1980 PLP 516 (SCMR)

Muhammad Hussain Awan, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing : 22nd December, 1979. NASIM HASAN SHAH, J.‑The ejectment petition against the petitioner pas accepted on the ground that the rented premises were required for reconstruction. The petitioner's appeal from the order of the Rent Con troller was rejected as also his second appeal (S. A. O. 675/75).Hence, this petition for leave to appeal. The point raised in the petition is that as the respondent bad not obtained the necessary sanction for reconstruction from the Municipal authorities as required by section 13(2) (vi) of the Rent Restriction Ordi nance (hereinafter called the Ordinance) at the time of filing the ejectment application the same was premature. On the basis of Aziz Begum v. Guarantee Life and Employment Insurance P L D 1975 Lab. 594 it was submitted that the sanction obtained by the respondent on 25‑11‑1978 during the pendency of the ejectment application did not cure this defect. The High Court, on the other hand, following Muhammad Akbar avd Mehra/ Din v. Dr. Muhammad Rafique etc. 1980 S C M R 483 declined to accept this submission. In the last mentioned case, a plea for eviction based on reconstruction had not been taken in the ejectment application as originally instituted but was allowed to be raised through an order allowing the amendment. The question arose in that case whether such amendment at a belated stage could be allowed so as to also bring the case of the petitioner under sec tion 13(2) (vi) of the Ordinance. While the decision in this case to some degree supports the view taken by the High Court, we think that there, is another way of looking at the matter. The clauses of subsection (2) of section 13 which precede the one under examination, namely, clause (vi) thereof, stipulate grounds for eviction of the tenant on his having done something which the law did not permit or failure to do something which under the law he was enjoined to do. For example if a landlord asserts that the tenant had committed default in the payment of rent an application for ejectment would be maintainable at his instance. Again, where a tenant has bleu the premises, used the premises for a purpose different from that let, committed acts which impair the value and utility of the rented premises, then an ejectment application would lie against him. In all these cases the cause or ground should be available at the time of making the application because the act made cul pable is a completed act or which is already in existence. Similarly some thing which ought to have been done has indeed not been done. But the position under clause (vi) of subsection (2) of section 13 is some what different. This clause may be said to include two important ingredients. One, the rented premises is reasonably and in good faith required by the landlord for reconstruction. Two, the landlord has obtained the necessary sanction for the reconstruction. It will be seen that cause of action can arise to a landlord if he reasonably requires the rent ed premises in good faith for reconstruction. In other words, if he states this much in hi: ejectment application, his application would be maintainable and the Rent Controller cannot refuse to entertain it. As far as the second ingredient regarding sanction for reconstruction from the Municipal or such like authority is concerned, it would be a condition precedent for the success of ejectment application. But if there is a sanction and it is valid is a matter which will have to be seen from the evidence and argument stage respectively because the existence of sanction will be a matter of proof and its validity a question for argument. But to say that a condition precedent for the final favourable outcome of the landlord's application is also a condition precedent for the making of the application under clause; (vi) of subsection (2) of section 13 does not appear to be correct in the instant case a plea based on clause (vi) of subsection (2) of section 13 had admittedly been raised in the application but the sanction for reconstruction had not been obtained at the time of making the application. We feel that the plea having been raised by the respondent was sufficient to make his application maintainable. Admittedly, the necessary sanction had been obtained on 25‑I1‑1978 and brought on record in the respondent's evidence before the Rent Controller and formed the basis of his decision. In the absence of the Code of Civil Procedure being applic able to proceedings under the Rent Restriction Ordinance except to the extent mentioned in section 16 thereof, it cannot be said nor indeed it appears to be so that any prejudice has been caused to the petitioner. Once a plea of the kind in question had been raised in the ejectment appli cation, the tenant, petitioner herein, had adequate notice of it. On this score also the petition would be in order. The acceptance of the plae, however rested on the respondent establishing the factum of the sanction having been obtained. If he, indeed, has adduced evidence of it, we fail) to see how the petitioner can really grumble. The upshot is that no ground is made out for interference with the order of the High Court. This petition therefore fails and is dismissed hereby. The petitioner, however, is allowed four months time to vacate the premises provided he continues to pay the monthly rent. Petition dismissed.