MUNAWAR AHMAD MIRZA, J.---There is a brief background giving rise to filing of present petition.
Pervaiz Shah and Lal Badshah sons of Haji Marshah are owners of hotel premises known and styled as ' Pervaiz Hotel' which consisted of a hall, four shops and ten rooms situated at New Bus Stand, Mardan (hereinafter referred to as 'demised property'). The said hotel premises was leased out to petitioner at a monthly rent of Rs.6,000.
2. In April, 1993, respondents/landlords filed a petition under section 13, Rent Restriction Ordinance, 1959 before Civil Judge/Rent Controller, Mardan seeking ejectment of petitioner from 'demised property' on the ground of non--payment of four months' rent from December, 1992 till March, 1993, reconstruction of the building on account of its dilapidated condition and personal bona fide requirement. Petitioner resisted the proceedings and repudiated all the allegations through a detailed reply filed on 16th May, 1993. Assertions regarding personal bona fide requirement and deterioration of building condition were specifically refuted. It was pleaded that a sum of Rs.1,80,000 was received by respondents/landlords by way of 'Pagri'/advance money, therefore, eviction proceedings instituted against petitioner were not maintainable. Factum of default was also clearly disputed.
3. Considering the pleadings, learned Rent Controller framed thirteen issues and gave parties opportunity of leading evidence. On the appraisement of evidence thus brought on record, learned Controller, Martian rejected eviction application filed by respondents vide judgment dated 29th May, 1994. Respondents feeling aggrieved from the above decision preferred an appeal before learned Additional District Judge, Mardan who partly accepted the same by means of order/judgment, dated 2nd November, 1994 and remanded the case for re-casting issues concerning personal need and reconstruction; and to decide the controversy afresh in accordance with law. The Rent Controller, however, complied with the order of appellate forum and re-framed issues. Further, evidence led by the parties was also recorded. Eventually, on considering material on record, learned Controller accepted the petition and directed ejectment of petitioner from 'demised property' by means of judgment, dated 7th May, 1996. This the, petitioner was aggrieved from the eviction order, therefore, he challenged it before learned District Judge, Mardan. The appeal was ultimately dismissed on 14th September, 1996. The conclusions regarding petitioner's failure to prove payment of 'Pagri'; requirement of respondents concerning reconstruction of 'demised property' and its bona fide personal use were upheld.
4. The petitioner thereafter assailed above-referred orders/judgments passed by Rent Controller and Appellate Authority, Mardan through Writ Petition No. 1024 of 1996 before Peshawar High Court which was, however, dismissed in limine by Division Bench of said Court on 12th November, 1996. In such circumstances, petitioner has approached this Court by way of petition for challenging validity of abovementioned three orders/judgments of subordinate forums directing his ejectment from 'demised property'.
5. Learned counsel for the parties addressed arguments. Mr. Tasleem Hussain, Advocate Supreme Court, for petitioner vigorously argued that amount of Rs.1, 80,000 by way of ' Pagri' was received by the respondents, therefore, eviction proceedings on the ground of default and personal requirement was not maintainable. He stressed that reconstruction of building and personal requirement were mutually destructive, therefore, Courts below have acted illegally in ignoring this aspect. It was strenuously canvassed that respondents had not effectively established good faith and personal bona fide requirement for obtaining 'demise property', therefore, Courts below have completely misread the evidence. The petition was opposed on the ground that forums of competent jurisdiction have adequately considered all aspects, therefore, present proceedings were not maintainable.
6. Now examining the plea relating to payment of ' Pagri' , it may be seen that same admittedly does not form terms or condition of tenancy. There is hardly any doubt that concept of ' Pagri' is contrary to public policy, therefore, on the settled principles, any supra-contractual arrangement which negates tenancy, would not affect maintainability of eviction proceedings. The observations of this Court in case Sheikh Muhammad Yousaf v. District Judge, Rawalpindi and 2 others (1987 SCMR 307) are sufficiently instructive on this aspect, therefore, operative part is reproduced below:-- "We have carefully considered these arguments of the learned counsel for the petitioner-tenant.
The Courts below had held that the respondent-landlord was successful in establishing a bona fide personal need of the said shop and, therefore, while exercising Constitutional jurisdiction the learned Single Judge of the Lahore High Court, Rawalpindi Bench was justified in observing that since that issue had been correctly and properly resolved it being a question of fact was not reviewable in the exercise of Constitutional jurisdiction. According to the lease agreement the shop had been let out to the tenant-petitioner for a fixed period of ten years with a right of re-entry reserved by the respondent-landlord, but it is not mentioned in the lease deed that the respondent-landlord had received Rs.11,000 as Pugree from the petitioner-tenant, although it is so stated by him in its statement before the Rent Controller. However, that being mutual arrangement between the parties, would not debar the respondent-landlord from instituting eviction proceedings on the ground of bona fide personal need."
Similar principle has been discussed in Messrs M. Qasim v. Sharbat Khan 1992 MLD 1225, M.K.
Muhammad and another v. Muhammad Abu Bakar (1993 SCMR 200) and Saeed Muhammad v.
Mehrullah and another (PLD 1996 Quetta. 48). Additionally, Rent Controller and Appellate Authority, Mardan have clearly disbelieved the plea pertaining to payment of ' Pagri' by the petitioner.Therefore, Constitutional jurisdiction for challenging said decision could not be legitimately invoked. Impugned order/judgment on this score does not suffer from any defect or legal infirmity.
7. Adverting to next point, it may be seen that landlord undisputedly has right to enjoy his own property by making improvement or changes if otherwise entitled to seek its possession from the tenant. There cannot be any clog to the rights of landlord for reconstructing the old building for his bona fide requirement. Therefore, objection raised by learned counsel that grounds for reconstruction of the existing building and its bona fide personal use are inconsistent or mutually destructive to each other, is completely without substance. This view finds support from the observations of this Court in various judgments some of which are mentioned here: --
(i) Abdul Bari v. Khadim HussainPLD 1978 SC 78.
(ii) M/s. Ismail Brothers v. Kewalram - 1980 SCMR 776.
(i.e) Sh. Abdul Aziz v. Kh. Hassan Joo - 1981 SCMR 924.
(iv) Dawood v. Muhammad Yasin - PLD 1982 SC 227.
(v) Muhammad Shafique v. S.M. Khurram - 1983 SCMR 1227.
(vi) Didar Shah v. Ch. Ghulam Haider - 1985 SCMR 504.
8. Now looking to other aspects, it may be seen that sufficient evidence has been led by the respondents to substantiate reasonableness and bona fide intention for construction of new building. Besides, necessary sanction from Municipal 'Committee, Mardan for said purpose was duly obtained proved through evidence. Learned counsel could hardly specify any cogent basis which may dissuade us from believing the stand of respondents. An attempt has. However, been made by the petitioner to suggest that existing building was in good shape and not dilapidated, because sufficient improvement has been made by him. Needless to say that the bona fides of landlord for establishing claim under section 13(2)(vi), Urban Rent Restriction Ordinance, 1959 are primarily linked with genuine intention of constructing new building and not the type of existing condition or position of the old premises. Additionally, section 13(5), Urban Rent Restriction Ordinance, 1959 affords sufficient safe-guards against mala fides of landlord if the building is not constructed within the period specified by law.
9. Lastly, scrutinizing the record, we feel satisfied that landlord has led convincing evidence for establishing their good faith and genuineness to bring the newly constructed building under their own use. Learned counsel for petitioner was unable to point out any misreading of record or perversity in the appraisal of evidence. Judgments of Controller and Appellate Court are based on sound and cogent reasons. It is now well-settled that unless glaring misreading of evidence, material irregularity, lack of jurisdiction, patent illegality or perversity exists, the concurrent findings cannot be disturbed. Peshawar High Court was, therefore, justified in dismissing the writ petition.
10. For the foregoing discussions, we do not find any merit in the petition. Consequently, leave is refused.