1986 PLP 591 (CLC)

‑‑‑S.13(2)(vi)‑‑Reconstruction of S.13(2)(vi) of Rent Ordinance, 1959, held, could not be considered as subject to provisions of subsection of S.13‑‑Unless reconstruction was mala fide, there existed no limitation on right of landlord to embark upon any type of construction. Abdul Bari v. Khadim Hussain P L D 1978 S C 78 rel. (d) Provisional Constitution Order (1 of 1981)‑‑ ‑‑‑Art.9‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Constitutional jurisdiction‑‑Concurrent findings of Courts below on question of fact based on appraisal of evidence‑‑Findings, held, cannot be interfered within Constitutional jurisdiction. Ch. Arshad Mahmood for Petitioner. Muhammad Zaheer for Respondents Nos.l to

7. Date of hearing: 20th October, 1985. . The facts are that respondents Nos.l to 7 filed an ejectment petition against the petitioner on the grounds of bona fide personal need and reconstruction, which are reflected by issues Nos.2 and

3. The learned Rent Controller on evaluation of the evidence of the parties answerea both the issues against the petitioner. Consequently, on 5‑5‑1983 he passed an ejectment order against him. The petitioner challenged his eviction through an appeal but the learned District Judge who heard it, after a detailed examination of the material on the record, agreed with the findings of the Rent Controller. The appeal, thus, failed. His order is dated 9‑5‑1984. The unsuccessful tenant has come to this Court for removal of the orders of the Tribunals below and the controversy between the parties is confined only to the two issues aforesaid.

2. I have heard learned counsel for the parties and examined the record. On behalf of the‑ petitioner, his learned counsel has made two‑fold submissions. His first contention is that the demised premises is a non‑residential building. It, therefore, cannot be got vacated for residential purposes. The respondent's need for self‑use being not in line with the character of the property. The petitioner cannot be evicted under section 13(3)(a)(ii) of Rent Restriction Ordinance. His second argument is that any reconstruction which negates the tenant's right to reoccupy the building, in pursuance of subsection 5(b) of section 13 of the Ordinance, is not countenanced by clause (vi) of subsection (2) of section 13 thereof. According to the learned counsel, as the proposed construction and conversion of the non‑residential building into residential one, would render it impossible for the petitioner to be put back in possession of the new building, the requirement for reconstruction cannot be deemed to be bona fide. For these submissions he relied on Muhammad Hafeez v. Muhammad Azeem 1984 C L C 1083 and Sabir Hassan v. Munir Malik P L D 1983 Kar. 414.

3. I am not in agreement with any of these arguments. It is in evidence that respondent No.1 after his retirement from service on medical grounds, is residing at Karachi and now wants to shift to Sialkot, to which he originally belongs. Respondent No.4 has been deserted by her husband and respondent No.5 is a disabled lady. Both of them, are, the sisters of respondent No.l and are his dependants. The property in dispute is intended to be reconstructed for its utilization as a house to enable them to settle in Sialkot. In this respect, the building plan has already been sanctioned by the Municipal Committee Under section 11 of the Ordinance, a landlord cannot convert a residential building into a non‑residential building without the written permission of the Rent Controller. But there is no restriction, in law, on conversion of non‑residential building into a residential house. The requirement for self‑use is to be considered, in the context of reconstruction and conversion of the building into residential premises. The argument which prevailed with the learned Judge in Muhammad Hafeez's case is that if the need of the landlord is not of the same category, to which the rented building belongs, the tenant cannot be evicted. This argument, however, has no application to the case in hand. I have also examined the other precedents. It too has no bearing on the facts of the instant case. The question of bona fide of the requirement for self‑use, is a question of fact and the concurrent findings of the Courts below on this point, which are based on appraisal of evidence, cannot be interferred with in these proceedings.

4. The petitioner's second contention rested on subsection 5(b) (ibid), runs counter to the law as laid down in Abdul Bari v. Khadim Hussain P L D 1978 S C 78 in which it has been held that clause (vi) of subsection (2) of section 13 cannot be considered as subject to the provisions of subsection (5‑B). Unless the reconstruction is mala fide, there is no limitation on the right of the landlord to embark upon any type of construction. Upon the facts of the case no mala fide can be attributed to the respondents' move to reconstruct their property.

5. For the foregoing reasons I do not find any jurisdictional defect or even an illegality in the impugned orders. The writ petition has no merit. It is dismissed but with no order as to costs. M. Y. H. Petition dismissed.