1. ' The brief facts out of which the present second appeal arises are that respondent filed ejectment petition against the appellant with regard to the shop situated in Mahmood Shopping Centre, Jamia Mosque Road, Khanewal against the appellant on 21-7-1996 on the ground of reconstruction and personal use. The appellant/defendant filed reply of the application and controverted the contents of the application. Our of the pleadings of the parties the following issues were framed by the learned Rent Controller:--- ISSUES
(1) Whether the shop in dispute is bona fidely required to the petitioner for personal use and its reconstruction? OPA
(2) Whether this petition is false and instituted just to get rupees four lacs, as 'paggri' from the respondents? OPR
(3) Relief.
2. ' The learned Rent Controller vide his judgment, dated 23-4-1997 dismissed the application. The respondent being aggrieved by the judgment of the learned Rent controller, filed an appeal before the learned District Judge, Khanewal which was entrusted to the learned Additional District Judge, Khanewal, who vide his judgment and decree, dated 14-7-1997 accepted the appeal and reversed the findings on Issue No,1; hence the present second appeal.
2. The learned counsel for the appellant contended that at the time of filing ejectment petition, the respondent/plaintiff did not get site plan sanctioned by the Municipal Committee Khanewal, therefore, ejectment petition was filed at pre-mature stage. He further contended that this fact is duly borne out from the statement of A.W.I, who stated that he submitted site plan for sanction on 28-7-1996, whereas the ejectment petition was filed on 21-7-1996. He further contended that learned Additional District Judge, did not advert to the reasoning of the learned Rent Controller. He further contended that the learned Additional District Judge, did not pass speaking order/judgment and the same is based on surmises and conjuncture. He further contended that the application was filed mala fide and this fact is duly borne out from the statement of A.W.3.
3. Which is to the following effect:- {{URDU TEXT}}
3. The learned counsel for the respondent contended that it is not condition precedent to file site plan duly sanctioned by the Municipal Committee at the time of filing of application. He relied upon (1980 CLC 915) and (1995 CLC 1269). He further contended that respondent has submitted application for sanction of site plan on 20-7-1996 and deposited the requisite fee. The Municipal Committee did not give reply regarding the sanction of the site plan which is deemed to be sanctioned after expiry of sixty days and relied upon (1993 CLC 143).
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself with the assistance of the learned counsel of the respective parties.
4. The relevant provisions of the Rent Restriction Ordinance are as follows:-- ' Section 13(2)---A landlord who seeks to evict his tenant shall apply to the Controller for a direction in the behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied:--
(vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site, and 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:-- the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application, ' Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate."
5. Section 13(5)---Where a landlord has obtained possession of a building in pursuance of an order under clause (vi) of subsection (2) of this section and does not have the building demolished within a period of four months from the date of taking possession of the same or does not construct the new building within a further period of two years after the expiry of the period of four months from the date of taking possession of the same he shall, unless he satisfied the Court that he was unable to construct the building within the prescribed time for reasons beyond his control, be punished with imprisonment for a term which may extend to six months or with fine or with both.
6. (Section 51-A)---Where a landlord has been convicted under the provisions of subsection (5), the tenant, who has been evicted from the building or rented land in respect of which the landlord is convicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land, and except in the case of a building which has been demolished, the Controller shall make an .
7. (Section 5-B)---Where, in pursuance of an order under clause (v) of subsection (2), a landlord has obtained possession of a building (in this subsection referred to as the old 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 Controller shall make an in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality . "
8. ' It is admitted fact that the respondent did not obtain necessary sanction of site plan for reconstruction or erection of the building from the Municipal Committee, Khanewal before filing the ejectment petition in the Court of Rent Controller but the respondent/plaintiff during his strtement produced the requisite site plan. The learned counsel for the appellant has raised objection that the ejectment petition was pre-mature, therefore, does not fall under the provisions of 13(2)(vi) on the well-known principle that it is a condition precedent to obtain sanctioned site plan for construction first from the respective Municipal Committee before filing the ejectment petition. This proposition of law was considered by the Hon'ble Division Bench of this Court in Hassan's case (1983 CLC 2446) and laid down a principle:-- ' "Where in it has been ruled that even if at the time of filing of ejectment petition, there was no sanction building plan but by the time an order of ejectment of the tenant is passed building plan stood sanctioned, irregularity, if any, stood removed and not available at time of decision of ejectment application by Rent Controller."
9. ' Similar view has been taken by the Hon'ble Karachi High Court in M/s. Pak Army Furnishing Stares's case (PLD 1985 Karachi 20). The relevant observation is as follows:-- "Ejectment application cannot be rejected on ground that sanction was not produced at time of filing such application or its validity expired or suspended before or after filing ejectment, application or during its pendency."
10. ' The same view was followed by the Hon'ble Karachi High Court in Hyudari Industries Ltd's case (1982 CLC 1179) in the following terms:-- ' "Proceeding before Rent Controller could not be defeated on account of absence of sanction of building plan which may be obtained only before order of eviction."
11. ' My learned brother Malik Muhammad Qayyum, J., also considered this proposition of law in Taj Muhammad's case (1995 CLC 1269) and observed as follows:-- ' "There was no sanctioned building plan but by the time an order of ejectment of the tenant is passed building plan stood sanctioned, the requirements of section 13(2)(vi) of the Punjab Urban Rent Restriction Ordinance stand satisfied."
12. ' This Court also considered this proposition of law from the facts that the landlord submitted a building plan for reconstruction to the, Municipal Committee for its sanction but Municipal Committee failed to pass any order on the application for permission within fixed period of 60 days and after the elapse of 60 days, the site plan shall be deemed to be a sanctioned plan as is held in Muhammad Idrees Shah's case (1993 CLC 143) the relevant observation thereof is as follows:-- ' "In case, the local council did not dispose of an application for sanction for a period of sixty days from the date of its registration without any order having been passed on it meanwhile, the sanction shall be deemed to have been granted to the extent to which it did not contravene the provisions of the Building Bye-Laws or sanctioned site development scheme, if any. So, either the Building Plan must have been actually sanctioned by the local council or alternatively it should be deemed to have been sanctioned under section 77(4) of the Ordinance to meet the requirements of law in section 13(2)(vi) of the Ordinance."
13. This view supported by several decisions of this Court and Hon'ble Supreme Court of Pakistan. In view of these circumstances it is settled law that . Rent Controller has to satisfy himself at the time of final decision of ejectment petition that the landlord has produced sanctioned site plan for the purpose of reconstructing the whole building irrespective of the fact whether it was produced at the time of filing ejectment petition or at the time of appearing in witness box, the requirement of section 13(2)(vi) are fulfilled in all respects. In view of what has been discussed above, the contention of the learned counsel of the appellant has no force. I am fortified by the following judgments:-- ' Haji Muhammad Ayub v. Syed Buzaraf Shah and 3 others" (PLD 1983 Pesh. 67); ' Dr. Muhammad Rafique Qamar Din v. Mst. Fateh Begum (1980 SCMR 608); and (1995 CLC 1269)."
14. ' The second contention of the learned counsel of the appellant is that the respondent/plaintiff has filed ejectment petition with specific malice to eject the appellant which is evident from his statement that he has no objection if the tenants come in the vacated shops on new terms and conditions but he will not give the shop to the appellant/defendant at any cost, therefore, the building is not reasonably and in good faith required by the landlord/respondent for the reconstruction. This proposition of law has already been settled by the Honourable Supreme Court of Pakistan in Ghulam Muhammad's case (1984 SCMR 1142) wherein it has been held in the following terms:- ' "Learned Judge further feel in error in not noticing the clear position under the law that under the amended provisions of clause (vi) of subsection (2) of section 13 of the Ordinance appellants, as landlords, having obtained the necessary sanction for the erection of a new building and demonstrated through evidence on record their intention to demolish the rented premises for construction of a new building on the same site, were under no further obligation, as was the position under the unamended provisions of clause (vi) to prove further the premises were reasonably and in good faith required by them for the said purpose, and were, therefore, entitled under the law to evict the tenant."
15. ' In Ghulam Nabi's case (PLJ 1989 SC 372) (sic) this aspect considered and the Hon'ble Supreme Court has observed as follows:-- ' "The tests for determining the reasonableness and the bona fide of a landlord claim to rebuilt his property are objective tests. Thus, for example if a property is in a dilapidated, condition, the landlord's desire to rebuild it will necessary be reasonable and bona fide and this desire would not cease to be bona fide merely because the landlord tried to defeat his tenant's rights. No doubt, a landlord's refusal to give a fresh lease to the tenant is illegal, but this cannot alter the fact that desire to rebuild a dilapidated property is a bona fide desire . "
16. ' Honourable Supreme Court has also considered this proposition of law in Qamar Din's case (1997 CLC 774). The relevant observation is as follows:-- ' "But the position under clause (vi) of subsection (2) of section 13 is some what different. This clause may be said to include two important igredients. One, the rented premises is reasonably and in good faith required by the landlord for reconstruction. The landlord has obtained the necessary sanction for the reconstruction. It will be seen that cause of action can arise to a landlord if he reasonably requires the rented premises in good faith for reconstruction. In other words, if he states this much in his ejectment application, his application would be maintainable and the Rent Controller refuse to entertain it."
17. ' Similarly Karachi High Court in Haji Punhoon's case (1980 CLC 997) observed as follows:-- ' "The word 'reasonable' as it occurs in section 13(2)(vi) is a word of wide import and its meaning cannot be curtailed arbitrarily and that any reconstruction which would enable the landlord substantially to develop or improve his property would be reasonable within the meaning of the said provision. The two Courts below, therefore, rightly held that the requirement of the landlord was reasonable and in good faith."
18. In the present case respondent/plaintiff has proved his case pertaining to bona fide need of the disputed shop for reconstruction purposes. Respondent/plaintiff has, brought sanctioned building plan on record before the ejectment petition finally decided. In view of this respondent/plaintiff proves that he required the rented premises in good faith, therefore, the second contention of the appellant has also no force. I am also fortified by the following judgments:-- (1982 CLC 982); (1983 CLC 844)
19. ' Haji Gul Muhammad v. Mst. Asmat Ara (1986 SCMR 1651); Ch. K.A.M. Bajwa v. Asghar Ali and 3 others (1987 CLC 2256); Taj Muhammad v. Salahuddin and others (1995 CLC 1269); Muhammad Idrees Shah v. District Judge Jhelum (1995 CLC 143); ' Syed Shrin Gul v. Haji Abdul Majid (PLD 1968 Quetta 45);, (1995 CLC 1269); ' Qamar Din v. Capt. Shafique Ahmed Khan (1997 CLC 774).
20. ' The last contention of the learned counsel of the appellant is that a reconstruction, the object of which is to override the provisions of subsection (5-B) cannot be deemed to be bona fide. This contention is also not well-founded. This proposition of law is settled by the Hon'ble Supreme Court of Pakistan in the following terms in 3hulam Nabi's case (PLJ 1980 SC 372):-- ' "No doubt a landlord's refusal to give fresh lease to the tenant is illegal but this cannot alter the fact that the desire to rebuild a dilapidated property is a bona fide desire. Now, in such a situation, even if a landlord tries to defeat the tenant's right under subsection (5-B) the strong arm of the law is strong enough to prevent him from defeating his tenant rights but this would not by itself convert a bona fide claim into mala fide claim, the more so, as the interests of the tenant are protected by section 13(5-B), while the development of property is in the national interest and is in no way inconsistent with the objects of the rent laws."
21. ' Similarly Quetta High Court interpreted section 13(5-B) and observed as follows:-- ' But the landlord cannot be refused possession solely on the ground that he must hand over possession to the tenants of the rented land' after erection of a building as is the case where the landlord requires an old building to be reconstructed in which case he is bound under law to give possession to tenants. In the new building as contemplated in section 13(5-B).
22. ' It is settled principle of law that requirement qua bona fides of landlord is not relevant in view of adequate safeguard contemplated in section 13(5). I am supported by (1969 SCMR 131) M/s. Amir Din Allah Ditta's case Syed Shahid Gul v. Haji Abdul Majid (PLD 1968 Quetta 45).
23. It is also settled law that both the provisions i.e, section 13(2)(vi) and section 13(5-B) relate to different stages of the eviction proceedings, therefore, section 13(2)(vi) is not subservient to or controlled by section 13(5-B) of the Ordinance as is held in (1992 SC (Pak) 1026). There were ample statutory C safeguards for tenant in rent laws against landlord acting mala fide in this behalf.
24. These safeguards have been provided under section 13(5) and section 13(5-A), of the Ordinance are good enough to prove the bona fide requirement of the landlord for the purpose of the reconstruction of the building. Reliance can be placed on the following judgments:-- ' M/s. Amir Din Allah Ditta's case (1969 SCMR 131); ' Muhammad Rafi's case (PLD 1982 Lah. 380); Akbar's case (1982 CLC 982); ' Abdul Aziz's case (1987 SCMR 2074); and Haji Allah Ditta's case (1980 SCMR 41)
5. In view of the abovementioned circumstances and the principle laid down by the Superior Court, the ejectment petition was not premature as the respondent submitted building site plan before the learned Rent Controller in his evidence. The ejectment petition was not based on mala fide and was filed in good faith for the purpose of the reconstruction of the building. The provisions of section 13(2)(vi) and section 13(5-B) are not destructing each other as both were attracted at different stages. The rights of the appellant is fully protected by the statutory safeguard and the respondent is bound/compelled by the provisions of Rent Restriction Ordinance to involve the position of newly constructed building to the appellant.
6. The case was fixed for re-hearing today i.e, 26-2-1998. The learned counsel for the respondent argued the case for some time and respondent has made following statement: (Copy of the same is placed on record as Annexure I):--
(i) He shall complete the construction of the disputed property within six months positively.
(ii) He shall hand over the shop to the appellant after construction on rent.
25. ' For what has been discussed above including statement of respondents the appeal is disposed of in the above terms. There is no order as to costs.