1988K428 (PLP)

‑‑‑S 15(2)(vi)‑‑Reconstruction‑‑Landlord's application for ejectment was dismissed by Rent Controller for want of approved plan‑‑High Court, on appeal, remanded case to Rent Controller for decision afresh as till then landlord had obtained sanctioned plan and submitted before the High Court‑‑Rent Controller again dismissed application on ground that sanctioned plan was not attached with ejectment application in first instance‑‑Landlord produced plan duly approved by competent relevant authorities and attached affidavit of evidence wherein it was stated that premises was required for' reconstructing double storeyed building for personal use and expansion of Madrassa, Mosque and Boarding House‑‑On rest of. land adjacent to disputed premises which also . belonged., to landlord; construction had been completed up . to plinth level and a huge .amount had already been spent which showed that premises was bona fide required for reconstruction and personal use‑-Ejectment:. application. allowed in circumstances. Messrs Pak Army Store v. Ali Akbar Rizvi PLD 1985 Kar. 201 and Haji Mohammad Ayub v. Syed Buzarg Shah and 3 others PLD 1983 Pesh. 67 rel. Zarin Shah v. Wali Muhammad, 1985 CLC 1303 ref. A. Ghafoor Sheikh for Appellant. S. Nasiruddin for Respondent. Date of hearing: 12th May, 1988. The appellant filed application for ejectment against the respondent on the ground that the premises is required for the purposes of ‑reconstruction of Madrassa and personal use. The claim of the appellant was denied and ejectment application was dismissed. The appellant filed 1st Rent Appeal No.369 of 1984 and placed on record a photostat copy of the approved plan which had been not produced ‑before the Controller. The case was remanded by the High Court to the Controller to enable the appellant to produce further evidence including plan and the respondent was also allowed to lead evidence in rebuttal. On remand the learned Rent Controller recorded the evidence of the parties in which the plan approved on 30‑4‑1983 was produced. The learned Controller dismissed the ejectment application as it was filed on 23‑1‑2‑1980 before the plan was approved. Reliance was placed on Zarin Shah v. Wali Muhammad and four others 1985 C L C 1303 where it was observed that existence of a sanctioned plan is a precondition for maintainability of ejectment application filed on the ground of reconstruction. The learned counsel for the appellant has contended that while filing ejectment application on ground of reconstruction it is not mandatory to annex with it a plan duly approved by the relevant authorities or to obtain it before‑hand. The contention attracts the provision of section 15(2) of the Sind Rented Premises Ordinance which provides that the Rent Controller shall direct a tenant to put the landlord in possession of the premises if he is satisfied that 'the premises is required by the landlord for reconstruction or erection of new building at the site and the landlord has obtained necessary sanction for such reconstruction or erection from the authority competent under any law for the time being in force to give such sanction'. In order to succeed in a case of ejectment on ground of reconstruction the landlord must prove that (1) he requires the premises for reconstruction and (2) he has obtained necessary permission for reconstruction from the competent authority. There is nothing in law to show that the permission for reconstruction should exist at the time when the ejectment application has been filed and approved plan should be attached with the said application. The first and foremost fact which gives cause to the landlord is that he requires the premises for reconstruction. If during the hearing of the case he is not able to satisfy the Controller that he has obtained necessary sanction for such reconstruction from the competent authority then the Rent Controller can reject the application. In this regard reference can be made to Qamar Din v. Mst. Taleh Begum 1980 S C M R 608 where while considering provision of section 13 (2) (vi) of Rent Restriction Ordinance, 1959 it was observed as follows: "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 sublet 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 culpable is a completed act or which is already in existence. Similarly, something which ought to have done has indeed not been done. But the position under, clause (vi) of subsection (2) of section 13 is somewhat 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 rented premises in good faith for reconstruction. In other words, if he states this much in his 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 i3 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 25th November, 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 applicable 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 beer, raised in the ejectment application, the tenant, petitioner herein .had adequate notice of it. On this score also the petition would be in order. The acceptance of the plea, 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." This dictum of the Supreme Court was followed in Messrs Pak Army Store v. Ali Akbar Rizvi P L D 1985 Kar.

201. Reference can also be made to Haji Mohammad Ayub v. Syed Buzarg Shah and three others P L D 1983 Peshawar

67. It is thus clear that if the approved plan has been obtained after filing the ejectment application and is produced before the Controller during hearing then the same cannot be B dismissed. If however the landlord is unable to produce and prove any sanctioned plan for reconstruction, the Controller would be justified to dismissed the application. The learned counsel for the respondent has relied on Zarin Shah v. Wali Mohammad 1985 C L C 1303 but in view of the observation of the Supreme Court quoted above with respect I am unable to subscribe to the view expressed in it. The Appellate Court while remanding ‑the case was aware of the fact that the plan had been approved after filing the ejectment application but it did not dismiss it on that ground. Instead was remanded for production of the sanctioned plan before the Rent Controller so that the respondent may be given an opportunity to rebut the evidence produced by the appellant. This clearly shows t hat the learned Appellate Court had followed the principle laid down by the Supreme Court and the Rent Controller seems to have erroneously followed Zareen Shah's case instead of Qamar Din's case The principle laid down by the Supreme Court curtails litigation and avoids multiplicity of proceedings. The appellant has produced the plan duly approved by the relevant authorities and in the affidavit of evidence it has been stated that the premises is required for reconstruction of double storeyed building for personal use and explanation of Madrassa, Mosque and Boarding House. On the rest of the land adjacent to the disputed premises which also belongs to the appellant, construction has been completed up to the plinth level measuring 12467 square feet ands Rs.13,42,000 have been spent. These facts clearly show that the premises are bona fide required for re‑construction and personal use. The appeal is allowed. The respondent should vacate and hand over peaceful possession of the disputed premises to the appellant within three months. N . Y . H . /M‑518/ K Appeal allowed.