' SYED DEEDAR HUSSAIN SHAH, J.---The abovementioned petitions for leave to appeal have been filed against the judgment of the High Court Sindh, Karachi, dated 15-12-2000, passed in F.R.As.
Nos.748 to 760, 764 to 768, 772 to 777, 783 to 785 and 811 of 1983, As the facts as well as the points of law involved are same, therefore, we intend to dispose of the petitions by this common judgment.
2. The facts, in brief, are that the respondents/landlord purchased a plot of land with structure thereon. The petitioners were occupants of different portions of this structure and they became tenants of the respondents by operation of law. The respondents/landlord filed separate rent applications before the Rent Controller for eviction of the petitioners mainly on the ground that the respondents/landlord desired to demolish the existing structure and to re-construct modern double storeyed building, for which building plan was approved by the competent authority. In all the sent applications, the Senior Civil Judge/Rent Controller found that the landlord required the premises in good faith for reconstruction. He, accordingly, accepted all the rent applications on 29- 8-1983, directing the petitioners to vacate the premises in dispute. Against the aforesaid eviction order, petitioners filed separate appeals in the High Court of Sindh, Karachi, which were dismissed vide impugned judgment dated 15-12-2000. Hence these petitions.
4. Mr. R.F. Virjee, Advocate Supreme Court learned counsel for petitioner in C.P. No,127-K of 2001 vehemently urged that the impugned judgment suffers from a serious defect of non-consideration of relevant evidence pointing out mala fides of the respondent. He further submitted that as a matter of fact necessary requirement of satisfaction of the Rent Controller as well as the High Court was not established by adequate evidence on record. Learned counsel seriously assailed the finding of the Courts below on the issue of bona fide requirement of the commercial premises for reconstruction and contended that the respondent being builder/developer and a construction company, had earlier obtained ejectment of tenants from various buildings and sold out such properties during pendency of appeal before the High Court. He relied upon Attomal v. Allah Bux (PLD 1985 Karachi 650), Abdul Ghaffar v. Gulrez Pasha (1989 CLC 260, Karachi), A.G. Securities v.
Vaughan and others (Pakistan Supreme Court Cases, 756, at p.767) and Bashir Hussain v.
Muhammad Saeed (PLJ 1977 Lahore 158).
5. On their part Messrs Abdul Latif A. Shakoor, and Abdul Aziz Khan, learned counsel for the petitioners in C.P. Nos.167-K and 168-K of 2001 submitted that the respondent had no locus standi to maintain eviction proceedings against the petitioners within the purview of the Sindh Rented Premises Ordinance, 1979 (hereinafter called the Ordinance, 1979). Learned counsel made a grievance of the fact that the provisions .Of sections 15(2)(vi) and 15(3) of the Ordinance, 1979 as well as section 13(5-B) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance, 1959), were misinterpreted and wrongly applied in the case in hand. Lastly both the learned counsel emphasised that the ejectment cases were filed under section 13(2)(vi) of the Ordinance, 1959, therefore, it was incumbent upon the respondent to execute an undertaking that the petitioners shall be re-inducted in the premises after reconstruction of the building.
6. Mr. M.G. Dastgir, learned counsel for the petitioner in C.P. No,128-K of 2001, inter alia, contended that the learned High Court has failed to appreciate that in view of section 13(2)(vi) of the Ordinance, 1959, the burden was on the respondent No,1/landlord to prove that the premises were required in good faith, but he failed to discharge the said burden; that the two Courts below have failed to consider that in the proposed approved plan there was no provision for a petrol pump; that the area of petrol pump was leased out to the petitioner, who has installed petrol pump with large investments as dealer of respondent No,2; that respondent No,1 wants to demolish the above construction without making any provision for a petroleum site on the disputed plot; that the claim of respondent No,1 was mala fide; and that respondent No,1 does not require the premises in occupation of the petitioners in good faith for a double storeyed building. In support of his contentions he relied on Hashwani Sales and Services Limited v. Karachi Building Control Authority and 15 others (PLD 1986 Karachi 393), Mst. Akhtar khan Begum and 4 others v. Muhammad Azam Khan (PLD 1983 SC 1), Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others (PLD 1993 SC 210).
7. Mr. Naraindas C. Motiani, learned counsel for the petitioner in C.Ps. Nos.155 to 166-K of 2001, inter alia, contended that the petitioners were not heard as provided under section 21 of the Sindh Rented Premises Ordinance, 1979; that the eviction of the petitioner cannot be ordered merely on the whims of the landlord; and that the learned Rent Controller could not order eviction on the ground of reconstruction without considering the facts and circumstances of the case. Learned counsel has relied on K.B.C. Authority v. Hashwani Sales and Services Limited (PLD 1993 SC 210), Abdul Aziz v. Muhammad Ashraf (PLD 1993 Karachi 304) and Matloob v. Mst. Saeeda Khatoon (1988 SCMR 1575).
8. On the other hand, Messrs Zafar Hadi Shah and Rasheed A. Rizvi, learned counsel for the respondents, inter alia, contended that the learned Rent Controller as well as the learned High Court had considered the entire evidence in its proper perspective; that the respondents through reliable evidence had proved that they intended to reconstruct the building, plan whereof was duly approved by the competent authority; and that the evidence of the respondents with regard to the re-construction of the building in good faith had not been shaken. Learned counsel supported, the impugned judgment and placed reliance on Abdul Ghaffar-Abdul Rehman v. Asghar Ali (PLD 1998 SC 363).
8. Adverting to the submissions advanced" by Mr. R.F. Virjee, Advocate Supreme Court we are of the view, that the respondents being owner and landlord of the demised premises could not be deprived of their right and interest to use their property in a manner more suited to their requirements. No unreasonable restriction can be placed on the exercise of their right which would offend the fundamental rights guaranteed under Article 23 of the Constitution. As regards the argument that the provisions of Ordinances, 1959 and 1979 were misinterpreted, learned counsel was unable to reinforce his submissions by any specific piece of evidence. Likewise, insinuation against the respondent that it had sold out other properties after seeking ejectment orders from the Court, could not be substantiated by the material on record. It appears that an application for additional evidence was moved by this petitioner before the High Court, which was not acceded to for valid reasons and we do not find any illegality or serious legal infirmity in the exercise of discretion by the High Court.
9. Coming to the points raised by Mr. Abdul Latif A. Shakoor and Mr. Abdul Aziz Khan, learned counsel for the petitioners in C.P.Nos.167-K and 168-K of 2001, it may suffice to observe that learned Rent Controller as well as the learned High Court have recorded concurrent findings of fact after careful consideration of the evidence adduced by both the parties. Satisfaction of the Rent Controller is borne out by the material available on record and the findings of fact backed by satisfactory evidence recorded by him. Learned High Court while concurring with the view taken by the Court of first instance does not appear to have suffered from misreading or non-reading of evidence. The impugned judgment does not, in our view, suffer from misconstruction of law or violation of the statutory provisions governing the matter in issue. Indeed the petitioners were not in a position to displace the conclusions drawn by both the Courts that the requirement of the premises by the landlord was bona fide and reasonable, as no element of mala fide or dishonest motive could be spelled out from the evidence.
10. So far as the contention of Mr. M.G. Dastgir, learned counsel for the petitioner that his client is running a petrol pump and after reconstruction he will face difficulty in carrying on the said business, learned counsel for the respondents has drawn our attention to the evidence of J.R.
Alexender, Attorney of the respondents, which is at page 85 of the paper book, and reads as under:-- '. If the petrol pump is situated where I am pointed it then part of the area will be included in the covered area and part of it will remain open to sky according to the proposed plan."
11. We have considered the arguments of the learned counsel for the parties and minutely examined the evidence on the record as well as the above referred case-law. In our view, learned Rent Controller, after analysing the entire evidence allowed the rent applications of the respondents holding that the ,disputed premises are required by them bona tide and in good faith for reconstruction and they had obtained approval of the plan from the competent authority. So far as the apprehension of the petitioners that they will not be accommodated after reconstruction of building, it is pertinent to mention that Rent Controller has already held that the petitioners/tetiants shall be entitled to avail the benefits of section 13(5-B) of the Ordinance, 1959. The learned High Court also examined the contentions of the petitioners and after careful consideration dismissed their appeals for sound and cogent reasons. It may not be out of context to reproduce below the relevant paragraphs of the impugned judgment: "18. The landlord has a right to reconstruct his building which has been recognized under section 15, subsection (2), clause (vi) of the Sindh Rented Premises Ordinance and, as an expression of good faith, the landlord has produced building plan approved by the competent authority under the law for the time being in force to give sanction. Thus, there remains no impediment for allowing the landlord's plea for possession of the premises for reconstruction. The appeals lack legal support and substance for justification for interference with the impugned orders.
19. The Rent Controller has already held that the tenants shall be entitled to avail benefit of section 13(5-B) of the West Pakistan , Urban Rent Restriction Ordinance, 1959. This finding is in favour of the appellants. However, this has been challenged by the landlord in separate appeals and will be decided in these appeals."
12. The case-law relied upon by learned counsel for the petitioners, in our considered opinion, is not helpful to their case. Conversely citation referred to by the learned counsel for the respondents fully supports their case. In the said judgment entire case-law relating to right of a tenant to reoccupy the tenanted premises on re-construction of the building has been discussed by a Full Bench of this Court. It would he advantageous to reproduce the concluding paragraph of the judgment in Abdul Ghaffar-Abdul Rehman (supra), which reads as under:-- ' "We would, therefore, allow the above review petitions to the extent that the petitioners/tenants will have the right to apply in terms of subsection (5-B) of section 13 of the Ordinance to the Rent Controller at the stage mentioned hereinabove, namely, before the completion of the building and before its occupation by another person in terms of the above subsection and the Rem Controller concerned shall decide applications for the above request according to law."
13. During the course of arguments learned counsel for the respondents also undertook at the Bar that provisions of subsection (5-B) of section 13 of the Ordinance, 1959, shall be complied with in letter and spirit.
14. For the facts, circumstances, evidence and case-law referred to above, we are of the considered opinion that these petitions are without merit and substance, which are dismissed and leave is refused. However, the petitioners are allowed six (6) months' time to vacate the premises in question and hand over its vacant possession to the respondents, subject to payment of monthly rent regularly. In case of failure, the writ of possession shall be issued without notice, and with police aid, if necessary.