2002 PLP 307 (CLC)

Tajuddin for Petitioner. Sh. Wazir Muhammad for Respondents. Date of hearing: 29th October, 2001. SHAHZAD AKBAR KHAN, J.‑‑‑ The acceptance of an eviction application on the grounds of construction of Plaza and default in payment of rent filed by respondents 1 and 2 against the petitioner and the dismissal of appeal of the petitioner Mst. Mahjabina, widow of Sarfraz drew her to file the instant Constitutional petition.

2. The epitome of facts relevant to the instant lis is that respondents 1 and 2 filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, hereinafter referred to as the Ordinance, for the eviction of petitioner from the house detail fully described in heading of the application. The application was based on two grounds, firstly, that the respondents want to construct a Plaza for which the disputed house is also required and secondly, that the petitioner has failed to pay rent since March, 1994 which also entails the consequences of eviction under the Ordinance. It was an added ground that the period of tenancy between the parties had expired. The application was resisted by the petitioner by filing replication and pleading of the parties generated 11 issues including the relief: A hotly contested trial ended in acceptance of the application by the learned Rent Controller on both the grounds i.e. ground of construction of Plaza and default in payment of rent. Appeal filed by the petitioner before the learned District Judge, Mardan also met the fate of dismissal. However, the findings of the learned Rent Controller on the point of default of payment of rent were reversed by the learned District Judge and the order of eviction was maintained only on the ground of construction of Plaza.

3. The learned counsel for the petitioner vehemently assailed the findings of both the lower Courts by urging that both the Courts below have fallen into error with regard to the appreciation of‑evidence on the question of requiring the disputed house by the respondents‑landlords for the construction of a Plaza. He contended that the petitioner does not dispute the factum of approval of the site plan or for that matter the obtaining of the necessary permission from the authority i.e. Mardan Development Authority for the construction of the proposed Plaza by the respondents. He, however, drew our attention to the site plan which is EXh.P.W.1/6 and urged that according to the approved site plan the Plaza is proposed to be constructed on Khasra Nos.1314/1 and 1315. This factum is apparent from Exh.P.W.l/6 and in support of his contention he further made reference to the statement of the witness of the respondents i.e. P.W.1 Saeedur Rehman, Draftsman of Mardan Development Authority, who produced, inter alia, the site plan and has recorded his statement in support of the record produced by him. This witness has categorically stated that the proposed site plan is situated in Khasra Nos.1314/1 and 1315. The learned counsel contended that the house under occupation of the petitioner is situated in Khasra No.2079 which is totally a different Khasra No. and is not included in the proposed site plan. In this view of the matter the bona fide requirement of the respondents of the disputed house is not established. Carrying forward his arguments he stated that since the house located in Khasra No.2079 is not covered by the site plan, therefore, the respondents had no cause of action at all against the petitioner.

4. On the contrary the learned counsel for the respondents contended that non‑mentioning of the Khasra No.2079 in the proposed site plan is not significant as the boundaries of the suit house are given in the application and there is no confusion regarding the identification of the suit house. He also argued that since the area in which the Plaza is to be constructed is now included in the Municipal area, therefore, the Khasra numbers have lost its importance. He further contended that the concurrent findings of the two Courts below cannot be interfered with while exercising the jurisdiction under Article 199 of the Constitution.

5. We have heard the rival arguments of both the learned counsel and have examined the record. We have noticed that the learned counsel for the respondents has not been able to controvert the point which was agitated by the learned counsel for the petitioner qua the non‑inclusion of Khasra No.2079 in the approved site plan. The question is not of the identification or the specified boundaries of the disputed house because the identity of the suit property is not the question involved. It‑is clear and uncontroverted fact that the suit house in possession of the petitioner is situated in Khasra No.2079, uncontrovertedly not included in' the site plan. The site plan indicates that the proposed Plaza is to be constructed over an area of 16350 sq. feet. The approved area is obviously covered by Khasra Nos.1314/1 and 1315. The respondents have to raise construction in accordance with the approved site plan and cannot go beyond the area of 16350 sq. feet. Thus, the house in dispute being outside the scope of the approved site plan cannot be said to be required for the construction of the. Plaza.

6. On the point of non‑inclusion of the suit house in the site plan it is also significant to observe that Exh.P.W.I/R‑2 is a document indicating the location of the suit house and the same appears to have been prepared on the direction of the learned Rent Controller and it clearly mentioned therein in these words:‑‑ More to it R.W.1 Mumtaz Khan has stated in his statement that the suit house is situated towards the West of proposed market and the same is not within the limit of market, and that this part of the statement has gone totally uncross‑examined, which is in its effect amounts to admission by the respondents' side.

7. The relevant provision of law is section 13(2)(b)(vi), according to which the reasonableness and good faith of the landlord are pre-conditions for eviction of a tenant on the ground of reconstruction or erection of a building. The landlord is bound under the law to prove that he requires the property reasonably and in good faith. In the instant case both the elements are missing. As the Khasra No. in which the suit house is located is not at all included in the site plan approved for the proposed construction. Thus, it is clear that the requirement of the, landlord is neither reasonable nor in good faith. We have examined the, judgments of both the lower Courts and found that this aspect of the matter is not touched by either of the two which indicates that both the Courts below were probably not assisted on this point. Had this significant feature of the case been brought to the notice of the Courts below then surely the findings would not have been like the present one. In these circumstances we believe that the findings of the two Courts below are the outcome of misappreciation of evidence and non- appreciation of the record which renders the impugned judgments and orders as without lawful authority. Consequently, we accept this writ: petition and set aside the order of eviction of the petitioner from the suit house. No order as to costs. Q.M.H./M.A.K./397/P Petition allowed.