' This second appeal has been filed by a landlady under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 to call in question the dismissal of her application for eviction of the respondent (tenant) on grounds of reconstruction, her son's requirement and damage to the property.
2. The building in dispute is in the ground-floor of a residential house in the city of Gujranwala. It is stated that the appellant who is a widow rented it out to the respondent, a practicing doctor, after the death of her husband in 1965 for the purpose of running a clinic. But the rent note Exh. P. 2 executed by the respondent does not show that initially the building was rented out for the aforesaid purpose, It is, however, admitted position that if not soon after the commencement of tenancy, now for a considerable time extending over a period of a decade, the respondent has used the building as a clinic. According to his learned counsel, he has installed two X-Ray plants In addition to an B. C. G. Apparatus. It is also an admitted position that he has converted the building in such a manner as to use it for his clinic. According to his learned counsel, a verandah is being used by dividing it with a wall as accommodation for indoor patients. It is also in evidence that a latrine, a dark room and some other structures have been added by the respondent for the purpose of his own convenience as also of his patients.
3. The appellant case is that her husband was using these very premises as a workshop for his metal business. It appears that after his death the business could not be run by the widow-her son, the attorney, it appears from the age given in his deposition, would be then a minor. He obtained employment in the local municipality as a clerk and continues to hold the same position. It is further claimed that the son would, if the premises are vacated, start his father's business therein.
The requirement of the appellant for the occupation of her son, it is contended, is in good faith.
Apart from this ground, the appellant's case is that the building is required for reconstruction-may be, for making it more suitable for her son's need as also, as it appears from the relevant plan including the sanctioned one, for the removal of the structures erected by the respondent and, of course, for effecting improve cents. The sanctioned plan for reconstruction Exh. P. 3 indicates that some of the works therein would be of major dimensions involving considerable expenses. The appellant's claim is that the building is required for reconstruction not only reasonably but also in good faith. The other ground is with regard to the damage to the property. The appellant's case is that the respondent not only made major structural changes in the building deforming its original plan but also made several ditches near the walls with the purported intention of planting flowers and plants therein, but care has not been taken to protect the walls. The ditches have been left unattended, with the result that water having seeped through them has injuriously affected the walls. Thus, it is claimed that the value and utility of the building has been materially impaired by the acts of the respondent.
4. On the other hand, it has been contended on behalf of the respondent that there being concurrent findings on all the three issues, this Court should not interfere in second appeal ; that the plan for reconstruction Ezh, P. 3 not having been formally proved in accordance with the law of evidence, it cannot be read as evidence ; that the reconstruction sought to be effected being partial and not of the whole of the building, it does not fall within the ambit of "reconstruction" envisaged by section 13 (2) (vi) that the appellant has not been able to prove bona fides with regard to requirement of her son because he has not given up his job as a clerk ; that while appreciating the evidence in this behalf as also with regard to the question of damage, preference should he given to the deposition of the respondent who is more respectable person that no independent witness not even an architect mentioned in the deposition of the appellant's attorney has been produced to substantiate the plea of the damage to the property nor a complaint was made to the concerned authorities regarding alleged damage to the property ; that if there would have been any seepage of water causing harm to the walls of the building, the same would have been-included for reconstruction in the plan Exh. P. 3 ; that the installation of a metal works in the budding would be more injurious to it-offer was made during the hearing of the appeal in this behalf for proper inspection by a. Competent person to discover whether the alleged damage had been caused to the property ; that in case the respondent is evicted, he will not only lose goodwill in the building in dispute, it will also cause inconvenience to his patients ; and lastly, that the application for eviction is motivated on account of desire of the appellant to enhance rent as also on account of enmity which has resulted into extensive criminal litigation between Abe parties.
5. It is true that the doctor has made considerable structural changes affecting the entire plan of the ground-floor so as to suit the needs of his clinic. So much so that the clinic is being used as a place for indoor patients. Latrine facility has also been provided. As admitted by the learned counsel, two X-R ay plants have been installed. It is common knowledge that installation of even one X-Ray plant needs structural construction particularly for foundation purposes. The comparative study of the two site plans prepared side by side on the same sheet and attached with the original eviction application --para. 3 (v) (plan not denied in para. 3 of the written statement) shows that the respondent constructed new units and walls adding a bathroom, described as ghusalkhana, on one open side of the building' and a latrine, described as ouch, in almost the middle of the constructed portion and in front of a deohri closing its approach door to the inner side. A store, latrine, dark room and a room involving construction of a considerable length of walls with provision of several doors nave been carved out of three spaces described in the original plan as verandahs. Seven ditches have been shown in the courtyard and a partitioning wall has been erected in the middle of what is described in the original plan as a verandah which, as already mentioned, is being used by the respondent as residential accommodation for indoor patients. Although there is no reason to doubt the statement made by the appellant's attorney that some damage has been caused to the walls on account of the ditches, there is nothing to show that the said damage has "materially" impaired the value of the building. I agree with the learned counsel for the respondent that in order to prove material damage to the building, more evidence was needed in this behalf. Similarly, although there is no reason to disbelieve the statement of the appellant's attorney with regard to the major structural changes made in the building by the respondent including construction of a latrine directly in front of the deohri closing its approach to ail the inner portions of the building : and this also stands supported by the composite site plan attached with the eviction application regarding which clear denial was not made iii the corresponding para. Of the written statement ; there is nothing on the record to show that this major construction by the respondent has, on account of erection of a latrine at a place which is undoubtedly odd, caused such a damage to the property which has 'materially" impaired the "value" of the property. The addition of the material; to the house on the other hand, even if it is treated as a mulba, instead of enhancing monetarily, the value of the building by a small percentage, cannot be said to have reduced it. But the same cannot be held with regard to utility of the building. A tenant can be ejected on either of the two grounds-when he materially impairs the 'value', or materially impairs the 'utility' of the building. In this case, when considering the admitted structural changes made by the respondent in the building and while having a bare look at the comparative site plans, it becomes absolutely clear that the utility of the building, as it existed at the time of renting out, has undoubtedly been materially impaired. No one can use any of the inner parts of the building, from the deohri side. A latrine has blocked the connecting door.
Three verandahs have been cut into small spaces. The utility of another verandah has been rendered into nil by construction of several small service units like dark room, latrine, etc. The utility of yet another large verandah, which must have been provided in the building for open use, has been materially affected by converting it into accommodation for resident patients. A small courtyard, which must have bad considerable utility when initially provided in such a small house, has lost all utility after it has been infested with seven ditches and the provision of a bath room in corner thereof which otherwise too has practically closed one door of a room on the western side which opened in the courtyard. One gate on the southern side also appears to have been closed and some other conversion has been made to provide an almirah. The structure in the building under lease with the respondent has been so changed as to render it beyond recognition. It is impossible to hold that the acts of the respondent have not materially impaired the utility. The word "utility" has been used in clause (ill) of subsection (2) of section 13 in its general sense for usefulness and profitableness. Although the present use of the building for the purpose of a clinic might be vary useful for a particular tenant who is a practicing doctor, its general usefulness, i,e,, utility for all others including owners has been materially impaired. This supposition finds support in this case from the fact that in the proposed reconstruction plan, almost all structures constructed by the respondent are intended to be entirely removed by the owner. The learned lower appellate Court and the learned Rent Controller did not pay any attention to the composite site plan providing comparative study nor the admitted facts with regard to the changes effected by the doctor. They have not only misread the evidence in this behalf bat have also ignored material parts thereof therefore, reverse the finding on Issue No, 3 and hold that the respondent, has materially impaired the utility of the building and is thus liable to bell evicted on this ground alone.
6. The next question to be determined is whether the appellant did not require the building for reconstruction reasonably and in good faith and as to whether necessary sanction for reconstruction had been obtained. Learned counsel for the respondent raised a legal objection that the original plan for reconstruction bearing the original sanction of the authorities produced from the appellant side has not been proved in accordance with law. He has relied on Mian Taj Din v. Messrs Royal Engineering Works (1). No objection was raised before the learned Controller nor before the learned lower appellate Court with regard to the proof of admissibility of the sanctioned plan Exhibited as P. w. The appellant's attorney, namely, horn son is himself an employee of the Municipal Committee. He produced and proved the original plan for reconstruction Exh, P.
3. Mention of this very plan was made in para. 4 of the eviction application. The fact that the plan had been sanctioned was not disputed in the corresponding pars. 4 of the written statement- instead, plea was taken that the plan in question for reconstruction was only a contrivance for getting the building vacated from the respondent. Apart from this admission in the written statement, it cannot be ignored that no objection was raised with regard to the admissibility/proof of the plan at any other stage. Their Lordships of the Supreme Court were pleased to hold in amid Iqbal v. Rana Muzaffar Khan (2) that the Evidence Act in terms does not apply to the proceedings under the Rent Restriction Ordinance. In view of what is stated above, it is not necessary to discuss the ruling in the case of Mian TaJ Din cited by the learned counsel. However, it is observed in para. 6 thereof at page 721 of the report that "the plan sanctioned by the Municipal Committee/Corporation is also a public document since it is a record under the Municipal Administration Ordinance, as is clear from section 77 (5) thereof, which reads as follows : "A Municipal Committee may sanction a site plan or a building plan subject to such modifications or terms as may be specified in the order of sanction"
' The sanction of site or building plan has, therefore, to be retained by the Municipal Committee as a matter of record for future reference and for taking action under section 78, if necessary. A copy of this document is always available from the Municipal Corporation on payment of the (1) PLD 1967 Lah. 718 (2) 1976 SCMR 229 requisite fee". In the present case, it appears that one original might have been retained by the Municipal Committee but another original plan which bears the endorsement of sanction and original signatures thereon of the sanctioning authority (Exh. P. 3) was produced by the appellant. Thus, Exh. P. 3 would be covered by the above-quoted observations. That being so, according to section 127 of the Municipal Administration Ordinance read with Article 96 of the Basic Democracies Order, Exh. P. 3 being an authentic document and record of the budding plan sanctioned by the Municipal Committee shall be deemed to be a public document and that it shall be deemed to be genuine unless contrary is proved. In the light of what has been discussed above, there is no force in the technical objection raised by the learned counsel for the respondent.
7. The learned lower appellate Court rightly noticed that the learned Controller did not consider "the implication of site plan and also the penal clause" provided in subsection (5) of section 13 of the Ordinance. The learned lower appellate Court was also right in noticing the observations of their Lordships of the Supreme Court in Messrs Amir Din Allah Ditto v. Seth Adamji Abdullah and others (1). 1, however, do not agree with the learned lower appellate Court's reasoning that it was incumbent upon the appellant "to prove that sbe wanted to reconstruct the building after demolishing the same". Learned counsel for the respondent has also taken the same position that unless the intention is to demolish the entire building in question, the law contained in section 13 (2)
(ri) would not be satisfied. The provision relied upon reads as follows : "13.-(2) (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 building on rent with the respondent is in the grand-floor portion of a bigger building having first and second floors. There is considerable accommodation on the first floor. On the second floor, there are two rooms and a projection. It cannot be denied that if the building in question, i,e,, the ground-floor is demolished in its entirety, the first and the second floors would also, in the said process, be demolished. The question arises whether the law required that the reconstruction must always, in every case, be of the entire building after its entire demolition or it depends upon the circumstances of the case whether the demolition or reconstruction of one or more portions of the building might be enough.
8. Learned counsel for the appellant, to start with, also thought that reconstruction would mean the demolition and reconstruction of the building in its entirety, but after seeking time for further study he relying on (Velivela ) Vekanta Sivayya v. Emperor (2) and Percy E. Cadle & Co. Ltd. v. Jacmarch Properties, Ltd. (3), contended that there is need only for substantial reconstruction and not for entire demolition and reconstruction. In fact, he took out this Case-law from Prem's Judicial Dictionary (1964) Vol. IV and Aiyer's Manual of Law Terms and Phrases (1974) 7th Edition. On the other (1) 1969 SCMR 131 (2) AIR 1927 Mad. 442 (3) (1957) All E R 148 hand, learned counsel for the respondent cited Muhammad Gul v. K. B. Mian Feroze Shah (1), Haft Ghulam Hussain and another v.
Muhammad Rafiq and others (2), Syed Shin Gul v. Haft Abdul Majid (3), Manzur Ahmad and 8 others v. Muhammad Hanif and 2 others (4) and Hassan and others v. Fancy Foundation (3) to contend that the word "reconstruction" would mean "rebuild" and would imply the entire demolition and reconstruction of the rented building.
9. Excepting one, i,e,, the case of Manzur Ahmad, none of the rulings cited from the respondent side has any bearing on the controversy involved in this case. The question as to what is the meaning and connotation of "requirement" for "reconstruction" of a "building" was not considered therein. As the important questions discussed in the oases of Muhammad Gul, Baji Ghulam Hussain, Syed Shin Gul and Hassan and others were other than the afore noted controversy, therefore, these words as used in clause (vi) of subsection (2) of section 13 were reproduced in the rulings as they exist in the statute. An expression used in the case of Muhammad Gul, namely that an old shop was being demolished and new shops were being built and thus, the shop could not be "constructed unless it is demolished" has to be read in the context of the language used in unamended clause (vi) as also the other observation in the ruling. It is not only reconstruction but also replacement of building or erection of other buildings, which were kept in view in the said case. The Supreme Court ruling in the case of Hassan and others is mainly on the point of the effect of the amendment in clause (vi). Both the unamended and amended clauses were reproduced in the judgment for the purpose of deciding the main question regarding retrospectivity. The observations with regard to demolition of the existing premises and reconstruction of multi-storeyed building were in other context and not for the purpose of laying down the scope of these words. Same comment would apply to the two Karachi and Quetta rulings. The use of another expression "new building" after demolition of the old one in the Quetta case is also in the context of the language used in the unamended clause (vi) as it applied in that case, and is of no help to the respondent in this case.
10. Although the ruling in the Lahore case of Manzur Ahmad also relates to the unamended clause
(vi) which, as would be demonstrated, is materially different from the amended clause, for the purpose of controversy involved in this case ; yet the discussion on the principles relating to divisibility of tenancy, definition of the word "building" and the scope of the word "reconstruction" is, as would be presently shown, of considerable importance and relevance in the present case. It is necessary to reproduce the unamended clause (vi) and compare it with the amended clause : "Section 13
(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- {{TABLE}} (prior to amendment) (as amended)
(vi) the landlord intends to demolish the building for constructing a (vi) the building or rented land is reasonably and in good faith
(1) PLD 1964 Pesh. 11 (2) PLD 1965 Kar. 466
(3) PLD 1968 Quetta 45 (4) PLD 1970 Lab. 391
(5) L D 1975 SC 1 {{TABLE}} ' A new building on the same site and has already obtained the necessary sanction for the said construction from the Improvement Trust or the Municipal Corporation, Municipality, Municipal Committee or Notified Area Committee of the area where such building is situated required by the landlord for 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 pat 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 : ' It is also essential to reproduce the definition of the word "building" in section 2 (a). It reads- "(a)'building' means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture let there wit, but does not include a room in a "semi", hotel, hostel or boarding house ;"
11. It would be seen that the expression "for constructing a new building" used in the unamended clause (W) has not been repealed in the amended clause. Instead, the word "reconstruction" has been used in this context and the words "demolish" and "new" have notably been omitted. This leads to the inference that the expressions used in the unamended clause were liable to be interpreted as if ejectment could not take place under this clause (1) unless the building was to be completely demolished without leaving its trace ; end further, (11) till a new building was to be constructed on the same site. This, it appears, was not the intention of the Legislature. Therefore, the law was amended so as to provide a more reasonable and elastic basis for eviction on the ground in clause fed). Instead of demolition of old building and construction of a new building, only the word "reconstruction"-as it was generally understood to include the whole or part and was also understood in the English law (which was, by and large, followed in enacting several provisions of our urban tenancy laws) was introduced. This supposition gets strengthened from another change also. In the unamended clause, the condition of demolition and construction of a new building was restricted to the interest of the landlord and the satisfaction of the provision was entirely left to the landlord's "intention". It was not necessary for the Controller to give objective findings with regard to reasonableness or good faith on the part of the landlord. In the amended clause however, while expanding the scope of the provision to more situations regarding reconstruction, the Controller was given power to scrutinise the bona fides and reasonableness of the landlord's claim, It is also important to note that while under the unamended clause, the intention of the landlord was all important to be considered, in the amended clause the intention alone was not considered enough. It was changed into "requirement" in which, in addition to the intention and desire of the landlord, the Controller is necessarily to give objective judgment on the question of the requirement being bona fide and reasonable.
12. As a corollary of the foregoing discussion, it is necessary to interpret the word "required" in its proper context, as used in the amended clause. Two shades of its meaning have to be properly explored : One, requirement in the sense of the need of the landlord for reconstruction. This need might develop for improvement/change in the property for structural purposes and/or for modernization. It might be motivated to increase the utility and value of the property and It can also be for the purpose of better utilisation of investment. This aspect of requirement is referable exclusively to the need of the landlord vis-a-vis the building itself. "But the other aspect relates to the tenant occupying the building. Cases can be visualised where a lendlord's requirement might be to reconstruct the building but it might not be necessary for him, or he may net desire, to evict the tenant for this purpose i,e,, reconstruction. In such a case, although there might be a need for reconstruction yet it would not be the requirement of the landlord to evict the tenant. Thus, in this second sense, the word "required" would convey a meaning more akin to a demand from or request to the tenant to vacate so as to provide facility to the landlord to -reconstruct the building.
If looked at from this angle, the word "reconstruction" would have to be interpreted in such a manner as to include either the reconstruction of the entire building or a substantial part thereof which would also include remodeling so as to impel the landlord to demand from the tenant to vacate the building for the said purpose. In this context, the reasonableness of the landlord qua the demand vis-a-vis the physical extent of reconstruction would have to be gone into. If, objectively, it is not necessary for the landlord to require and obtain the building from the tenant for reconstruction, he would not be acting reasonably. It is in this contest that in some authorities it has been admitted that although the word "reconstruction", by itself, does not convey meaning of entire demolition and rebuilding of a new structure, it does necessarily envisage substantial reconstruction. This principle and procedure has been codified in England in section 30 (1) (f ) of Landlord and Tenant Act, 1954 (Halsbury's Statutes (2nd Edn.) 414). Under section 24 (1) of the said Act, a tenant can move an application for renewal of the tenancy but it can be opposed by a landlord by giving notice that "30 (1)(f ) on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that be could not reasonably do so without obtaining possession of the bolding". It is significant to note that the word "demolish" used in the afore quoted provision of the English statute was earlier used in the unamended clause (vi) of section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance but it has now been conspicuously omitted from the amended provision. As the word "reconstruction" was being left undefined so as to include all reasonable connotations of this word, it would have been unreasonable to include the word "demolish" and then not to use the other necessary words like 'substantial' or 'part' so as to signify the true sense. Read in this context, the word "reconstruction" would include several positions like "entire demolition and substantial reconstruction", "substantial demolition and part reconstruction" and other such situations warranting objectivity on the part of the landlord. Thus, it would be necessary for him to prove that he cannot "reasonably do so without obtaining possession of the holding". These English provisions cited above were commented upon in the case of Percy E. Cadle & Co., Ltd., already noticed (para. 8) above.. Ormerd, J. Agreeing with Denning and Hodson, 11., observed that "the word 'reconstruct' must mean a physical reconstruction of the premises. It must mean, I think, in the first place, a substantial interference with the structure of the premises and then a rebuilding, in probably a different form, of such part of the premises as has been demolished by reason of the interference with the structure". The learned Judges in the English case were, out of necessity, trying to give proper meaning to the word "demolish" so as to lay stress on 'reconstruction' in a substantial manner. In our statute, the words "demolish" and "new building" having been totally omitted, the word "reconstruction" would have to be given a pragmatic connotation and meaning in the context of the other two conditions in clause (v1), namely, reasonableness and good faith. Thus, it would depend upon the facts and circumstances of each case whether the reconstruction relied upon by a landlord is such for which the tenant must be required to vacate the premises. While judging the facts of each case, all aspects of requirement vis-a-vis the landlord's needs including then relating to the structure, the mechanism, of reconstruction, its extent and scope and his need for obtaining possession of the premises for reconstruction would have to be taken into account ; and it would not be necessary in every case to insist upon the landlord to prove that he would demolish the entire building and would rebuild a new one. There is no statutory warrant for such an approach to be adopted by the Controller when acting under clause (vi).
13. Words like "reconstruction" and "re-erection" have been defined in some of the laws relating to Municipal Administration so as to mean partial/substantial rebuilding, for example, see section 3
(16) of the Municipal Administration Ordinance, 1960 and section 3 (24) of the Madras District Municipal Act as interpreted in Venkata Sivayya's case (1). This would also show that it is not a universal rule that whenever the word "reconstruction" is G used, it must mean entire demolition and erection of new building.
14. It is in the context of the conclusions reached in the end of the paragraph twelve above that the definition of the word "building" in the statute has to be considered. Building means and would also include, as provided in the definition, "any building or part of a building". Leaving aside the question of entire building, the part referred to in the definition should be of such a building which has been "let for any purpose". If the definition of the word "building" is, subject of course to the context, read into clause (vi), it would, for the purpose of this case relating to reconstruction, read- "the building or part of the building, let for any purpose is reasonably and in good faith required by the landlord for reconstruction ' Apart from the connotation of the word "reconstruction", as discussed; in the earlier part of this judgment, even on technical construction, if all part of the building is to be reconstructed, it would technically fall within' clause (vi). But in the light of the discussion on the scope of the word "reconstruction", it has to be held that the reconstruction should relate to a substantial part and the question whether or not it is substantial would depend upon the facts and circumstances of each case. For example, in a multi-storeyed building, the removal and reconstruction of two walls out (1)
AIR 1927 Mad. 442 of five in the ground-floor might amount to substantial reconstruction and, in another case of a single-storeyed building, removal and reconstruction of three walls out of five may not be a substantial reconstruction. Similarly, in one case it might net be necessary for the landlord to require the tenant to vacate the premises for the purpose of reconstruction and in another, it might not be convenient-including expense-wise-for him to reconstruct without obtaining physical possession of the entire promises.
15. Although the question does not arise here and it is not necessary to finally determine it, it appears that the partial eviction from some parts of the building is not visualised by the statute.
Either the tenant has to be evicted for the purpose of reconstruction or the landlord's application has to be dismissed. It is very important to note that it is in this context that this clause relating to the requirement of a landlord for reconstruction has bet kept within the discretionary field of the Controller while he has been left with no choice in the case of another requirement of the landlord, namely for his own occupation and/or for the occupation of his children. Thee distinction is obvious. One major reason is relatable to the scope oil reconstruction and need for that purpose.
16. The discussion in the case of Manzur Ahmad on some of the above analysed questions including the divisibility or otherwise of tenancy, the scope and connotation of the words "'reconstruction" and "building" supports the conclusions arrived at in the foregoing pares. Of this judgment. The following observations in that ruling relied upon by the learned counsel for the respondent in this case would however, not, he its entirety, apply to the interpretation of clause (vi) as it stands now (amended).
"A Rent Controller is enjoined by law to see whether (I) this is a case of demolition and (ii) construction of a new building and WO on the same site. If after attending to these facts, a situation crops up where there is to be no total demolition or no new building; and the same site, which is, occupied by previous building, is not wholly to be disturbed, then the Authority under the law will be justified in confining ejectment to such portions which are covered by the provisions of the Statute and cannot extend their jurisdiction further."
' As already discussed, the expressions "demolish" and "new building" were intentionally omitted from the amended clause for certain discernible purposes outlined above. I, therefore, with respect, do not agree that the Controller would be required to apply these conditions even to a case under the amended clause. My respectful disagreement is also conditioned by the fact that from the statement of acts of the cited ruling, it is clear that that case related to the period prior to the amendment whereby clauses (vi) was substituted in 1965.
17. In the present case, the perusal of the site plan for reconstruction shows that in about 3/4th of the constructed portion (leaving aside the courtyard) of the "building" in occupation of the respondent, the main supporting walls are to be removed. Not only this, even in the first floor which at the time of the letting out, it is stated, was in occupation of the landlady, the main inner walls are to be demolished and in their place substantial reconstruction involving construction of other wall all (other than the demolished walls) is to be undertaken. The removal of the walls in the ground floor (building in occupation of the respondent) as also one wall in the first floor is to be substituted by cross R. C. C. Beams which, as the plan shows, must be so big and substantial as to support the walls and structure on the other floors. One wall in the ground floor which would be demolished would not be substituted by beam but by a new wall with, as the plan of the foundation shows, considerable change in the foundation ; which, as it is again apparent from the plan, runs several feet down the floor level. All structures which were built by the respondent have been shown as removed from the proposed reconstruction plan. It is necessary to observe that the reconstruction of the ground floor (building in occupation of the respondent) is linked with the reconstruction to be carried on the first floor which is in possession of the appellant. She cannot be prevented from reconstructing the first-floor ; but it cannot be done without making major substantial reconstruction (including R. C. C. Beams) in the ground floor. As has already been noted, the parties are inimical to each other for a long time. They are involved in serious criminal litigation inter se.
More than one criminal cases in which they are involved have come to the High Court, It is stated that one case against young daughters of appellant has been quashed, Neither qua structure of the building nor qua relationship it would be possible for the landlady to reconstruct it as proposed in the site plan without obtaining possession of the bailing from the respondent. Both the learned Rent Controller as also the learned lower appellate Court not only misread the evidence but also misinterpreted section 13 (2) (vi) of the Ordinance. The circumstances do not warrant depriving the landlady of the benefits which she can avail of under the law, simply because the respondent is a doctor and has established a clinic. On the other band, the appellant is a widow-landlady and it cannot be said that she has no responsibilities, like those the respondent has towards his patients.
Otherwise too, the equities do not go in favour of the respondent nor the relationship between the parties is such that despite the appellant having satisfied the provisions contained in clause (vi), the discretion should be exercised in not directing the eviction of the respondent.
18. The bona fides of the appellant regarding reconstruction are in no doubt. The proposed site plan, as analysed above, shows that a big hall has to be provided in the ground floor (building in occupation of the respondent) and more accommodation is to be provided in the first floor by adding therein a store, a bath-room and a dressing room. The existing rooms are to be reconstructed in such a manner as to make provision for a drawing room. The argument on behalf of the respondent that the appellant merely wants to increase the rent and, therefore, there is lack of bona fides on her past, has no force. There is no reliable evidence in this behalf and it is pertinent to note that when the appellant's son appeared as her witness, he was not asked any question in this behalf. It is not out of place to mention that there is no finding of lack of good faith against the appellant, either. It is thus clear that not only that the appellant requires the building reasonably, but it is also in good faith.
19. In the light of the foregoing discussion, the findings in the impugned orders on Issue No, 4 are set aside and the same is decided in favour of the appellant.
20. The evidence on the question of personal requirement of the appellant is contained mainly in the deposition of her son. He is an employee-Clerk in the Municipal Committee. It is possible to visualise that keeping in view the prospects in the trade and business of his father (metal works), he might give up the job and prefer doing the same business. But it would be premature to hold that he is determined to give up the job. It is also possible to visualise that he might do the business without giving up the job and by employing technicians and thus, doing part-time business in addition to performing his duties as a municipal employee. But all this is in the realm of only possibilities. The details in this behalf have not been furnished from the appellant side. I am conscious of the following observations by their Lordships of the Supreme Court in Dr. A. R. Khan V.
Muhammad Ishaque (1) ; "The learned counsel for the appellant has forcefully argued that the question whether or not a premises is needed by the landlord far his own bona fide requirement or that of his male child is purely one of fact on which a finding bad been rendered in his client's favour by the learned District Judge, which should not have been interfered with in second appeal by the High Court. There is no doubt that in the last analysis the question becomes one of fact whether a landlord does or does not require a certain premises for his bona fide requirement, as contemplated by the Ordinance, although the intention behind the move is purely subjective, which can only be inferred from the circumstances, which must be alleged and proved by the landlord by producing evidence in manifestation of that intention, In the present case, however, the position is that the finding on this point of fact made by the Rent Controller was in favour of the respondent, which has been reversed by the learned District Judge purely on conjectural grounds. The learned District Judge, therefore, committed a legal error in reaching his conclusions on pure conjectures and surmises, which fully justified interference by the High Court in second appeal. The learned District Judge was wrongly influenced by the circumstance that the respondent had not thought of putting his son earlier in business although he was out of job for three years. It was for the landlord to decide as to the opportune time for putting his son in business depending on his resources and opportunities.
Again, the opinion of the learned District Judge that the respondent should have put his son in business in Rawalpindi, which was a more prosperous town from the business pole t of view than Murree, is merely fanciful. It was wrong on the part of the learned District Judge to assume the role of a gratuitous adviser as to which place was more suitable for the son of the respondent to set up his business."
(Underlining is mine)
But the circumstances earlier noted, make this case distinguishable. The material placed on the record is not enough to give a definite finding that the appellant requires the building in question in good faith for her son's use. In any case, the demand appears to be premature. If and when the son gives up the job or is able to satisfy that he would give up the job ; rind that, in any case, he would be able (and otherwise be within his right) to do the business when performing duties as a municipal employee, it would then be possible for the appellant to seek eviction on this ground also. The assumption with regard to this ground being premature, finds support from the fact that even when the application for eviction was originally drafted, this ground was not taken therein.
The application then contained eight paragraphs, Para. 4 related to reconstruction. Paras. 5, 6, 7 and 8 were formal paragraphs. In other words, the assertions with regard to substantial grounds relating to eviction ended with para.
4. At some later stage, new para. 5 of one line was added between original paras. 4 and 5 by overwriting 6 en figure 5 of para. 5 and changing the remaining paras, 6, 7 and 8 into 7, 8.
(1) 1972 SCMR 437 [Here in italics] ' And 9. I would not go to the extent of holding that a pleading cannot be corrected before signing and submission in Court. But the aforenoted circumstance would indicate that at least, at the time of the original draft, the appellant was not seeking eviction on the ground of requirement of her son. For all the above reasons, the findings on issue No, 5 are affirmed.
21. As a result of the decision on the issues relating to damage to the property and requirement for reconstruction, this appeal is allowed. The impugned orders are set aside. The respondent is ordered to put the appellant in possession of the building in question. He is allowed two months' time to vacate the same. There shall be no order as to costs.