appellant, relying on section 14 of the Ordinance, challenged the maintainability of the application of the respondent as he had earlier unsuccessfully moved the learned Rent Controller for the appellant's ejectment and had failed even in appeal. Plea of denial was raised with regard to default, personal need and reconstruction. On the pleadings of the parties, following issues were framed:-- "(1) Whether the application is barred by res judicata? O. P. R.
(2) Whether the respondent has failed to pay the rent and how much arrears are due from him ? O.
P. P.
(3) What is the rate of rent? O. P. P.
(4) Whether the petitioner requires the shop for personal use in good faith? O. P. P.
(5) Whether the petitioner requires the shop in good faith for reconstruc--tion ? O. P. P.
(6) Relief."
3. It is noted in the appellate order that "before evidence was recorded, the Issues Nos. 1 to 4 were given up on 25-2-74 with their mutual consent by the learned counsel for the parties. Therefore, the only issue which was decided by the learned Rent Controller in favour of respondent was Issue No.
5. It was held under this issue that the respondent required the shop reasonably and in good faith for his reconstruction".
4. Learned counsel for the appellant doubted the correctness of the afore noted fact that contest by the appellant and his counsel was given up on Issues Nos. 1 to 4. There is no cogent material either to disbelieve the learned first appellate Court or the learned Rent Controller who, in the order dated 4-3-74 in para. 3 thereof, noted that "the learned counsel for the parties made their joint statement on 25-2-74 whereby they gave up their objections covered by Issues Nos. 1 to 4. Hence the following issues only remain to be determined: "(1) Whether petitioner requires the disputed shop in good faith for reconstruction ?
(2) Relief."
It was in pursuance of the above noted position taken by the parties that the learned Rent Controller then dealt with the issue relating to reconstruction and for the same reason the learned first appellate Court also dealt with the issue of reconstruction only. No attempt was made at any stage on behalf of the appellant to controvert the above position. It is, therefore, not possible to accept the bare statement of the learned counsel for the appellant throwing vague doubt now in second appeal, on the above noted factual position.
5. In one of the earlier rounds of litigation, no doubt the respondent had taken the ground of bona fide requirement for personal use. He, it appears from evidence, is a wholesale dealer in cloth. His business premises are adjacent to, rather merge in, the shop in dispute. There appears to be a common approach and the partition between the two units does not seem to be permanent. The respondent's earlier application having been dismissed, his first appeal was also dismissed by the learned first appellate Court on 6-1-73. Thereafter, the question of eviction on sole ground of personal requirement could not be reagitated because of the bar under section 14 of the Ordinance unless, of course, there was change of circumstances. It may be noted here that the present appellant himself had challenged (in the High Court in pending S. A O. No. 39/73) the appellate order in the earlier round with regard to certain directions relating to rent. It is agreed that the pendency of that appeal in the High Court with regard to the rent has no effect on the present proceedings.
6. Learned counsel for the appellant had contended that even it the respondent gave up the ground of eviction for personal .Need and stressed only the one relating to reconstruction, it was the duty of the learned Rent Controller to dismiss the application because, in pith and substance, the ground remained the same requirement for personal use. In this behalf, be heavily relied upon the statement made by the respondent as his own witness ,wherein it was deposed that he needed the shop for his own use as the existing shop with him was not enough for his wholesale business which bad already expanded to unmanageable proportions. He, of course, mentioned the need of his sons also in this behalf. After laying down the above factual basis, the learned counsel then relying on Abdulah Balach v. Adam Ali PLD 1961 SC 28 and Sheikh Mohammad Yusuf v. Mst. Zohran Bibi PLD 1973 Pesh. 186 contended that the real ground in this case, as analysed by the learned counsel, being that of requirement for personal use was contradictory to the ostensible ground of requirement for reconstruction and that they are mutually destructive therefore this is a case of no ground for eviction and the application of the respondent should have been dismissed. With regard to the inspection note recorded by the learned Rent Controller wherein many factors supporting the plea of reconstruction have been recorded, learned counsel contended that the appellant was not afforded opportunity by the learned Rent Controller to raise any objection in respect thereof, therefore, it cannot be relied upon.
7. One of the main questions involved in this case is whether, looking at the issue of reconstruction, it can be objectively held that the alleged requirement of the respondent for reconstruction is not reasonable and in good faith. It is in context that the further question as to whether, after reconstruction, the respondent (landlord) can bring the shop in dispute under his personal use, arises for consideration.
8. Before dealing with this question on merits, it is necessary to deal with the argument of the learned counsel with regard to the validity of inspection note. He frankly conceded that the appellant was represented by a counsel and he had full opportunity of voluntering any objection that he wanted to make with regard to the inspection of the spot or note made in that connection, It is also conceded that no such objection was ever raised by the appellant. I do not agree with the learned counsel that it was necessary in law for the learned Rent Controller to have fixed a time for asking the appellant to prefer objections to the inspection note. If the appellant wanted to prefer any objection there was nothing to prevent him. Moreover, the facts in this behalf noted by the learned Rent Controller do not support the learned counsel for the appellant that he ever wanted to raise any objection. I, therefore, overrule the technical argument raised by the learned counsel in this behalf.
9. Learned Rent Controller, while dealing with the question of reasonableness and bona fides of reconstruction, observed as follows: "(6) To prove his bona fides and reasonable requirement of the shop for reconstruction, petitioner produced oral as well as documentary evidence. The oral evidence of the petitioner clearly goes to show that there is an adjacent shop of the petitioner in which he carried on his wholesale cloth business and that the disputed shop joined the said shop by a common wall having a common door in it. Petitioner stated as P. W. 5 that he is an Income-tax payer and as such had a good business and sound financial position. His such assertions are not positively denied by the respondent. At the same time I myself found such a situation and status of the petitioner at the time of my spot inspection. My brief note to that effect is contained in my in--spection note recorded on that date.
(7) So far as documentary evidence of the petitioner is concerned that too is very important and goes to prove version of the petitioner. Mr. Abdul Razzaq Building Inspector appeared as P. W. 3 and stated that building plan Exh. P. 1 had since been sanctioned by the Municipal Committee on 8-5-
73. The document itself contains orders of sanction by the Administrator Municipal Committee. Mr. Abdul Waheed retired Draftsman appeared as P. W.
4. He stated that he had prepared the site plan Exh. P. 2 at the instance of the petitioner, which contained existing position as well as proposed construction of the disputed shop. Over and above these two documents, the petitioner himself has explained his requirements for the proposed reconstruction and necessity of demolishing the disputed shop. Respondent has not been able to cast any doubt to the evidence provided by the said witnesses and the documents discussed above.
(8) Respondent produced two witnesses apart from himself. Such evidence goes to show that the disputed shop was in satisfactory condi--tion and does not require demolition, reconstruction or re-erection. All the witnesses of the respondent denied the fact that any common wall or common door existed in between the disputed shop and the shop pre--sently occupied by the petitioner. In view of such facts alleged by the respondent and his witnesses, petitioner applied for inspection of the spot by this Tribunal. It was not resisted by the respondent. Hence I visited the spot in presence of the parties and the respondent's counsel on 29-1-74. After my inspection I recorded a detailed note which was read over and explained to the parties. However, no one filed any objection to my observations and impressions noted down therein.
(9) My inspection note clearly goes to show that the disputed shop is an old one and is in a dilapidated condition which appeared to have remained discarded. It had a common wall with the shop presently occupied by the petitioner with a common door in it. This fact falsified the version taken by the respondent during the inquiry. The shop was once held by some evacuee owner and after partitioning of this Sub-Continent was divided into two parts. The partition wall is made of wood and is temporary. The disputed shop is very small portion in which the respondent runs a very ordinary business of watch repairs. Reasonabless of the proposed reconstruction and requirement of the petitioner in that behalf was also taken into account. The prevailing conditions clearly showed that the petitioner had a vast business and he in fact felt inconvenience and hardship in dealing his business with the customers. Apart from my such observations, the petitioner also produced an order passed by the Income-tax Officer Multan under section 26-A of the income-tax Act. It shows that the petitioner is a sound businessman and is an income-tax payer. His financial position to afford for the investment of the proposed re--construction cannot be doubted."
It is obvious from the analysis of the evidence and findings by the learned Rent Controller in that behalf, which I approve, as also his inspection note, that on the Site there exist certain objective realities on account of which the shop needs reconstruction. It is an old shop and "is in a dilapidated condition".
It is also clear from the observation of the learned Rent Controller that this old dilapidated shop was not attended to by the landlord and that it has a common wall and a common door with the shop occupied by the landlord himself. In reality, it was originally one shop and was divided into two parts after partition. The dividing wall is made of wood and is temporary. The shop in dispute is very small and the appellant does the business of watch repairs therein. After the site inspection and consideration of the evidence, learned Rent Controller accepted the claim of the respondent that the proposed reconstruction was not only reasonable but was also in good faith. The learned first appellate Court has concurred in this finding. There is no JA reason for me to differ or in any way interfere, with the said concurrent findings. I, therefore, hold that the respondent requires the shop in dispute reasonably and In good faith for reconstruction.
10. The next question arises as to what is the effect of the statement of the respondent in his deposition that he also requires the shop in good faith for his personal use. The learned first appellate Court did notice the two rulings cited by the learned counsel for the appellant in support of the proposition that the two grounds of different requirements are mutually destructive, but came to the conclusion that the said rulings are not attracted to the facts of the present case.
11. It needs to be carefully examined as to whether their Lordships of the Supreme Court in the case of Abdullah Baloch did give a ruling that the grounds of requirement for personal use and requirement for reconstruction were mutually destructive. In the precedent case the tenant had sought certificate under section 10 of the Karachi Rent Restriction Act of 1953 on the grounds: "(i) That the applicant has no proper place for his own business.
(ii') That access to his residental quarter becomes impossible without coming into the applicant's office.
(iii) That the setting of the premises cannot be altered to the advantage and benefit of the applicant."
The findings of the learned Rent Controller negatived each of the personal requirements alleged by the landlord, but on the question of reasonable requirement in good faith for reconstruction the findings were in favour of the landlord. Their Lordships analysed the material and came to the con- -clusion that the former finding by the Rent Controller must necessarily react upon the allegation of reasonable and bona fide requirement for reconstruc--tion and in this behalf observed that requirement for sake of reconstruction is not a valid requirement to enable a landlord to obtain ejectment of a tenant under the Karachi Rent Restriction Act, 1953. On the facts of the case, it was found possible to doubt the landlord's good faith, "for, as has been seen, he admitted that he intended the new accommodation on the upper floor for the use of a brother who was still in Africa and was still to return to Pakistan. That floor, and presumably the access to that floor have actually been constructed without the necessity of having the plaintiff's shop vacated". It was also observed that the omission by the Rent Controller to use the words "reasonably and in good faith" in so far as his finding on the question of reconstruction was concerned, was not without reason and that "the absence of these words from the order of the Rent Controller does not merely have the effect of rendering the order defective in the light of the specific requirement of section 10(2)(c)(id) of the Act, but it is also founded upon absence of material to justify the belief that the requirement was based on good reason and was made in good faith". The discussion in the judg--ment of their Lordships shows that the landlord's claim on the basis of reconstruction was not rejected on the ground that the plea of personal use was destructive of the plea of reconstruction. Had it been so.
Their Lord--ships would not have analysed the material themselves and might have decided the case pp that basis, I therefore, with respect, am of the view that the Supreme Court did not rule in the case of Abdullah Baloch that both the grounds of requirement for reconstruction and for personal use are destructive of each other. This supposition gets support from another ruling Messrs. Amir Din Allah Ditta v. Seth Adamji Abdullah and others 1969 SCMR 131. Their Lordships, while dismissing a petition for special leave to appeal, observed as follows:- "The finding reached by all the Courts below that the respondent genuinely wants to reconstruct the building for his own use and for which his plan has also been sanctioned by the Municipal Corporation, is one of fact well bared on evidence and does not warrant interference by us. The argument that the respondent's requirement of the new building was neither reasonable nor bona fide was not relevant to the disposal of the ejectment petition filed under section 13(2)(vi) of the Ordinance aforesaid.
The penal provisions contained in subsection (5) of section 13 of the Ordinance afford an adequate safeguard against a landlord acting in bad faith."
Earlier, while noting the facts, their Lordships had mentioned that the landlord wanted to demolish the old building with the intention to construct a new one for the installation of a printing press. The observations of their Lordships, though brief, amply show that the reconstruction of a building for the use of the landlord himself is a permissible ground for ejectment under section 13(2)(vi) of the Ordinance. Had the personal use and reconstruction been treated as mutually destructive, the results would have been different. It i; true that in the Peshawar case of Sheikh Mohammad Yousaf, on the facts and in the circumstances involved therein, it was observed that "these two pleas (personal requirement and reconstruction) were evidently destructive of each other"; but at the same time it was noticed that in the said case the landlady could not "conceivably need the shop - for her own use when on her own showing, these were in dilapidated condition and need reconstruction". On facts also, the finding was against the landlady. The quotation from the case of Abdullah Baloch already analysed in this judgment, it is pointed out, has to be read in the context of the facts and findings in the Peshawar case. Beyond that, if at all it was assumed that their Lordships of the Supreme Court in any case held as a general proposition that the plea of personal requirement was destructive of the plea of reconstruction, with profoundest respect, I dissent from this view. Their Lordships did not hold so. And the law as contained in section 13 of the Ordinance is not susceptible to such an interpretation. In the light of the above discussion, the contention of the learned counsel that the two pleas are mutually destructive, is repelled.
12. 1 have already held that the findings of fact by the learned Courts below that the premises are required by the respondent (landlord) reasonably and in good faith for reconstruction, are unexceptionable and if the element of requirement for personal use has been taken note of this does not amount to an illegality. In any case, as observed by their Lordships of the Supreme Court in the case of Messrs. Amir Din Allah Ditta, it is not relevant to the disposal of the ejectment petition filed under section 13(2)(vi) of the Ordinance and that "the penal provisions contained in subsection (5) of section 13 of the Ordinance afford an adequate safeguard against a landlord acting in bad faith", Moreover, in so far as purely technical objection is concerned, the said ground of personal requirement was given up by the ;landlord as the basis of ejectment. It is only the ground of reconstruction which was pressed and it is only in that connection that the question of personal use bad 'also been noticed by the learned Courts below. The Impugned orders are unexceptionable. There is no force in this appeal and the same is dismissed. There shall be no order as to costs.