1. This appeal filed under section 15 of the Balochistan Urban Rent Restriction Ordinance VI of 1959 is directed against the Order dated 30-10-1997 passed by the learned Civil Judge-2 Cum-Rent Controller, Quetta whereby the Eviction Application filed by the appellant has been dismissed.
2. 2.The facts in brief are that the appellants filed a single application against the respondents in respect of shop Nos. 2 to 5 situated near Syed Abad Tube-well on 16-5-1996 on the ground of re- construction and personal requirement. The case of the appellants as set up in the Eviction Application is that they want to demolish the said shop and require the same for residential purpose as the premises in their occupation is not sufficient for them. The respondents filed their written statement on 18-6-1996 contesting the Eviction Application on legal and factual grounds.
3. On the basis of the pleadings, the learned Rent Controller framed the following issues:-- (i)Whether the shop in dispute is required by the applicants in order to demolish and include the same in their adjacent house?
4. (ii)Whether the shop in dispute is required by the applicants for their personal bonafide use and occupation?
5. (iii)Whether the application is not maintainable in view of preliminary objections B and D of the written statement?
6. (iv)Whether the applicants are entitled to relief claimed for?
7. (v)Relief?
8. 3.In support of their application the appellant produced A.W.1 Ali Akbar, A.W.2 Ramzan Ali and Shaukat Hussain, representative of Municipal Corporation tendered building permit and approved map as Exh.A/1 and Exh.A/2 and Appellant No,2 Aziz ullah recorded his statement as Attorney for all the appellants.
9. 4.In rebuttal respondents produced R.W.1 Suleman Ali, R.W.2 Baba Ali, R.W.3 Qurban Ali, R.W.4 Sikendar Ali and statement of respondent Mirza Hussain was recorded as Attorney for all the respondents.
10. 5.After assessm ent of the evidence, the learned Rent Controller dismissed the application of the appellant vide Order dated 30-10-1997. Being aggrieved from the same the appellants have filed the instant appeal.
11. 6.I have heard Mr.K.N. Kohli Advocate for the appellants, Mr. Naeem Akhtar Advocate for Respondent No,3 and Mr. H. Shakeel Ahmad, Advocate for Respondents Nos. 1 and 2.
12. 7.Mr.K.N. Kohli, Advocate for the appellants stated that the learned Rent Controller dismissed the Eviction Application on the ground that approved map and building permit were obtained in the name of Khan Muhammad (deceased) who is the predecessor in interest of the appellants. The learned counsel further stated that sanction for reconstruction should not he invalidated if the same was not sanctioned in the name of the landlord and had been obtained in the name of the real owner of the property. The learned counsel in support of his arguments contended that the word 'landlord' has been used in section 13(2)(VI). He further argued that the appellants had proved through evidence that the premises in dispute was required by them for their personal bonafide use and occupation i,e, for demolition and reconstruction but the learned Rent Controller has misread the evidence regarding personal requirement of the appellants.
13. 8.Mr. Naeem Akhtar, learned counsel for Respondent No,3 argued that the landlords had no sanctioned plan in their name as such the requirement of section 13(2)(VI) was not fulfilled. Thus the question of reconstruction was rightly decided against the appellants and further argued that it is mandatory for the landlord to obtain a valid sanctioned plan in his name to file the suit for reconstruction and further argued that as sanctioned plan has been obtained in the name of Khan Muhammad who has died, the tenants have no safe-guard under section 13(5).
14. 9.Mr. H. Shakeel Ahmad, Advocate for the respondents 1 and 2 adopting the arguments of Mr. Naeem Akhtar, Advocate further stated that the personal requirement of the appellant is based on reconstruction and if the ground of reconstruction is repelled, then the question of personal requirement does not arise.
15. 10.I have heard the learned counsel for the parties at length and have also perused the record of the case.
16. 11.The case of the appellants is that they require the shops in possession of the respondents for residential purposes and have stated that after demolition and reconstruction, would add the said shop in their house which is situated at the backside of the shops. The case of the appellants falls under the provisions of section 13(2)(VI) of the Ordinance which reads as below:-- "The building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building or the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated."
17. 12.In the abovementioned clause the word 'landlord' has been used. 'Landlord' has been defined in section 2(c) of the Ordinance which says that landlord means any person entitled to receive rent in respect of any building or rented land whether on his account or on account of actual owner. Mr. K.N.. Kohli, Advocate argued that the appellants being landlords of the premises in dispute applied for sanction of building permit which was sanctioned by the Municipal Corporation in the name of Khan Muhammad predecessor in interest of the appellant. Building permit is usually granted in the name of the owner in whose name the property or the land exists. If the provisions of section 13(2)
(VI) are to be strictly construed then only the landlord in whose name the property exists can apply for sanction map and landlords who are not owners of the property cannot apply. In that case any person who desires to file Eviction Application on the ground of personal requirement and reconstruction has to be the landlord and owner of the premises too. From the perusal of section 13(2)(VI) the main condition for allowing the application on the ground of reconstruction is satisfaction of the Rent Controller. It may be mentioned here that if a landlord is not the owner of the property and obtains sanction for reconstruction in the name of actual owner, the same cannot be said A to be invalidated. Intention of the legislature in enacting the condition in the said section is only that the Rent Controller be satisfied that the building or rented land which is required by the landlord in good faith for reconstruction and in that case the landlord is required to produce the sanction map. In the case in hand admittedly, the appellants applied for sanction from the Municipal Corporation. Approved map was only sanctioned by the Municipal Corporation in the name of Khan Muhammad, because the property still exists in the revenue records in his name.
18. Sanction was granted by the Municipal Corporation to the appellants for reconstruction of the New Building on site i,e, property in dispute. No objection was raised by the Municipal Corporation at the time of granting approved map in favour of the appellants, in as much as the representative of the Municipal Corporation appeared before the Court and tendered building permit and approved map in evidence. No objection was raised at that time. An otherwise after the death of Khan Muhammad, the appellants have been admitted as land-lords of the premises in dispute by the respondents. The plea that they did not have a proper approved map in their favour is devoid of force and approved map could not be invalidated on the said land Reliance is placed on the following cases:
13. (1) Muhammad Ali v. Haji Abdur Rehman, 1980 SCM R 29 wherein it was observed:-- "It needs to be observed that in addition to the considerations which weighed with the learned lower appellate Courts, it cannot be ignored that the definition of landlord contained in section 2(c) of the Ordinance is very wide. An owner who is entitled to receive rent would undoubtedly be a landlord under the said Ordinance but a person mentioned in the definition who is competent to receive rent on behalf or for the benefit of the aforementioned landlord would also be the landlord.
19. There is a peculiar feature of this case. On the petitioner's objection that the owners were not the landlords, their application was earlier dismissed as incompetent. It cannot be said that this approach in the first round of litigation regarding definition of landlord was incorrect. The respondent then filed the eviction application. He was constrained to do so notwithstanding the fact that as already noted, he had only signed the lease deed on behalf of his sons. It needs to be mentioned at this stage that in his deposition as well the respondent had stated that he was recovering the rent from the present petitioner on behalf of his sons. In this background if the respondent relied upon the necessary sanction which was obtained by his sons, the owners of the property in their own name, this would not mean a contravention of the provisions of the Ordinance contained is section 13(2) (VI) read with section 2(c) as analysed above. The apprehension of the petitioner expressed by his learned counsel that in case of default on the part of the respondent in erecting the building, he would not be protected under section 13(5-B) of the Ordinance is unfounded."
20. 14.(2) Mst. Amna Begum and 2 others v. Muhammad Siddique and others 1996 SCM R 1773. In this case the view taken in the 1980 SCM R 29 was re-affirmed and Hon'ble Supreme Court observed:-- "Both the questions with regard to relationship of landlord and tenant and with regard to the sanction in the names of the sons who were the real owners, as is in the present case, stand decided by the precedent case which is applicable on all force to the facts of the present case. We, therefore, hold that Appellants Nos. 2 and 3 who have proved to be the owners of the property through the evidence which the learned High Court erred in rejecting would be safely held to be the landlord of the property. On facts of the case and the sanction plan having been obtained in the names of the real owner and not in the names of appellant 1 is inconsequential."
21. 15.In view of the above discussion it cannot be said that the approved plan in the name of Khan Muhammad was not proper. Thus, the finding on issue of reconstruction is decided in favour of the appellants.
22. 16.Now adverting to the question of personal requirement the appellant produced two witnesses, A.W.1 Ali Akbar and A.W.2 Ramzan Ali who have categorically stated that the appellants alongwith their married sister, her husband and their children are living in three rooms in the premises in their occupation. The said premises is not sufficient for their needs. The statement of Azizullah, Attorney of the appellants is quite confidence inspiring wherein they have explained that they are living in three rooms and the said place is not sufficient for their requirement. He has further stated that even his sister Zara is living with her husband and three children there; as such they want to include the premises in dispute in their occupation after demolition and reconstruction. The witnesses produced by the respondent have also admitted that the appellants alongwith their married sister and her husband and three children are residing in the said premises. However, they have denied the personal requirement of the appellants. From the evidence produced on record it reveals that the appellants have successfully proved that they require the premises in dispute.
23. 17.Reverting to the arguments of the learned counsel for the respondent that since sanction plan was issued in the name of Khan Muhammad, thus the applicants are not protected under section 13(5), it may be mentioned here that this question has been dealt with by the Hon'ble Supreme Court in Muhammad Ali's case (supra) also and it has been held that if sanction plan is not in the name of the actual landlords, still they are protected under the provisions of section 13(5). Thus, the contention of the learned counsel for the respondent is devoid of force.
18. As a result of the above discussion, the order dated 30-10-1997 passed by Civil Judge-cum-Rem Controller, Quetta is set aside and the Eviction Application filed by respondents is allowed.
24. Respondents are allowed four months' time to hand over the vacant possession of the premises in dispute. However, parties are left to bear their own costs.