2005 PLP 446 (CLC)

(3) Whether the building plan is not sanctioned according to law, if so, its effect? OPR (4) Whether the Court has got no jurisdiction to adjudicate upon the matter in the case after entrustment of the case by the Senior Civil Judge (Rent Controller)? OPR (5) Whether the conversion of the building into residential form cannot be done without the permission of the Rent Controller under section 11 of the Urban Rent Restriction Ordinance. If so, its effect? OPR (6) Whether the premises in dispute are owned by several owners jointly. If so, its effect? OPR (7) Relief.

4. Parties were put to trial and vide order, dated 7‑9‑1983, the learned Rent Controller seized of the matter, dismissed the ejectment applications. The landlady filed appeals against the orders, which were dismissed. She challenged the above two orders through W.P. No.1531 of 1986 and W.P. No.1124 of 1987, which were accepted by this Court on 20‑1‑1991 by observing as follows:‑‑ "The building plan sanctioned by L.M.C. was withdrawn for the reason that width of the side road as shown in the building plan did not tally with the position at the spot. However, no objection was raised to the proposed re‑construction. It was merely a matter of clarification, which could have been sorted out by mutual discussion. The petitioner failed to appear before the L.M.C. Authorities as according to her she had not received any notice: It was for this reason that the learned Commissioner, Lahore Division accepted the appeal of Begum Namwar Khatoon (landlady) and set aside the order of revocation of the building plan by L.M.C. and remanded the case to the latter for reconsideration. In these circumstances, it could not have been said that the landlady had not obtained necessary sanction for re construction from the Municipal Corporation. The effect of the acceptance of the appeal by the Commissioner and setting aside the order of revocation of the building plan by the L.M.C. was that the necessary sanction was still in the field and the anomaly about the width of side road was to be settled by the parties. There is no denying the fact that the petitioner had obtained the necessary sanction from L.M.C. before filing the ejectment petitions against the respondents. (7) For the above reason, the ejectment applications could proceed and the learned Courts below were not justified to dismiss them. Accordingly, the writ petitions are accepted and the impugned orders are set aside, being without lawful authority and of no legal effect and the cases are remanded to the learned Rent Controller for proceeding in accordance with law."

5. During the post remand proceedings, two applications under Order 1, rule 10, C.P.C., one by the tenants and the other by Syed Muhammad Munir Jilani, were filed for impleading the latter as a party to the ejectment petitions, on the strength, that he has obtained a Transfer Order from the Settlement Department about the property in dispute. While both the applications were dismissed; the learned Rent Controller, by a detailed order answered Issue No.1 in favour of the landlady and passed the order of ejectment. Syed Muhammad Munir Jilani did not challenge the order any further.

6. The tenants filed appeals against the order, which were accepted by the learned Additional District Judge on the sole ground that the sanctioned plan, produced by the lady, pertained to Property No.101, which could not be availed for the ejectment of the tenants for the purpose of re‑construction, from the property bearing No.103. Consequently, both the ejectment petitions were dismissed. Mst. Namwar Khatoon, filed W.P. No.15570 and W.P. No.15571 of 1993, which were accepted by this Court on 16‑10‑1998, and it was held that:‑‑ "From the order dated 20‑1‑1991, it is obvious that the parties raised objections to the validity of the plan, on the ground that its sanction had been revoked and not on the ground that it pertained to some other property. After considering the respective point of view of the parties, this Court concluded that there was a valid sanction after order of Commissioner and that the ejectment petition could not have been dismissed. After the remand of the case, the respondent could not possibly take up new stand by alleging that the plan related to some other property. Their stand throughout has been that the plan related to the property in issue and that its sanction stood revoked and after having remained unsuccessful on that account, they could not be allowed to take a different plea. The learned Additional District Judge, therefore, fell in error, in dismissing the ejectment petition, on a plea which did not exist in the circumstances of this case and also which could not have been urged in view of the remand order passed by this Court. The order of this Court was to decide the case on merits. The learned Additional District Judge could not by‑pass the directions of this Court nor could travel beyond the scope of the remand order. The reopening of another issue or dismissal of the ejectment petition by taking a new point in consideration, being beyond the order of remand, the impugned order cannot sustain. Since the learned Additional District Judge has not considered the other evidence on record nor decided the issue of re‑construction on merit and rejected ejectment application on an objection which could not be raised, therefore, case will have to be remanded for the decision of the appeal afresh on merit."

7. In these post remand proceedings, the learned Appellate, Court has dismissed the appeals of the appellants/petitioners. Hence the appeal and the writ petition.

8. Learned counsel for the appellants has argued, that the property in dispute does not correspond to the one, for which, the respondents have obtained the plan; in this regard, an application for adducing the additional evidence was moved with the learned Court of appeal, but the same has been ignored and not decided. On merits, it is submitted that the respondents had failed to make out a case for re‑construction of the property; the demand for eviction was with tainted mala fide intentions, obviously to seek the ejectment of the appellants and to rent out the same at enhanced rent or to dispose it of.

9. I have heard the learned counsel for the parties. In the light of the two orders passed by this Court; which are reproduced above, obviously, the plea that the property in question is different from the one for which, the site plan has been got sanctioned by the respondents, was not at all available to the appellants/petitioners; even if any such application raising the above plea was filed by them, which according to the appellants' counsel has not been considered by the Court, while passing the impugned order, the application was liable to be rejected simply for the reason, that the Court below could not decide the plea by violating the orders of this Court. However, when asked in the Court, learned counsel for the appellants has conceded, that no application for the additional evidence has been moved in this appeal. Anyhow, it may be reiterated that the said plea was not at all available to the appellants. And obviously, the object behind the above was to further prolong the matter.

10. As regards the merits of the case are concerned, admittedly and as stands established on the record, the respondents' side is the owner of the suit property; they want to improve the property by spending money, for which site plan has been got approved. It is only for and on account of the delaying tactics used by the appellants, that since 1973 till this date, the possession could not be obtained by the respondents for the re -erection of their building; which if was not re‑constructed by them, after getting the eviction of the appellants/petitioners, sufficient safeguards were provided by the law.

11. I feel sorry, for the wretched‑landlady' of the case, who kept waiting for the adjudication of her ejectment application by an administrative Tribunal, where simple and summary procedure is supposed to be applicable and then lost her breath, yet the matter 6 lingering for the last 31 years. This is one of the most deplorable and sad nature of cases, coming to my notice and for adjudication, where the owner of the property has been yearning for such a long period, to seek the eviction of his tenant on the ground of re‑construction, to have full benefits and yield of his improved property. However, from the record, it is vivid and apparent that the appellants used all the delaying tactics and were successful in making the mockery of law. Now again the plea, that the sanctioned plan does not correspond to the property in question has been raised, which is the continuity of the frivolous stance of the appellants/petitioners and the obvious object is to further drag the matter on the score of additional evidence. From all the above, an irresistible conclusion, which can be drawn is, that the appellants/petitioners are mainly responsible for delaying the matter; they were and are instrumental and a hurdle in the way of the process of dispensation of justice, which when delayed is deemed to have denied. Resultantly, while dismissing this appeal and the writ petition as being without merits. I impose a special costs of Rs.25,000 each, which I feel is hardly any compensation to the respondents' side, who have suffered for such a long period of time. M.B.A./H‑55/L Appeal dismissed.