' RANA BHAGWAN DAS, J.--These appeals with the leave of this Court arise out of common judgment, dated 27-9-1995 in six F.A.Os. By the Balochistan high Court upholding Rent Controller's order directing ejectment of the appellants from the demised shop premises on the ground of reasonable requirement for reconstruction in good faith by the respondents.
2. Appellants are the tenants in six shops situated Meconghy Road, Quetta. Respondents initiated ejectment proceedings against them on the grounds of default in payment of rent, reasonable requirement of the premises for reconstruction and for personal use and occupation. Appellants resisted the eviction pleas by raising a preliminary objection assailing the locus standi of respondent No,2-Malik Khalid Hassan for filing eviction applications. They also disputed the default and requirement of the shops for demolition and reconstruction.
3. On the pleadings of the parties learned Rent Controller settled the following issues:--
(1) Whether the application is bad for misjoinder of applicant No,2? If so, to what effect?
(2) Whether the respondent has failed to pay the rent to the applicants from November, 1988 to May, 1992?
(3) Whether the applicants required the premises in question bona fide and in good faith for demolishing and reconstruction thereafter for occupation?
(4) Whether the respondents are liable to be evicted?
(5) Relief.
4. Both the parties adduced evidence in support of their respective contentions. On assessment of evidence learned Rent Controller, Quetta, repelled the preliminary objection and held the eviction applications to be maintainable. Issue relating to default was not pressed before him. On Issue No,3, he recorded a finding of fact in favour of the respondents and resultantly directed ejectment of the appellants. Being aggrieved, appellants preferred separate appeals before the High Court of Balochistan which were disposed of by a common judgment upholding the view taken by the Rent Controller leading to the aforesaid appeals by leave of this Court.
5. Mr. Muhammad Aslam Chishti, Senior Advocate Supreme Court, appearing for the appellants vehemently urged that respondent No,2 being neither the co-owner nor landlord of the demised premises was not competent to file ejectment applications against the appellants; that in any event, respondents could not seek eviction of the appellants from the tenanted premises on the ground of personal requirement of their brothers as the respondents as well as their brothers admittedly reside at Zhob; that the respondents miserably failed to establish that they required the premises in good faith for their own occupation; and lastly, then even the prayer for demolition and reconstruction of a building on the site of the shops as well as huge bungalow owned by respondent No,1 was neither reasonable nor in good faith.
6. On the other hand, Mr. Shakil Ahmed, Advocate Supreme Court learned counsel for the respondents supported the impugned judgment and submitted that the property being ancestral, having devolved on the respondents and their three brothers, respondents were legally justified in seeking the ejectment of the appellants for demolition and reconstruction of a residential building for their own use and occupation; that respondent No,2 was not only co-owner in the property but also acted and appeared as duly authorised attorney for and on behalf of respondent No,1; and that the requirement of the premises for reconstruction and self-occupation was not only reasonable and in good faith but also rightly concluded by concurrent findings of two Courts below which could not be interfered with by this Court in the absence of any material to demonstrate non-reading or misreadng of evidence.
7. Adverting to the contentions raised, suffice it to say that admittedly the property in question belonged to late Malik Gul Hasan who died about 9 years before the evidence of the parties was recorded in 1993. It is not disputed that after the death of their predecessor-in-interest the property devolved on his five sons including the two respondents, all of whom are permanently settled at Zhob. It is also in the evidence that the property has been mutated in the name of respondent No,1 Malik Ahmed Shah whereas ejectment was sought for his self-occupation as well as his brother Malik Khalid Hassan who was lawfully authorizied to act, appear and represent respondent No,1, latter being unable to act and appear in person by reason of his ailing health. Both the Courts have concluded that respondent No,2 had been dealing with the collection of rent enhancement of rent and negotiations for vacating the premises with the appellants and was authorized to receive rent.
We do not, therefore, find any merit in the submission that this respondent could not maintain the ejectment applications. On overall reappraisal of the evidence we are of the view that respondent No,2 fell within the purview of the expression "landlord" as defined in section 2(c) of the Balochistan Urban Rent Restriction Ordinance,. 1959 (Ordinance VI of 1959) which reads as follows:-- ' "'Landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving the title under a landlord."
8. Assuming for the sake of argument, that if the contention of the appellants is accepted, in view of a valid power of attorney executed in his favour by respondent No,1, in all fairness, he could lawfully act, appear and prosecute the cause of respondent No,1 on his behalf. Even otherwise this question of fact being concluded by concurrent findings of two Courts below including the High Court, we are not inclined to interfere with this finding. It may, however, be observed that the respondents having not pleaded the cause of remaining three brothers cannot in law be permitted to espouse their cause by urging that besides them the property after reconstruction was required for occupation of remaining three brothers. There is no gainsaying that the provisions of Code of Civil Procedure may not be stricto senso applicable to the proceedings before a Rent Controller, broad and equitable principles regulating the procedure of the proceedings before the Rent Controller can always be invoked and attracted in the interest of justice and fairplay.
9. Adverting to the next ground that the respondents could not legally seek eviction of the appellants on the ground of personal requirement as well as reconstruction as they utterly failed to prove by convincing evidence that they did not possess any other accommodation or that the accommodation available with them was insufficient for their use and occupation, we may observe that it is in the evidence that no doubt the respondents are settled at Zhob, their family members have grown up and their children cannot be shifted to Quetta for their education for want of proper accommodation. This circumstance has not been seriously converted. As regards the requirement of the building for reconstruction, all that is needed under the law is that a landlord should reasonably and in good faith require the premises for reconstruction and for that purpose he should have obtained approval of building plan from the local authorities concerned. In the present case respondents not only pleaded and stated on oath that they wanted to reconstruct building on the site of the shops as well as the adjoining bungalow spreaded over more than 5000 sq. Ft. Their requirement thus can neither be termed as unreasonable nor arbitrary and unfair. Respondent No,2 in his evidence categorically stated this fact which was not seriously controverted by suggesting that such requirement was tainted with mala fides or any ulterior motive. In fact provisions of section 13(2)(vi) of Ordinance VI of 1959 lay down the following criteria for seeking ejectment of a tenant on the ground of reconstruction:-- "(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that-- (i)
(ii)
(iii)
(iv)
(v)
(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."
10. On the other hand a landlord can ask for ejectment of his tenant from a non-residential building or rented land in terms of section 13(3)(a)(ii) of Ordinance VI of 1959 firstly if he requires it in good faith for his own use or for the use of any of his children; secondly that he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land suitable for his needs at the time; and thirdly that he has not vacated such a building or rented land without sufficient cause after the commencement of the Ordinance in the said urban area.
11. On comparative analysis of both the provisions it may be observed that they are independent of each other and not subject to the conditions laid down in either of the provisions. The case of the respondents, however, appears to be composite in nature, in that, they require the shops to be vacated for amalgamation with an old adjoining bungalow for reconstruction of r. Residential building for their self-occupation. In law, a person is entitled to hold, possess and acquire any property subject to reasonable restrictions. Such right is even guaranteed under the Fundamental Rights enshrined in the Constitution. Now, if the respondents decided to demolish their shops and construct a residential building on a piece of land alongwith the area of the shops, legally speaking, no restriction can be placed on their right as they are always entitled to improve the conditions and nature of their building without any lawful reservation.
12. Mr. M. Aslam Chishti strenuously contended that since the respondents did not prove that they were not occupying any other building in the same urban area suitable for their requirements they cannot be permitted to uproot the established business of the six appellants. We are afraid we cannot subscribe to this view of the learned counsel which besides being far-fetched appears to be hypertechnical. Perhaps respondents' case before the learned Rent Controller appears to have been handled by a counsel not fully well-versed with the legal implications and the ejectment application appears to be unhappily drafted. No doubt, the application candidly seems to convey the sense that the respondents wanted to reconstruct a residential building and required it in good faith for their self-occupation, it was not stated in so many words that they were not occupying any other building suitable for their needs at the relevant time.
13. Argument of the learned counsel that the bungalow lying vacant should satisfy the requirements of the respondents being not acceptable to the respondents, their desire for a better and latest accommodation must be examined from their point of view because they do not want the existence of shops in front of their residential bungalow. Be that as it may, it is prerogative of the landlord to use his property according to his own choice and discretion rather than to be dictated by the terms convenient to a tenant.
14. The question as to whether the two grounds for eviction can be combined in an ejectment petition was also strenuously agitated by the learned counsel which has already received careful consideration of the superior Courts. In Bashir Hussain v. Muhammad Saeed (PLD 1976 Lahore 1095) it was observed as under:-.- ' "The application as constituted appears to be a combination of two grounds. One is a ground of re-construction and another is the ground for personal requirement for the use of Habib Bank Limited. A tenant cannot, however, be ejected under subsection (3)(ii) of section 13 on such a ground since the ground of personal use is relevant when the property is required for use either of the landlord or any of his male children. The application of the respondent landlord for ejectment of the appellants was not competent and was liable to be dismissed for the above reasons."
15. In Muhammad Yusuf v. Zohran Bibi (PLD 1973 Peshawar 186) learned Single Judge expressed the view that two pleas were evidently destructive of each other inasmuch as how could landlady conceivably need the shop premises for her own use when on her own showing these were in dilapidated condition and needed reconstruction. Earlier, in a case arising out of the provisions under section 10(2)(c) of the Karachi Rent Restriction Act, 1953, this Court in Abdullah Baloch v.
Adam Ali (PLD 1961 SC 28) held that where the landlord, in his application to the Rent Controller, had linked up the requirement of reconstruction with his own personal requirement expressly and in most specific manner and the findings of the Rent Controller specifically negatived each of the personal requirements alleged by the landlord such findings must necessarily react upon the allegation of reasonable and bona fide requirement for reconstruction. These views might be justified in the given circumstances of each case but it has gone under change and in subsequent cases it was authoritatively laid down that both the pleas are mutually exclusive and not destructive of each other.
16. In Abdul Bari v. Khadim Hussain (PLD 1978 SC 78) this Court candidly ruled that clause (vi) of subsection (2) of section 13 of Ordinance VI of 1959 does not, by itself, impose any restriction as to the nature and purpose of the new building which is to be reconstructed in place of the old building. It was clarified that if this clause is to be read as being subject to the provisions of subsection (5-B) of the same section in the sense that the nature and character of the building cannot be changed by reconstruction, then the result would be to prevent future development of property even though its environment and the requirements of the community at large, may have changed. Earlier,. Muhammad Afzal Zullah, J. (as his lordship then was), in Khuda Bakhsh v.
Muhammad Yousuf (PLD 1976 Lahore 275) distinguishing Muhammad Yousuf's case (supra) and Abdullah Baloch's case (supra), candidly held that plea of personal requirement and plea of reconstruction of premises were not mutually destructive. This principle of law was also affirmed by Sindh High Court in Haji Ali Khan v. Madan Das (1988 MLD 2391) re-stressing that pleas of reconstruction and personal need were inter-linked with each other. Furthermore, this principle was affirmed by this Court in Muhammad Shafique v. S.M. Khurram (1983 SCM R 1227) lying down the rule of law that plea of reconstruction and plea of personal use are not mutually destructive and failure of landlord's plea of reconstruction does not disentitle him to eviction on ground of personal requirement. In a later case, learned Single Judge of Lahore High Court in Taj Muhammad v.
Salahuddin (1995 CLC 1269) referred the rule laid down in Abdullah Baloch and Abdullah Ban's cases (supra). In another case decided as far back as November, 1968, it was ruled in Amir Din Allah Ditta v. Adamji Abdullah (1969 SCM R 131) that in an ejectment application under section 13(2)
(vi) of Ordinance VI of 1959 bona fides of landlord were not relevant in view of adequate safeguard contained in section 13(5) of the said Ordinance.
17. On resume of the case-law and applying the principles in the facts and circumstances of the instant case we are of the considered view that the requirement of the respondents for reconstruction of a building for their own occupation was genuine, reasonable, in good faith and wholly warranted by the circumstances. There appears to be no legal bar or embargo on the exercise of their right to ask for eviction of the appellants for reconstruction and they cannot be forced to reside in the adjoining bungalow which would frustrate the spirit of the law and be violative of the Constitutional guarantees given to every citizen. The fact that the respondents have sought ejectment from non-residential premises for reconstruction of a residential house is also not fatal as the building plan has been duly approved by the Municipal Corporation, Quetta.
Furthermore, this question has already been resolved by this Court in Amir Din Allah Dicta's case (supra).
18. For the aforesaid facts and reasons we find no merit in these appeals which must fail and are hereby dismissed leaving the parties to bear their own costs. Appellants are directed to hand over vacant possession of the demised shops to the respondents on or before 15th March, 2001 with a further direction to continue to pay usual rent and utility charges till then, failing which writ of ejectment shall issue without prior notice and with police aid, if necessary.