1994 PLP 1626 (MLD)

A shop on Railway Road, Gujrat was owned by Sh. Nazir Hussain. It was an evacuee property and was transferred to a person who sold it to Sh. Nazir Hussain. It was let out by him to Fazal Elahi appellant No. 1 who, ever since, held tenancy of it. Firstly, Sh. Nazir Hussain instituted a petition for ejectment of his tenant Fazal Elahi from the shop in question on three-fold grounds, i.e. default in payment of rent; bona fide personal requirement of the shop for the use of his son Tanvir Hussain and causing of damage to it. On trial, the ejectment petition was dismissed by the Rent Controller on 6-5-1981. Appeal filed against the order of Rent Controller was dismissed, on 27-9-1983; by learned Additional District Judge, Gujrat. Sh. Nazir Hussain died in course of above appal in the year 1982. His successors were substituted for him on record and they then prosecuted the appeal but lost it as said above. Meanwhile, the successor-heirs of Sh. Nazir Hussain got a building plan for its reconstruction sanctioned from the Municipal Committee, on 9-10-1988. On 5-9-1989, they instituted a fresh petition for eviction of Fazal Elahi appellant No. 1 from the shop in question on the grounds of non-payment of rent to them, since month of February, 1984 up-to-date; causing of damage to the shop which impaired its value and utility; subletting of the shop by appellant No. 1 to a sub-tenant, namely, Muhammad Sadiq appellant No. 2 and bona fide requirement of the shop for its reconstruction in accordance with the building plan approved by the Municipal Committee. Appellants contested the ejectment case against them. It was tried on as many as eleven issues in the trial Court. Upon scrutiny of the evidence produced by the parties. the Rent Controller found that damage to the shop was established as also its bona fide requirement for its reconstruction in accordance with the approved building plan and decreed ejectment of the tenant on the aforesaid two grounds, on 9-6-1993, and gave him one month to vacate possession for the benefit of the owner-landlords. Findings on the pleas of rent-default and subletting were answered in negative. Appellants preferred an appeal from the order of the Rent Controller. Owner-landlords as respondents in appeal filed cross-objections to challenge the adverse findings recorded against them. On 5-4-1994, the appeal preferred by the appellants was dismissed and the cross-objections instituted by the respondents were allowed with the consequence that one more plea relating to rent-default was also found in favour of the respondents. The result was that the ejectment order proceeded on three grounds i.e. the bona fide requirement of the shop for its reconstruction in accordance with the approved building plan; rent default for the pleaded period and causing of damage to the shop by the tenant. Against the order passed in first appeal, the appellants preferred a further appeal in this Court. They were represented by Sh. Naveed Shehryar, Advocate. It was urged that certified copy of the building plan to support plea of reconstruction of the shop in absence of a witness from the Municipal Committee to prove its original was inadmissible in evidence, more particularly, when an objection to its admissibility was raised at the time of its admission in evidence. It was further urged that mere production of sanctioned building plan on file was insufficient to establish the bona fide and reasonableness of the proposed reconstruction of the shop. As far the rent-default, it was urged that the entire rent due was deposited in the office of Rent Controller and merely that the deposit was made in the name of deceased landlord Sh. Nazir Hussain was insufficient circumstance to hold it proved. It was also urged that causing of damage to the shop was not satisfactorily proved on record by the evidence given by the respondents. I shall advert to the contentions in seriatim. Therefore, the first point for decision was whether; the bona fide and reasonable requirement for reconstruction of the shop was sufficiently established on record of the case. Upon examining the record, 1 had. little doubt that the plea was sufficiently established by evidence of a sound character. It was a one-room shop. An adjacent shop was also owned by the respondents. It lay vacant. There was good evidence that these were old constructions dating back to a period of 60/70 years and the passage of long time had shown its adverse effect on soundness of their structures. Evidence showed that both the shops were in a dilapidated condition. The respondents had got a building plan approved from the Municipal Committee. By it, existing construction shall be substituted by a two storeyed building. Reconstructed premises shall comprise ten shops on the ground floor and accommodation for residence on the first floor. Reconstruction building shall surely add to its value-and utility. It shall augment the resources of owners also. Subject to reasonable restriction imposed by law, it was a prime right of the owner to improve upon his property. Presence of tenant on the premises could not arrest his right to rebuild his property for its improvement. Tenant's stay on the rented premises was tenuous and also transient. If he so wished, he could leave any time without restriction. Therefore, the owner of the rented premises could not be left in lurch to deprive him of his vested right to rebuild' and improve his premises for adding to their value and utility. All around, the progress seemed on. Old premises gave way to new ones. After all, about three-quarter of a century was not a short period for telling on the health of a structure. Therefore, if the owners of the shops wished for their reconstruction and intended to implement it for rebuilding them, their resolve could not be termed unreasonable. On record, and also the Courts below were agreed on it that the proposed reconstruction of the shop was bona fide as well as reasonable. As regards the plea of inadmissibility of certified copy of the approved building plan in evidence, the contention was wholly unsound. Not only the statute but the decided case-law supported the view that certified copy of the approved building plan was admissible in evidence. Section 175 of Punjab Local Government Ordinance, 1979 provides that all records prepared or registers maintained under the Ordinance shall be deemed to be public documents within the meaning of Evidence Act, 1872 (I of 1872). Therefore, certified copy of the sanctioned building plan was admissible as sufficient proof of the original plan approved by the Municipal Committee. There was no doubt about its genuineness either. A witness from the office of Municipal Committee appeared to testify to its correctness. Appellants failed to rebut its genuine character. Cases in Mian Taj Din v. Messrs Royal Engineering Works PLD 1967 Lah. 718, Malik Zafar Ali v. Malik Khalid Aziz and others 1991 SCMR 1362 were in point to show that certified copy of the sanctioned building plan approved by the Municipal Committee was a sufficient proof of its original. In my opinion, the existing record successfully sustained the agreed finding about the bona fide and reasonable requirement by the owners of the shop for its reconstruction. As observed above, two adjacent shops were intended to be dismantled for raising a double-storeyed building on the place. Independent of sufficient proof of bona fide and reasonable requirement of the shop for its, reconstruction, there were ample statutory safeguards in the Rent Laws for the landlord acting mala fide in this behalf. As regards rent default, it was correct that the rent was deposited in the office of Rent Controller in the name of Sh. Nazir Hussain since deceased. Appellants were cognizant of his death long before: His death took place during the pendency of first appeal instituted by him against the appellants. His heirs were substituted for him on record of the aforesaid appeal and they prosecuted it further. Where was then any legal justification for the appellants to still deposit the rent to the credit of the deceased. Right course for the appellants was to either tender or pay the due rent to his successors or deposit it in their names. The object could be no other but to cause inconvenience to the persons entitled to; receive rent. Obviously, the deceased could not receive the deposited rent ands the appellants were, therefore, not justified to deposit the rent in his name. Appellants also knew about the persons entitled to receive rent from them. Yet; they bypassed them and preferred to deposit it in the name of their predecessor-in-interest. They could be safely found rent defaulters and wilful also. Therefore, the finding recorded on issue of rent default was rightly reversed in appeal by learned Additional District Judge. There was no dispute that cross-objections which were in the nature of cross appeal, were entertainable under the law. Since the decision on issues relating to rent default and reconstruction of the premises was sufficient for a final decision of the second appeal, it was unnecessary for me to advert to the plea of causing damage to the shop entailing ejectment of the appellants on this score. In view of the above, I would uphold the judgment of learned Additional District Judge, Gujrat and dismiss second appeal in limine by allowing two months to the appellants to vacate and hand over possession of the shop to the respondents.. . M.B.A./F-148/L Appeal dismissed.