1988 PLP C (CLC)

This first appeal under section 24 of Act XI of 1963 by the tenant has been filed against the order of Rent Controller, dated 12‑10‑1987 directing his ejectment and ordering him to vacate the premises within 90 days. On 7‑2‑1985, Fayyaz Akbar applied to Rent Controller, Rawalpindi Cantonments under section 17 of the Cantonment Rent Restriction Act, 1963 seeking ejectment of the appellant from portion of the property part of 53‑A Haider Road, Rawalpindi Cantonment, marked 'yellow' in the attached plan, on the sole ground that it was required by him for its demolition and constructing a new building on same space in accordance with sanctioned plan, dated 14‑1‑1985. Appellant submitted his written defence and controverted the bona fides of respondent's intention to demolish and reconstruct a new building and stated that in view of earlier ejectment petitions and their results, not only that the requirement did not factually exist but it was neither reasonable nor bona fide. It was also averred in the preliminary objection that pleas of personal need for self use and reconstruction of the property were inconsistent and mutually destructive. In brief, substantial defence was about denial of the plea of reconstruction and its bona fides. Respondent filed replication and reiterated his averments already made in the ejectment petition. Pleadings gave rise to two issues. These read:‑ (a) Whether the petitioner is estopped by filing the present petition due to the existence of alleged agreement? O.P.R. (b) Whether the petitioner needs the property for reconstruction? O.P.P. On 7‑11‑1985, it was stated on behalf of the appellant that since he had already been ordered to vacate the premises on account of personal requirement by the Rent Controller, present ejectment application could not proceed. In reply, respondent took up the stand that appeal against the aforenoted ejectment order was sub-justice before the High Court, therefore, ejectment petition may be put off for a while to await the decision of the High Court. On this statement, ejectment application was consigned to record room to await the decision of the High Court. Order passed by Rent Controller in vernacular, reads:‑ On 24‑11‑1985, respondent filed a miscellaneous application for revival of ejectment petition. It was stated that as on appeal to the High Court, ejectment order passed on the basis of personal requirement of the respondent was set aside, ejectment case be restored to file for taking proceedings on merits. Application for revival was opposed by the appellant. However, by order, dated 12‑3‑1986, ejectment petition was restored. Since some argument was raised as to the powers of Rent Controller to review and pass the revival order, I think it is necessary to make reference to this order. It reads:‑ "This order is meant to dispose of the ejectment petition, dated 7‑2‑1985, alongwith application, dated 24‑11‑1985 filed by Mr. Fayyaz Akbar for restoration of above quoted ejectment petition filed against Messrs Delite House Limited on ground of reconstruction. The petitioner had filed another application against the respondent on ground of bona fide personal use which was disposed of vide order, dated 26‑5‑1985. The respondent had gone into appeal in the High Court against the above order which was set aside and now the petitioner has again come in appeal against the order of the High Court. Without prejudice to the rights of the applicant which he may obtain as a result of the fate of the appeal filed by him, he is entitled to get relief on merits on the separate ground of reconstruction mentioned in the ejectment application, dated 7‑2‑1985. The application, dated 24‑11‑1985 for restoration is, therefore, accepted'. Thereafter, ejectment application proceeded to its decision on merits and was also allowed‑ to be amended to elucidate and clarify the portion of the property sought to be got vacated. In support of issues, respondent appeared and made his own statement on oath to establish his requirement for reconstruction and put in sanctioned plan EXh.P.l and resolution of the Cantonment Board Exh.P.2, in evidence. In the oral statement of Saleem Rashid, appellant gave rebuttal. On consideration of the material available on file, Rent Controller decided issue No.l against the appellant, issue No.2 in favour of the respondent and on conclusions reached, gave order of ejectment. Ch. Hamid‑ud‑Din, Advocate for the appellant submits; that Rent Controller being a tribunal of limited jurisdiction had neither inherent powers nor powers of review to revive proceedings finally put an end to and consigned to record room, that sanction obtained from the Cantonment Board had already lapsed and section 17(2)(vi) of Rent Act 1963 presupposed a valid subsisting plan; that there was some ambiguity about the area shown in possession of the appellant required to be vacated for reconstruction; that earlier ejectment petitions and their results militated against the bona fides of the appellant and lastly the expressed requirement was not reasonable and was also not grounded in good faith. In support, learned counsel relied on Syed Ali Iqtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore P L D 1964 (W.P.) Lah. 274, The State v. Zia‑ur‑Rahman and others P L D 1973 SC 49, Muzaffar Ali v. Muhammad Shafi P L D 1981 SC

94. Sajjad Ahmad Lone, Advocate on behalf of the respondent who himself is a practising Advocate urged that points raised in support of the appeal had no merits and submitted that order putting of the ejectment case till the decision off the High Court was not a final order and did not require for its resurrection, powers of review. It was merely an interlocutory order of a procedural nature which the Rent Controller though a tribunal of limited jurisdiction set up to decide disputes of a specified nature, had powers to make. In this behalf, learned counsel referred to Mst. Allah Rakhi v. Mst. Raj Bibi and others P L D 1957 (W.P.) Lah. 70, Muhammad Aslam Mirza v. Mst. Khurshid Begum P L D 1972 Lah.

603. In regard to the second argument relating to the sanction having already lapsed by efflux of time, Mr. Lone relied on Sanaullah and others v. Kamal Din, 1981 S C M R 781 and argued that this circumstance was wholly inconsequential. Further it was argued that decisions or results of the previous applications neither barred the present application nor affected its decision on merits. Reliance was placed upon Allah Rakha v. Mohammad Shafi 1978 S CM R

437. As for ambiguity pointed out by Ch. Hamid‑ud‑Din, Advocate learned counsel for the respondent argued that ejectment petition and the plan annexed thereto sufficiently identified the property in question. On merits, it was urged that front portion of building 53‑A consisting of four shops, one of which marked in yellow lines was in occupation of the appellant was, in totality, required for demolition to raise a new building consisting of five shops. It was pointed out that ejectment petitions in respect of three shops located in the front portion of the building have already succeeded and the plea of respondent upheld uptil Supreme Court of Pakistan. See C.P.L.A. 301‑Ft of 1987, C.P.L.A. 302‑R of 1987, C . P. L. A . 303‑R of 1987, decided on 2‑3‑1988. After hearing learned counsel for the parties at length and scrutiny of original records, submissions on behalf of the appellant are found to have no substance. It is not denied that review like appeal and revision is a substantive remedy and unless conferred expressly cannot be assumed to exist. However, Rent Controller did not require review powers for ordering revival of proceeding postponed for a temporary period and limited purpose that is t await the decision of the High Court on an appeal filed against the ejectment order passed in favour of the respondent. Postponement o the rent case and for that purpose even consigning it to record room was not a final decision made on the ejectment case and Rent Controller who had inherent jurisdiction to regulate his own procedure had powers to order revival of the proceedings. Provisions of C.P.C. do not apply to Rent Controller except to the extent indicated in section 27(2) of the Cantonments Rent Restriction Act, 1963, but beneficiate provisions of the Code can be pressed in aid to regulate procedure before him. Basic rule that where an Act confers jurisdiction, it also impliedly gives powers to do all such acts or employ such means which are essential to its execution based on the doctrine of 'implied powers' which are also available to the Rent Controller. Rent proceedings were ordered to be stayed on the objection of the appellant, though there was no legal compulsion for adopting such a course. Decisions reported as p L D 1957 Lah. 70, P L D 1972 Lah. 603 are in point and support the above view. Therefore, there is not much real force in the contention of Ch. Hamid‑ud‑Din, Advocate saying that Rent Controller had no power to revive the proceedings. An authority which has the power to make an order has also a power to modify it. In regard to the sanction having lapsed, reference to the judgment of the Supreme Court reported as 1981 SCMR 782 shall suffice. It provided an effective reply to the argument of Ch. Flamid‑ud‑Din. Sanction Exh.p.l was valid for one year. This period, in the delay caused has already run out. As observed by their Lordships of Supreme Court, 'It is not for the landlord to get sanction renewed every year during the pendency of proceedings.' Rent cases every one knows take more than expected time in passing through' various stages in Courts for reaching a final decision. Renewal is a',B mere formality. If full effect is given to the argument of learne 'd counsel, it shall work grave injustice which cannot be the purpose of law. This argument, therefore, carries no weight and is not acceptable. In regard to the third contention that there was some ambiguity in the description of the property sought to be vacated, I find no force in it also. Portion in possession of the appellant was marked in 'yellow' lines in the plan annexed. In the amended ejectment application, its area in square feet was also given. This description was sufficient to identify the property in dispute between the parties. I shall now advert to the earlier ejectment applications filed by respondents, their results and legal effect on the present application. First ejectment application was filed on 7‑4‑1979 on the plea of reconstruction. On 7‑4‑1980, parties came to a settlement out of Court in result whereof rent was enhanced to Rs.1,

450. It is stated that it was agreed then that no further enhancement of rent shall take place for a period of three years. Second application for ejectment of the appellant, on account of personal use, was filed against him on 29‑6‑1982. It was dismissed on 29‑10‑1983 by Rent Controller. Appeal against this order was dismissed by Additional District Judge on 11‑2‑1984. These orders were assailed in writ petition (W.P. 114 of 1984) before the High Court. Writ petition was withdrawn on 10‑7‑1984. Order of the High Court permitting withdrawal reads: 'Learned counsel states that he would like to bring a fresh application for ejectment on a new ground that the petitioner being hard of hearing has not been able to establish himself as a Lawyer in the legal profession and that he needed the shop in dispute for personal need to run some business. In the ejectment petition out of which the present writ arises, he had pleaded that he required the shop for personal use without explaining his physical disability and inability to establish his legal profession. Obviously, if these two grounds could not be raised, so far in the present petition, there may be justification to raise them because both relate to question of fact. This is, of course, subject to all just exceptions. With these observations, the writ petition is dismissed as withdrawn'. This ended the matter so far as the High Court was concerned. After withdrawal of the writ petition, a third application, on ground of need for personal use of the shop in question was filed on 25‑4‑1984. It was accepted by Rent Controller and the appellant was directed to vacate and hand over possession to the respondent. Appeal filed against this decision was allowed by Ch. Amjad J., on 24‑11‑1985. On further appeal to the Supreme Court by the respondent, decision of the High Court in F.A.0 17 of 1985 was set aside and the case was remanded for its decision afresh on issue of personal requirement. Decision of the Supreme Court is, dated 14‑4‑1987 and no final decision so far has been made on the remanded case. Then came the 4th ejectment application subject‑matter of dispute in the present appeal. Considering the earlier moves and the results obtained, I do not 'think that any settlement in the past was an eternal bar for the respondent to seek ejectment on the ground of reconstruction of the property. Section 23 of the Cantonments Rent Restriction Act is also not a bar. From the previous applications and their results, it cannot be inferred that landlord was acting mala fide. Last comes the contention as to the reasonableness and bona fides of the respondent in seeking ejectment of‑ the appellant on the ground of reconstruction. Grounds for ejectment of a tenant are enumerated in section 17 0 the Cantonments Rent Restriction Act, 1963. If the landlord requires a building, residential or commercial for his own occupation or use, his requirement must be backed by 'good faith'. See section 17(4)1 (a)(i), 17(4)(b)(i). But when it comes to section 17(2)(vi), it only lays emphasis on 'intends to demolish the building for constructing a new building'. 'Intend' means to fix the mind upon; to design; to purpose; to mean. 'Intend' is defined in Webster's Dictionary as (1) to have in mind as something to be accomplished; to be intend upon; to mean; to purpose; to contemplate; often followed by an infinitive or a clause introduced by that; as, I intend to go; they intend that she shall remain. (2) To mean (something) to be or be used for; to design; destine; as, the cake was intended for the party. (3) To mean or take to mean; to signify. (4) In law, to construe or interpret legally. (5) To stretch; to strain; to extend; to distend. (6) To regard; to fix the mind on; to attend; to take care of'. Employment of different language may not be without a purpose. It was in this view of the language employed in the statute that their Lordships of the Supreme Court in Ali Akbar and others v. Syed Tanweerul Hassan and others 1986 S C M R 1042 observed 'On the plain reading of the provisions of section 17(2)(vi) of the Cantonments Rent Restriction Act, we find no warrant for this argument and on a first impression we are not satisfied that the tests of reasonableness and good faith are to be read into the said provision or applied to the cases thereunder'. However from the observations made at page 1044 of the judgment, question as to reasonableness or good faith was left open. To the similar effect were the observations in C.P.L.As. 301/R to 303/11 of 1987. 53‑A is an old building. It appears to have been constructed in pre‑partition days. Cantonments Rent Restriction Act like its counterpart applicable in urban areas does not control or arrest the improvement of the property by its owners. Therefore, respondent had every right to improve and develop his property so as to enhance its value and utility which in turn shall also add to it rental value. Obviously, the building of which the portion in occupation of appellant is a part, is a commercial building situated in Sadda area. From the sanctioned plan EXh.P.l, respondent proposes t construct five shops in place of existing four shops. Reconstructed building, without doubt, shall enhance its value substantially an rental income considerably. There is no reason to doubt the statement of the landlord made on oath. From his testimony, it manifestly appear that he has unequivocally made up his mind to go ahead with hi plans of reconstruction. Nothing has been brought on record t discredit his intentions. He has also the capacity to muster wherewithal required for reconstruction of the building. His intention, therefore, is clearly grounded in good faith and has also the full element o reasonableness in it. In respect of three shops, he has already succeeded to get ejectment orders on this very ground. In regard toy the present shop, different result cannot follow. On the plain language of the statute, if the landlord succeeds in proving that he 'intends' to demolish the building to construct a new one in its place and has obtained the necessary sanction from the competent Authority, he may not be asked to show that his intent lacked good faith or reasonableness.. Section 17(2)(vi) of Rent Act, 1963 as regards its language was identical with section 13(2)(vi) of the West Pakistan Urban Rent Restriction Act, 1959. Cantonments Rent Restriction Act as has been said above by me does not limit or restrict the right of the owner to develop his property and it is this right which the respondent seeks to exercise. Comparative requirement of the premises by the tenant and his inconvenience in this behalf are immaterial. Therefore, even if elements of good faith and reasonableness are to be read in the context of section 17(2)(vi), there is nothing to doubt the credentials of the respondent in regard to his good faith and his requirement being reasonable. For the reasons given above, contentions of the appellant d not appeal to me and having regard to the language of the statute and the evidence led in support of the plea, I do not see any force in the appeal. Accordingly, it fails and is dismissed. No costs. Appellant is allowed four months to vacate and hand over possession subject to payment of agreed monthly rent in time. A.A./D‑25/L Appeal dismissed.