' MUHAMMAD YUNUS SURAKI VI, J.---This appeal by way of leave of the Court, has been directed against the judgment passed by the High Court on 10-11-2000, whereby the writ petition filed by respondents, herein, was accepted and after framing an issue the case was remanded to the Rent Controller for the retrial of the case.
2. The necessary facts, giving rise to the present appeal, are that the appellants herein are owners of shops Nos.3, 4, 6 and 7, situated in Plot No,1, Sector F/1, Mirpur, which were rented out to respondents Nos.1 to 4 through different agreements. The appellants needed the said premises for the purpose of reconstructing a shopping plaza in order to start their own business and served notice upon the tenants-respondents for vacating the said premises. The respondents failed to comply the notices which obliged them to start ejectment proceedings.
3. The parties led their evidence in support of their respective assertions. The Rent Controller ordered the ejectment of respondents Nos.1 to 4 vide his judgment, dated 31-5-1999. The respondents preferred an appeal before the District Judge which was also dismissed vide his judgment, dated 22-2-2000. Feeling aggrieved by the judgment of the District Judge, the respondents filed a writ petition before the High Court which was accepted vide the impugned judgment of the High Court, dated 10-11-2000 and the case was remanded. It is the aforesaid judgment of the High Court which is the subject of present appeal.
4. In support of appeal it has been vehemently contended by Mr. M. Riaz Tabassum, the learned counsel for the appellants, that the High Court fell in error in upsetting the concurrent findings recorded by the Rent Controller and the District Judge. The learned counsel contended that the High Court mainly accepted the writ'petition on the ground that it was for the appellants to prove bona fide of their ejectment application but neither any issue was framed in this regard nor there was sufficient evidence on record substantiating the fact that the application filed by appellants was bona fide one. Thus, the High Court form the view that the application for ejectment filed by appellants was liable to be remanded keeping in view the provisions contained in section 14(2)(vi) of the AJ&K Rent Restriction Act. The learned counsel further contended that it is the substance of allegations and the contents of application from which it is to be gathered as to .Whether the application for ejectment is bona fide or not. It is not necessary under law to frame a separate issue on the point as the Code of Civil Procedure has no application to the proceedings under Rent Restriction Act, particularly so when the parties were alive to the point involved. On careful perusal of contents of application and the statement of one of the appellants, the Rent Controller rightly reached the conclusion that the application filed by appellants was bona fide as such there was nothing wrong in the orders recorded by the Rent Controller and the District Judge. The learned counsel contended that the High Court was not vested with the jurisdiction in exercise of writ jurisdiction to upset the concurrent findings recorded by the Rent Controller and the appellate Court. The learned counsel for the appellants in support of his contentions relied on Haji Muhammad Ayub v. Syed Buzurag Shah and others PLD 1983 Pesh. 67, Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577, Badar & Brothers v. Muhammad Aslam and 2 others PLD 1977 Pesh. 80 and Dr. Hassan v. Additional District Judge 1983 CLC 2446.
5. Mr. Liaqat Ali Khan, the learned counsel for respondents, strenuously argued that the requirement of section 14(2)(vi) of the AJ&K Rent Restriction Act is that it is a condition precedent for an applicant to prove that he needed the building or the property for his personal use or for reconstrucang the same and that the ejectment application was bona fide. Unless an issue is framed by the Rent Controller on the point it was not possible for him to arrive at a definite conclusion that the application was made in good faith. Thus, according to the learned Counsel for respondents, the impugned order of the High Court was not open to exception. The learned Counsel for respondents has relied on a case reported as Aziz Begum v. Guarantee Life and Employment Insurance Lahore PLD 1975 Lah. 594 in support of his contention that a landlord can eject a tenant for the purpose of reconstruction of his property only if he proves that he intended to demolish the building for reconstructing a new one and filed an approved plan by the Town Improvement Trust or the Municipal Corporation alongwith his application. The learned counsel for respondents has also relied upon another case titled Ghulam Nabi v. Mushtaq Ahmad PLD 1980 SC 206 wherein it was observed that landlord cannot evict tenant merely for reason of his desire to rebuild property but on the other hand he is bound to prove the requirement that the' same was not only reasonable but also bona fide.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, we have come to the conclusion that both the contending parties have adduced evidence in support of their respective assertions. The appellants in support of their claim got recorded statement of one of the appellants. Muhammad Idrees, as his own witness, and produced documentary evidence Exhs P . A . , P.A./1, P.A./2, P.A./3, P.A./4, P.A./5, P.A./6, P.A./7, P.A./8 and P.A./9. In rebuttal Raja Talib Hussain and Muhammad Javed were examined as witnesses for the respondents. One of the respondents also got his statement recorded and produced the documentary evidence Exh.D.A. On the careful perusal of evidence produced by the parties the learned Rent Controller reached the conclusion that from the evidence produced by appellants it becomes clear that appellants wanted to raise the construction of plaza in their plot and in this regard Muhammad Idrees alongwith his statement produced site plan Exh.P.A./8 and a permission order for construction Exh.P.A./5 as well as P.A./7, a document for permission of construction of commercial plaza. It *as also observed by the learned Rent Controller that the non-applicants- respondents could not rebui the. Claim of appellants. It was further observed by the Rent Controller that respondents put much stress on the contention raised by the respondents that in fact the appellants had filed the present application in order to obtain Pagri (advance money) which is a normal practice. The learned Rent Controller also observed that respondents have stressed much that from one Subedar Faiz an amount of Pagri was received by the 'appellants as one of the appellants Muhammad idrees in his statement Exh.D.A. Which was got recorded in some previous proceedings, he . Admitted the 'receiving of Pagri money from said Subedar Fiiz but it was explained by the learned Rent Controller that the appellant has further clarified in his statement before the Court that Subedar Faiz and another person had promised to him that whenever the appellants would demand their ejectment from the shops rented out to them, they would vacate the same, as such the statement of appellant shall be read as a whole and not in violation with the other statement. In his statement recorded during the -trial of the present 'case the appellant Muhammad Idrees has vehemently denied the allegation of receiving any Pagri from one Subedar Faiz, therefore, his mere assertion in some previous proceedings that he had received Pagri amount from Subedar Faiz does not deprive the appellant from initiating The ejectment proceedings against respondents, particularly, so when a reasonable explanation has been given by Muhammad Idrees, one of the appellants, in his statement recorded before the Rent Costroller referred to above. The Rent Controller has also observed that the appellants genuinely need their premises to reconstruct a plaza and they have been able to prove the said assertion.
7. It may also be pointed out that at the time of framing issues the learned counsel for respondents did not raise any objection before the Rent Controller for recasting of the issues. Similarly in appeal before the District Judge no such plea was taken by the respondents. Even before the High Court when the writ petition was filed by respondents no such plea was raised by respondents that they were prejudiced by not framing the issue with regard to bona fide of application for ejectment filed by the appellants. This shows that the respondents were alive to the points involved in the case and one of the vital points which was the bone of contention between the parties was as to whether the shops in dispute were required by the appellants for the purpose of reconstruction of a plaza or for their own use. So, in the above circumstances it is too late in the light of the day for the respondents to raise such a plea while arguing the case before the High Court that respondents have been seriously prejudiced by non-framing the issue with regard to the bona fide of the application filed by appellants. The High Court in exercise of writ jurisdiction is not vested with the jurisdiction to sit as a Court of appeal against the judgments of tribunal of exclusive jurisdiction; moreso when the provisions of C.P.C. Have no application in the proceedings 'under the Rent Restriction Act. Therefore, the contention raised by the learned counsel for the respondents merits no consideration and the same stands repelled.
8. In a case reported as Haji Muhammad Ayub v. ,Syed Buzurag Shah and others PLD 1983 Pesh. 67 it . Was observed that in a case for ejectment on the ground of reconstruction landlord has to prove (i) that house in dispute was reasonably and in good faith required for reconstruction and
(ii) that the authority concerned granted sanction for reconstruction. Passing of sanction order before date of filing ejectment petition is not requirement of law. Production of requisite sanction order by landlord at proper stage of case was held sufficient compliance of provisions of law. It was thus, elaborated in the aforesaid authority that in an ejectment proceeding on the ground of reconstruction placing on record the site plan, sanction by the authority concerned for reconstruction of building is not condition precedent. Ne words used in the law are "necessary sanction for the said reconstruction or erection", and this requirement was satisfied by the appellants by bringing on record the copy of necessary sanction later on. The reliance in the above case was placed on the case of Badar & Brothers v. Muhammad Aslam and 2 others PLD 1977 Pesh.
80.
' In a case reported as Badar & Brothers v. Muhammad Aslam and 2 others PLD 1977 Pesh. 80 it was observed that the requirement of landlord who intends to demolish the building for reconstructing a new one on the site has to obtain the necessary sanction from the Cantonment Board and it is not incumbent under the law that he should also attach the approved plan in this regard with the application for ejectment. To this extent the dictum of the Rent Controller is misconceived.
9. In another case reported as Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577 it was observed that there is no gainsaying that 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 proceduie of proceedings before the Rent Controller can always be invoked and attracted in the interest of justice and fairplay. It was also observed that for an ejectment proceeding all that is needed under the law is that 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. It was also observed that no restriction could be placed on the rights of the landlord as he was always entitled to improve the condition and nature of his building without any lawful reservation. It is always the 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.
11. In a case reported as Dr. Hassan v. Additional District Judge 1983 CLC 2446 it was observed that the requirement on the ground of reconstruction, irregularity arising from filing of eviction application without approved plan stands removed in case approval of plan is given during pendency of eviction application Dismissal of eviction application on the ground of this irregularity is not warranted.
12. The authority cited by Mr. Liaqat Ali Khan, the learned Counsel for the respondents, titled Aziz Begum v. Guarantee Life and Employment Insurance Lahore PLD 1975 Lah. 594 wherein it has been laid down that it is a condition precedent for the landlord to attach alongwith his application for ejectment the sanction by the concerned authority for reconstruction of the building, is distinguishable by the authorities referred to by Mr. M. Riaz Tabassum, the learned counsel for the appellant's titled Haji Muhammad Ayub v. Syed Buzurag Shah and others PLD 1983 Pesh. 67, Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577, Badar & Brothers v. Muhammad Aslam and 2 others PLD 1977 Pesh, 80 and Dr. Hassan v. Additional District Judge 1983 CLC 2446 as the same are based on sound and cogent reasons. In the said authorities it has clearly been observed that the only requirement is that the landlord should place on record the necessary sanction from the concerned Municipal Corporation or the relevant authority for reconstruction of the building.
13. So far as the authority cited by Mt. Liaqat Ali Khan, the learned counsel for respondents titled Ghulam Nabi v. Mushtaq Ahmad PLD 1980 SC 206 is concerned, it has no bearing to the facts of the case in hand. Therefore, the same being irrelevant does not advance the case of the learned counsel for the respondents.
14. It is an admitted position between the parties that Muhammad Idrees, one of the appellants, during his statement has placed on record the sanction for reconstruction of building duly approved by the Municipal Corporation, Mirpur and the said document was exhibited as Exh.P.A./5.
Therefore, the same was sufficient in the eye of law that the appellant's application for reconstruction of building was a bona fide. Apart from that at the time of tendering the document of sanction for reconstruction of building during the evidence no objection was raised with regard to its admissibility by the learned counsel for the respondents. Thus, it stood tendered in the evidence without any objection having been raised by respondents or their counsel. Similarly in the objections filed by respondents/non-applicants, before the Rent Controller no such objection was raised by respondents/non-applicants. Neither this plea was raised in the writ petition nor even argued before the High Court. Therefore, the same cannot be allowed to be raised at this stage for the first time.
15. In the light of what has been stated above, by accepting the appeal, we set aside the impugned judgment passed by the High Court, dated 10-11-2000 and restore the judgment passed by the District Judge. In the circumstances of the case we make no order as to costs.