1. This first rent appeal arises out of the order passed by the learned Rent Controller, Sukkur on 17-5- 2000, whereby he had allowed the said application of the respondent for eviction of the appellants from the disputed house on the ground of reconstruction only. The appellants are directed to vacate the premises in question and hand over the same to the respondent within 30 days from the date of the order. The appellants being aggrieved with the impugned orders have preferred this appeal on the following facts.
2. That the appellants are in occupation/possession of the house/property bearing C.S.No.D-572 situated at Shikarpur Road, Sukkur, as tenants at the rent of Rs.15 per month. The said house was rented out to the father of the appellants, namely, Muhammad Ali Shah by its previous owner/landlord namely Abdul Karim son of Abdul Ghafoor. The said previous owner/landlord of the said property had filed ejectment case against the father of the appellants, namely, Muhammad Ali Shah, in the Court of Rent Controller, Sukkur, being R.A. No.9 of 1978 titled as Abdul Karim v.
3. Muhammad Ali Shah, on the ground of default in payment of rent at the rate of Rs.15 per month.
4. The said ejectment case was dismissed by the learned Rent Controller, Sukkur, by his order, dated 25-3-1981. The father of the appellants, namely, Muhammad Ali Shah had filed application under section 10(3) of the Sindh Rented Premises, Ordinance, 1979 (hereinafter referred to as the "Ordinance"), for deposit of rent, against the said previous owner/landlord, namely, Abdul Karim, being R.A. No.16 of 1982, in the Court of Rent Controller, Sukkur, which was allowed and as such the father of the appellants during his lifetime had regularly been depositing the rent of the said house in the Court at the rate of Rs.15 per month and after his death, the appellants being sons of the said Muhammad Ali Shah are in occupation/possession of the said house as tenants by operation of law. The appellants had deposited the rent of the said house in the Court in the said case up to February, 1999.
5. On 4-3-1999, the respondent alongwith one Lutfullah Siddiqui came to the aforesaid house of the appellants and informed them that the respondent had purchased the aforesaid house/property on 22-2-1999 from its previous owner/landlord, namely Abdul Karim and asked the appellants to vacate the aforesaid house within a few days, failing which the appellants would be dispossessed from the aforesaid house by force and through illegal means. The appellants apprised the respondent and said Lutfullah Siddiqui that they are in occupation/possession of the aforesaid house as tenants of the previous owner/landlord, namely, Abdul Karim and after purchase of the aforesaid house/property by the respondent they have become his tenants by operation of law_ The appellants offered the respondent that they are ready to pay the rent of the aforesaid house to him at the rate of Rs.15 per month from the date of his purchase viz. 23-2-1999, but the respondent refused to receive the rent from the annellants. Thereafter, the respondent and the said Lutfullah Siddiqui went away by issuing threats to the appellants that they would come again for illegal eviction of the appellants from the aforesaid . house/property. On 6-3-1999, the appellants approached the office of Sub-Registrar, Sukkur and enquired about the change of ownership of the aforesaid house/property from the name of its previous owner/landlord to the name of the respondent, where they came to know that the aforesaid house/property had been purchased by the respondent from its previous owner/landlord namely Abdul Karim on 22-2-1999. According to the appellants, the respondent with ulterior motive and mala fide intention has not served any notice upon the appellants so far as required under section 18 of the Ordinance. However, the appellants on 4-3-1999 for the first time came to know about the change of ownership of the aforesaid house/property. Thereafter, the appellant had remitted the rent of the disputed house to the respondent through postal money order bearing M.O. No.136, dated 22-3-1999 for Rs.15 being rent from 22-2-1999 to 21-3-1999 at the rate of Rs.15 per month but the respondent had refused to receive and accept the said money order and the same was returned to the appellants. Finding no other way, the appellants on 3-4-1999 had filed an application under section 10(3) of the Ordinance, for deposit of rent against the respondent being R.A. No.21 of 1999 in the Court of the learned 1st Senior Civil Judge and Rent Controller, Snkkur, which was allowed on 3-4-1999. Hente, the appellants have regularly been depositing the rent of the disputed house in the Court in the said case up to date, at the rate of Rs.15 per month and no rent is outstanding against the appellants.
6. On 7-3-1999, according to the appellants, the respondent and one Lutfullah Siddiqui (the general attorney of the respondent) alongwith some unknown persons had come to the disputed house/property and they had tried to demolish the disputed house by force in order to evict the appellants illegally. Since the respondent and said Lutfullah Siddiqui had issued threats to the appellants- for their eviction/dispossession from the disputed house by force, therefore, the appellants on 8-3-1999 had filed a civil suit for declaration and perpetual injunction against the respondent and said Lutfullah Siddiqui in the Court of Joint Civil Judge, Sukkur, being Civil Suit No.3 of 1999. Alongwith the plaint of the said suit the appellants had also moved an application under Order 39, Rules 1 and 2 read with section 151, C.P.C. for restraining the respondent and the said Lutfullah Siddiqui from evicting/dispossessing the appellants from the disputed house/property by force or in any other manner without due process of law till decision of the said suit. The learned Joint Civil Judge, Sukkur, was pleased to grant the status quo in favour of the appellants and against the respondent and the said Lutfullah Siddiqui. On 6-8-1999, by consent of the parties, the said suit was disposed of by the learned Joint Civil Judge, Sukkur and as such the respondent and the said Lutfullah Siddiqui had been permanently restrained from evicting/dispossessing the appellants from the disputed house/property and from demolishing any portion of the disputed house/property by force or in any other manner without due process of law. Vide order, dated 6-8- 1999, passed by the learned Joint Civil Judge, Sukkur, Civil Suit No.3 1999.
7. Apart from the disputed property, which is in possession of the appellants, the respondent is also owner of other properties bearing C.S. No. D-567 measuring 310-8 square Yards, D-568 measuring 46-0 square yards and D-569 measuring 37-0 square yards, situated at Shikarpur Road, Sukkur.
8. According to the appellants, in the month of May, 1999, the respondent had filed a false ejectment case against the appellants being R.A. No.37 of 1999, in the Court of 1st Senior Civil Judge and Rent Controller Sukkur, seeking eviction of the appellants from the disputed house on alleged grounds of default in payment of rent and the alleged personal use of the respondent after reconstruction of the disputed property. It is also alleged that in his main application/case had not specifically pleaded the grounds of personal use and reconstruction. It is submitted that the respondent in his main application/case had claimed the rent of the disputed house from the appellants at the rate of Rs.5,000 per month instead of actual rent of Rs.15 per month.
9. The appellants had filed their written statement, wherein inter alia they denied the allegation of the default in payment of rent and the alleged requirement of the disputed house for the use of respondent after reconstruction of the disputed property. The parties had led their evidence before the learned trial Court by way of affidavits. The attorney for the respondent, namely, Lutfullah Siddiqui had filed his affidavit-in-evidence. It is alleged that the said attorney of the respondent had not produced/filed any document whatsoever with his affidavit-in-evidence. The said attorney of the respondent was cross-examined by the counsel for the appellants. Appellant No.!, who is real brother and general attorney for rest of the appellants, had filed his affidavit-in-evidence with copy of general power of attorney as well as certified true copies/original documents duly exhibited as Exh.23 to Exh.56. The appellant No.1 who is general, attorney for rest of the appellants was cross-examined by the counsel for the respondent.
10. After hearing the arguments of the counsel for the parties, the learned trial Court framed the following issues/points:-- "(1) Whether there exists relationship of landlord and tenant between the parties?
11. (2)Whether the opponents have committed wilful default in payment of rent since 23-2-1999, if so, at what rate?
12. (3)Whether the applicant requires the premises in question for reconstruction and for personal bona fide use?
13. (4)What should the order be?"
14. The learned trial Court decided the issue/point No.1 in affirmative while the issue/point No.2 decided in favour of the appellants and against the respondent. Regarding issue/point No.3 it is submitted that the learned trial Court decided the ground of personal use against the respondent and in favour of the appellants while ground of reconstruction decided in favour of the respondent and against the appellants. The learned trial Court by giving its finding under issue/point No.4, allowed the ejectment of the appellants from the disputed house through the impugned order on the ground of reconstruction only.
15. I have heard Mr. Abdul Naeem, learned counsel for the appellants as well as Mr. S. Manzar Alam, learned counsel for the respondent and also gone through the material available on record.
16. It has been urged by the learned counsel for the appellants that the trial Court has failed to consider and appreciate that respondent had neither specifically pleaded/taken ground of reconstruction of the disputed property in his said application nor in affidavit-in-evidence of_his attorney (Lutfullah Siddiqui) and, therefore, the findings of the trial Court in respect of Issues Nos.3 and 4 on the grounds of reconstruction are liable to be set aside on this ground alone. It is further stated by him that respondent had neither produced in evidence original sanctioned/approved building plan nor any approval letter from competent authority viz. Sukkur Municipal Corporation, Sukkur. Not only this but no documents whatsoever was produced/exhibited on behalf of the respondent in support of his case. It is further urged that the documents produced by the appellants in affidavit-in-evidence of Liaquat Ali Shah exhibited as Exh.23 to Exh.56 are available on the record but the same are without signatures of the learned Presiding Officer. In this respect, it is settled law that the act of the Court shall prejudice no man, since the same is liable to be set aside.
17. The learned counsel for the appellants has placed reliance on the following cases:--
(1) Muhammad Israr v. Sh. Muhammad Salim 1982 CLC 1592(b) 1593, (2) Naik Muhammad v. Bagh Ali PLD 1987 Lah. 208(b), (3) Abdul Aziz v. Rent Controller and others 1987 SCMR 2074 and (4)
18. Muhammad Akbar and another v. Dr. Muhammad Rafique and others 1980 SCMR 483.
19. Mr. S. Manzar Alam, learned counsel for the respondent has contended that premises in question is needed for reconstruction and for personal bona fide use. The said premises is in dilapidated condition and requires for reconstruction. He has also produced photo copy of the approved plan, which shows that the respondent intends to reconstruct the premises. In support of his contentions, learned counsel for the respondent referred to the following cases:--
(1) Muhammad Sadiq v. Abdul Rauf 1999 MLD 2592; (2) Safdar Butcher v. Khawaja Pervezuddin Butt PLD 1996 Kar. 508 and (3) Muhammad Iqbal through Legal Heirs and others v. Khan Muhammad through Legal Heirs and others PLD 1999 SC 35(a).
20. Learned Rent Controller has decided the issue of reconstruction in favour of the respondent/landlord and ordered eviction of the appellant.
21. As far reasonableness of decision to reconstruct the building is concerned, it is the owner of the premises who is in the best position to determine whether despite the fact that the building is relatively recent or structure thereof is quite firmed, he would like to remove or reconstruct it for its benefit. Then it is mandatory for consideration for the owner of the property to produce a sanctioned plan of the proposed building. It is advantageous to rely on a case of Abdul Aziz v. Rent Controller and others in 1987 SCMR 2074. The operative part of the judgment is reproduced as under:-- "The contention raised by the learned counsel for the petitioner also overlooked that it has been repeatedly held by this Court in cases under clause (iv) of section 13(2) that if the owner of a building seeks eviction of the tenant on the ground of reconstruction, the only condition *hat he is required to fulfil is to produce a copy of duly sanctioned plan of the proposed building and that in view of the provisions of subsection (5) of section 13 it shall be presumed that the landlord requires the building for reconstruction (or material alteration) both reasonably and bona fide."
22. The same view was reiterated in Muhammad Akbar and others v. Dr. Muhammad Rafique and others 1980 SCMR 483, operative part thereof is reproduced as under:-- "The requirement of the law is that there should be sanctioned plan of construction or reconstruction of the property, and it is, therefore, immaterial whether the forwarding letter of the Municipal Authority concerned is produced or not, if the Court is satisfied .that the plan produced is, indeed, a sanctioned plan as required by law. None of the .three Courts which have dealt with the case, have doubted the genuineness of the sanctioned plan. The learned Additional District Judge, who decided the matter against the landlords, proceeded on the basis that the plan had been sanctioned during the pendency of the ejectment petitions and that one of the landlords, named Muhammad Bashir was already residing in a rented house. In other words even he did not doubt the genuineness of the sanctioned plan. In the circumstances, there is no merit in the submission that the sanctioned plan was not duly proved on the record."
23. It is further observed that the respondent has not filed original nor the certified copy of the approved plan, but a photo copy has been placed on record, which was filed alongwith ejectment application, the 'same cannot be considered to be an evidence. Therefore, the finding of the trial Court on the ground of reconstruction is without any basis and same is not sustainable in law. The trial Court has failed to consider and appreciate that in the instant case the ground of reconstruction was linked with the ground of personal requirement, The alleged requirement of reconstruction was on account of personal requirement. Since the latter fails, its effect will be that the formal will also fall. From the above observations, it appears that the Rent Controller has not fully applied his mind judiciously to the facts of the case, as it is admitted position on record that neither any approved building.plan was produced nor exhibited in evidence on behalf of the respondent before the trial Court. Therefore, finding of the trial Court on such ground is without any basis and same is not sustainable in law.
24. Accordingly, I accept this appeal and set aside the order of the Rent Cont Roper and dismiss the application for ejectment filed by the present respondent. However, there All be no order as to costs.