1. ' These are three First Rent Appeals under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called the Rent Ordinance) directed against the order dated 31-1-1994 passed by learned I Senior Civil Judge and Rent Controller, Karachi-South whereby three rent cases viz. 1171/90, 1172/90 and 1173/90, Trustees of Haji Sir Abdullah Haroon Wakf No,2 v. Fateh Ali Hashim, were filed by the same landlord against the same tenant in respect of three different tenements on the same ground of reconstruction of the building. In Rent Case No,1171 of 1990 ejectment has been sought in respect of tenements No,1 on Plot No,6, S.B.5, Gulshan-e-Nusrat, Sir Abdullah Haroon Road and Inverarity Road, Karachi, situated on ground floor admeasuring 1512 sq.Ft. As per written statement and 1633-50 sq ft as per actual inspection. In Rent Case No,1172 of 1990 ejectment has been sought in respect of tenements No,1 on Plot No,8, S.B.5, Gulshan-e-Nusrat, Sir Abdullah Haroon Road and Inverarity Road, Karachi, situated on ground floor, admeasuring 3910 sq. Ft. As per written statement while as per inspection 7130-37 sq.Ft. In Rent Case No,1173 of 1990 ejectment has been sought in respect of tenement No,2 on Plot No,8 SB-5, Gulshan-e-Nusrat, Sir Abdullah Haroon Road and Inverarity Road, Karachi situated on ground floor admeasuring 3910 sq. Ft. As per written statement while as per inspection 7130.37 sq.Ft. In Rent Case No,1173/90 ejectment has been sought in respect of Tenement No,2 on Plot No,8, S.B.5, Gulshan-e-Nusrat, Sir Abdullah Haroon Road and Inverarity Road, Karachi situated pn ground floor admeasuring as per written statement 3910 but on inspection admeasuring 5027 sq. Ft. The ejectment has been sought in respect of the above three premises in possession of the appellant/tenant by the respondents/landlords on the ground that the latter required the same for reconstruction of a new building at the site for which the respondents/landlord have obtained necessary sanction for such reconstruction from the competent authority under the law. The appellant tenant filed the written statement in all three ejectment cases stating therein that he has no knowledge that Plots Nos.3, 5, 6, 7, 8 and 10 S.B. 5 stood amalgamated and the said plots were given final No,3, SB-5 and the appellant has denied for want of his knowledge that lay out plan for reconstruction after demolition of present structure has been approved by the competent authority as no prior notice or intimation was given to the appellant/tenant and further that the ejectment applications were not maintainable and were mala fide. On the pleadings of parties following issues were settled in all the three ejectment cases:
(1) Whether the case is incompetent and not maintainable?
(2) Whether the applicants require the case premises for reconstruction after having obtained a legal and valid sanction from the competent authority?
(3) What should the order be?
2. ' The respondent/landlords filed an affidavit of Faqeer Muhammad Khan, their attorney, who has produced photostat copy of his general power-ofattorney, dated 6-10-1982 executed by Trustees of Haji Sir Abdullah Haroon Wakf Nos.1 to 3 in favour of Faqeer Muhammad son of Mansoor Khan, photocopy of last rent receipt, photocopies of plan, front-elevation and sanction. The respondent also summoned Zahid Naeem, Deputy Controller of Building Town Planning Sectfon who has produced amalgamation sanction in respect of Plots Nos.3, 5, 6, 7, 8, and 10, Sheet No,SB-5, Saddar Bazar Quarters, Karachi, with final No,3, SB-5 and Letter No,SB/C-3/60-4988, dated 9-10-1969 and Plan as Exh.A/2 and Exh.A/3 and produced certified true copy of extract from the Property Register, Karachi District as Exh.A/4. The respondents/landlords also summoned Iqbal Aziz, Assistant Controller of Building Zone III, K.B.C.A. And K.M.C. Who has produced' attested copy of sanction plan bearing No,KBCA/DCB-VIII/Proposed/Amended-22/90/40 dated 25-7-1990 as Exh.A/6 and attested copies of DRG No,A-01 and A-02 duly attested as Exh.A/7 and Exh.A/8 respectively. The appellant/tenant examined himself and produced six extracts from the property register of Karachi District as Annexure 0, 0-1 to 0-5 and also, filed affidavit-in-evidence of Imran Ahmed Farooqi who has produced a certificate, dated 20th July, 1922 approach lane sketch No,1 . All the deponents were' cross-examined at length by respective counsel for parties. After recording the above evidence and hearing the learned counsel for parties, the impugned judgments of eviction on the stated ground were passed, hence the present appeals.
3. ' I have heard learned counsel for parties and perused the record and proceedings of the case and the case-law cited by the respective counsel for parties.
4. ' Mr. Ashiq Ali Abdullah, learned counsel for appellant has argued that M/s. Zahid Naeem and Iqbal Aziz were examined by the learned Rent Controller at the request of the respondents/landlords as per application dated 7-9-1991 who were summoned to produce order of amalgamation of Plots Nos.3, 5, 6, 7, 8 and 10, SB-5, Saddar Bazar, Karachi, into final No,3, SB-5 and sanction plan for reconstruction after demolition of Plots Nos.3, 5, 6, 7, 8 and 10, SB-5 (Final No,3), Saddar Bazar, Karachi vide No,KBCA/DCB-VIII/Proposed/ Amended-22/90/40 dated 25-7-1990 but the learned Rent Controller did not permit the appellant/tenant's counsel to cross-examine the said two witnesses, therefore, documents produced by him could not be considered to be as evidence in the eye of law and in absence of the legal, valid sanction of reconstruction the present eviction application would be incompetent. He has further referred to subsection (4) of section 19 of Rent Ordinance whereunder the appellant/tenant has vested right to cross-examine the witness of the respondents/landlords. He has further contended that Article 134 of Qanun-e-Shahadat will not be attracted as subsection (4) of section 19 is a special law which would override the general law. He has further argued that the word, require, would mean that requirements should be bona fide one and not mala fide one but in the instant case the respondent/landlords have failed to show bona fide requirement in respect of reconstruction of the building, therefore, the finding of learned Rent Controller was erroneous. He has also contended that there was a condition in the sanction for reconstruction that the respondents/landlord would leave passage in-between their properties and to that of properties, belonging to another person but the same has not been left therefore sanction was invalid. Lastly, learned counsel has contended that building plan would show that small shops were to be constructed with the result the appellant/tenant who was having big halls of much more area in his occupation would not be restored the possession of equal area or near about as required by section 15(2)(vi) of the Rent Ordinance, therefore, the order of ejectment passed against the appellant/tenant was not legal. He has placed reliance upon The Deputy Registrar, Cooperative Societies v. Mst. Zulekha Bai and 4 others 1990 CLC 1003, Mst. Samina Begum v. Muhammad Ali 1991 MLD 1084. Muhammad Yousaf v. Muhammad Hassan and 7 others 1981 CLC 1181 and Muhammad Rashid v. Haji Abdur Rahim and 2 others 1992 CLC 568 in support of his contentions.
5. ' Learned counsel Mr. Mirza Aftab Alam Kazilbash for respondents has argued that bu,ilding was to be constructed on the pillars and beams therefore the appellant could be accommodated by removing the walls in-between the shops or could be given more than one shop to accommodate him. He has also argued that under Rent Ordinance it was not necessary that the building plan should suit the tenant's requirement. He has further argued that nowhere it has been stated by the respondents/landlords that the passage between properties would not be left. He has also contended that the word 'require' in clause of subsection (2) of section 15 of Rent Ordinance is not followed by expression "in good faith" as in clause (vii) of subsection (2) of section 15. The only requirement under the law is that landlord has to obtain' necessary sanction for such reconstruction of building from the competent authority. He has argued that sanction plan was produced through the attorney Faqeer Muhammad Khan of the respondent/landlords but because of the objection of the appellant/tenant as to the validity of the sanction, official from the competent authority was summoned to produce the sanction plan and the learned Rent Controller called for the said `sanction of reconstruction of building and order of amalgamation of plots from the competent authority, who in turn directed M/s. Zahid Naeem and Muhammad lqbal Aziz to produce the relevant documents only and the said officials were not summoned as witnesses of the respondents and they were not administered any oath and they only produced the said documents as such testified the fact that the sanction was accorded and plan was approved by the competent authority. He has argued that Qanun-e-Shahadat is applicable to the rent proceedings therefore Article 134 of the same would be attracted in the instant case. So far subsection (4) of section 19 of Rent Ordinance, he has argued that as the affidavit is to be on oath, therefore, the right has been given to other party to cross-examine the deponent while in case of M/s. Zahid Naeem and lqbal Aziz no affidavit was filed by them and they were not on oath and they produced only documents therefore there was no question of permitting the learned counsel for appellant/tenant to cross-examine the said officials of the competent authority. He has argued that in fact the documents which were produced by the above two officials, were already produced by the attorney of the respondent, therefore, the same being already on record as evidence were legally considered ,by the Rent Controller.
6. ' The first point for consideration is whether the appellant/tenant had any right to cross-examine M/s. Zahid Naeem and lqbal Aziz in the stated circumstances. An application to summon witness, dated 7-9-1991 at page 97 of R&P of RC No,1172/90 would show that the respondents/landlords prayed for to summon Deputy Controller Building Control Authority, Master Plan Department, K.D.A., Karachi, to produce amalgamation order of Plots Nos.3, 5, 6, 7, 8 and 10 SB-5, Saddar Bazar, Karachi into final Plot No:3, SB-5, Saddar Bazar, Karachi and sanction plan for reconstruction after demolition building on Plots Nos. 3, 5, 6, 7, 8 and 10, SB-5, into final No,3, Saddar Bazar Karachi vide No,KBCA/DCB-VIII/Proposed/Amendment-22-90/40, dated 25-7-1990. The statement of Zahid Naeem is at page 41 and statement of lqbal Aziz is at page 49 of Rent Case No,1171/90 would show that both witnesses only produced the documents stated above. There is a note in the end of the statement of the above witness that no cross-examination is allowed to Mr. Ashiq Ali, learned counsel for opponent as the witnesses is not on oath. Subsection (4) of section 19 of the Rent Ordinance runs: "A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party and such other party shall have the right to cross-examine the witness on such affidavit and if the witness has been cross-examined the party producing the witness may re-examine him."
7. ' Section 20 of the Rent Ordinance runs: "20. Power of Civil Court.--(1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) in respect of only the matters, namely:--
(a) Summoning and enforcing the attendance of any person and examining him on oath.
(b) Compelling production or discovery of documents.
(c) Inspecting the site, and
(d) Issuing commission for examination of witnesses or documents." Article 134 of Qanun-e- Shahadat runs: "134. Cross-examination of person called to produce a document.--A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness."
8. Perusal of the application of the respondent/landlord would show that Deputy Controller of Building Town Planning was summoned through the Controller to produce the said documents who in compliance of the notice appeared before the Controller alongwith lqbal Aziz, Assistant Controller of Building and produced the said documents when the said officials neither filed affidavit nor were administered oath therefore subsection (4) of section 19 would not be attracted as such no right to cross-examine the said officials could be given to learned counsel for appellant. The said officials could not be said to be witness of the respondents/landlords as they were called to produce the said documents as the same were issued by them and came from their custody being the representative of competent authority under the law. Section 20 of Rent Ordinance states that Controller and an appellate authority shall for the purpose of Rent Ordinance have powers of a Civil Court under the C.P.C. In respect of only the matters stated in the said provision but the Rent Ordinance has not placed any bar on the application of Qanun-e-Shahadat in appreciating the evidence adduced by the parties in the rent matters. It is correct that the Rent Controller is not a Court and limited provisions of C.P.C. Have been made applicable in the rent proceedings but there is nothing in the Rent Ordinance whereby the application of the provisions of Qanun-e-Shahadat could be restricted or limited as the Rent Controller is not Court. The application of Evidence Act has been held to be not applicable. Learned Judge in Chamber in Muhammad Yousaf v.
9. Muhammad Hassan and 7 others 1981 CLC 1181 held: "I would, therefore, with respect relying on the opinion delivered in the case of Javaid lqbal (1976 SCMR 229) hold that the Rent Controller was not obliged to strictly comply with the requirements receiving copy of the sale-deed in dispute in evidence."
10. ' Reference is also made to Muhammad Rasheed v. Haji Abdul Rahim and 2 others 1992 CLC 568 wherein at page 570 it was held: "Be that as it may, there cannot be any doubt that a Rent Controller is not a Court and the provisions of the Evidence Act are not applicable to the proceedings before him. Indeed, as held by Supreme Court in Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra etc. PLD 1965 SC 459, the proceedings before the Rent Controller are such as are conducted before an executive officer.
11. In Javaid lqbal v. Rana Muzaffar Khan 1976 SCMR 229 the Supreme Court ruled that Evidence Act was not applicable in terms to rent proceedings. A similar question arose before this Court in Muhammad lqbal v. Haji Taj Din 1979 CLC 554 wherein it was held that the provisions of section 145 of the Evidence Act could not be made the basis for excluding the evidence recorded in rent proceedings."
12. ' In the cited case a photocopy of the sale-deed was allowed to be admitted as evidence on the ground that provision of section 65 of Evidence Act would not be attracted and further that no objections were made at the time when the same was being produced by the appellant. In the instant case, learned Rent Controller did not permit the learned counsel for appellant to cross- examine the above two said officials on the ground that they were not on oath. Even if it is held that the provision of Article 134 of Qanun-e-Shahadat would not be applicable then also the learned counsel for appellant would not be entitled to cross examine the said officials under subsection (4) of section 19 of Rent Ordinance as the both officials have hot filed affidavits and the right to cross- examine the witness has been given only when the witness has filed an affidavit, as the affidavit is always to be on oath, whereas the said officials have neither filed affidavits nor were administered oath but they only produced the said documents therefore the learned Rent Controller rightly disallowed the cross-examination to the learned counsel for the appellant. Besides if it be said that the documents produced by the said officials be not considered as evidence then also the said documents i,e, sanction and approved plan being already on the record would be considered as evidence and the learned Rent Controller would be justified in considering the said documents, as evidence while passing the judgment in the rent case. Nothing has been brought on record to rebut the validity of sanction and approved plan of building issued by the competent authority.
13. Accordingly, the contention of the learned counsel for appellant has no merit and substance.
14. Next contention of the learned counsel for appellant is that the word ' requirement' used in clause
(vi) of subsection (2) of section 15 of Rent Ordinance would mean that requirement should be bona fide one and in absence of the same, the ejectment could not be ordered by the Rent Controller. I am unable to persuade myself with the arguments advanced by the learned counsel for appellant as the only requirement in case of reconstruction of property would be the production of sanction and approved plan of reconstructon of building and the Rent Controller has to be satisfied as to the building plan and the sanction produced to be genuine and validly issued by competent authority. There is no question of proving good faith on the part of the landlord in case the possession of the property is sought on the ground of reconstruction of the building on the site.
15. Reference is made to Muhammad Akbar and another v. Dr. Muhammad Rafique 1980 SCMR 483 wherein Supreme Court of Pakistan at page 484 held: ' The requirement of the law is that there should be sanctioned plan of construction or reconstruction of the property, and it is therefore, immaterial whether the forwarding letter of the Municipal Authority concerned is produced or not, if the Court is satisfied that the plan produced is, indeed, a sanctioned plan as required by law. None of the three Courts, which have dealt with the case, have doubted the genuineness of the sanctioned plan."
16. ' In Mrs. Zareen and others v. Muhammad Nawab and others (1992 MLD 1690) learned Judge in Chamber observed: "Under the existing law mere requirement of premises for the purpose of reconstruction is sufficient to seek eviction of tenants and we should not read the words "reasonable" or "good faith" in clause
(vi) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, which have been omitted deliberately by the Legislature. This provision does not envisage inquiry by the Rent Controller into the genuineness or otherwise of the requirement of the landlord, who has simply to satisfy the Rent Controller that he has obtained necessary sanction for such reconstruction or erection of a building as the case may be, from the authority competent to accord such sanction.
17. The cases reported as Hassan and others v. Fancy Foundation PLD 1975 SC 1, and Ghulam Muhammad and another v. Maqsood Hussain and 3 others 1984 SCMR 1142 are clear on this point."
18. ' In Zaki Ahmad and another v. Haji Sattar 1988 MLD 1610 at page 1612 learned Judge in Chamber held: "The production of sanction plan is the only requirement and this view has again been supported in case of 1987 SCMR 2074 where it has been held that copy of duly sanctioned plan of proposed building only is required to be produced. I am, therefore, of the view that case for reconstruction has been made out."
19. In view of the fact that sanction and approved plan passed by the competent authority have been obtained and there has been no doubt about their genuineness and in view of the above decisions, the question of good faith would bot be relevant for deciding the ejectment application on the ground of reconstruction of building under the above cited provisions of Rent Ordinance, therefore, contention of learned counsel has no merit.
20. ' Next contention of appellant's learned counsel is that appellant could not be restored to possession of same area in the new building to be constructed considering that in building plan, shops of smaller area are to be constructed thereby the provision of subsection (4) of section 15 of Rent Ordinance meant for the protection of would become nugatory. Learned counsel for respondent/landlord stated before me that the appellant/tenant could be accommodated in the said shop or shops of near about area by removing the walls in-between pillars and beams therefore the spirit and object of the provisions of law would not be flouted or contravened and the apprehensions of appellant/tenant are ill-founded. He in the alternative also contended that building cannot be constructed to suit the requirements of the appellant/tenant. Reference is made to Ghulam Nabi v. Mushtaq Ahmad PLO 1980 SC 206 at pages 209 and 210 wherein Supreme Court of Pakistan held: "That condition cannot be imposed upon landlord to rebuild the plan according to the requirement of his tenant and the said proposition as pleaded would lead to absurdity."
21. ' Reference is also made to Agha Haji Hassan v. Shafiqur Rehman 1992 CLC 1945 wherein learned Judge in Chamber held that: "So far the question of quantum of area which would be given to the tenant in reconstructed building was concerned it was a matter within discretion of Rent Controller to be determined after taking into consideration location and type of building and needs of tenant."
22. In view of the statement of learned counsel for the respondent and the case-law it could be safely said that respondents/landlords would so far as possible, accommodate the appellant/tenant in possession of such area in the new building as possible and would not prejudice the appellant/tenant in respect of his rights under the law. Accordingly; the contention of the learned counsel for appellant has no merit.
23. ' Last contention of the learned counsel for appellant is that the respondent/landlord was to construct the building within the period stipulated in the sanction order but that period has expired therefore there was no sanction in law hence the respondents/landlords would not be entitled to eject the appellant.
24. ' I do not find any substance in the said contentions. Reference is made to Raiz Ahmad v, Mian Abdul Jabber and another PLD 1972 Lah. 711 (D,B) wherein it was held that the landlord could obtain extension of sanction 'if expired subsequent to the order of eviction.
25. ' In view of the aforesaid facts and case-law there is no merit in the contentions of the learned counsel for appellant and the impugned orders of ejectment passed on the ground of reconstruction of new building at the site are legal and no exception could be taken to the same.
26. Accordingly, all the three appeals are dismissed with the direction to the appellant/tenant to hand over the vacant possession of the premises within the period of 120 days.