2001 PLP 175 (MLD)

Date of hearing: 14th April, 2000. Briefly stated the facts are that Ch. Karamat Hussain filed ejectment petition through his attorney Col. (Retd.) Noor Khan for the eviction of Mst. Khair‑un‑Nisa and others on the ground of default as well as reconstruction. The said application was resisted by the tenant/petitioner and accordingly the trial Court framed the following issues:‑‑ (1) Whether the application has been filed without authorization? OPR. (2) Whether the petitioners bonafidely want to raise new construction in place of the demised premises? OPA. (3) Relief.

2. In support of their respective stand both the parties adduced evidence. After going though the evidence produced by the parties the trial Court dismissed the application ‑vide order dated 27‑5‑1999. The landlord/respondent felt aggrieved of the same and agitated the matter in the appellate Court who was pleased to accept the same and set aside the order passed by the learned Rent Controller, vide its judgment dated 11‑11‑1999. The tenant/petitioners have felt aggrieved of the said order and has filed the instant writ petition.

3. Arguments have been heard and record perused.

4. Learned counsel for the petitioners have vehemently argued that ejectment has been sought on the ground of reconstruction which has not been proved from the record and evidence produced m the trial Court. While elaborating his contention he referred to the statement of P.W.1 Noor Khan regarding submission of site‑plan for seeking the sanction for reconstruction of said building. He contended that it has not been provided from record if the very site‑plan had been submitted by an authorized person as the same was neither submitted by the attorney of the landlord nor by any other authorized person. He, thus, concluded that as the very submission of said site‑plan has not been proved so this fact tells upon the bona fide of the land lords for its reconstruction. He further contended that initially an ejectment petition was filed on 20‑9‑1995 which was dismissed on 27‑5‑1997 and thereafter he filed another application which was also dismissed on 4‑9‑1997, that ground of reconstruction was taken in the second application but it was not accepted as sanctioned site‑plan had not been annexed with the application, that after dismissal of second application he moved the instant petitioner on 4‑9‑1997 and appeal filed against the said order was accepted vide judgment dated 11‑11‑1.999. He submitted that the mere fact that instant application has been filed after about 4 months of the second application, shows that landlord is bent upon to evict the tenants/petitioners by one way or the other. He further submitted protection afforded vide section 13(5‑B), though is available to the petitioner yet the landlord has to show his bona fide for seeking eviction on the ground of reconstruction. In support of his contention he has relied upon Service Industries, Lahore, and another v. Munawar Sultana and 2 others (1984 CLC 3011) and Nisar Ahmad v. ‑Ahmed. Hassan (1984 CLC 3140). He, thus, submitted that as the landlord has failed to prove his bona fide regarding the reconstruction of the property in dispute so the appellate Court was not justified in setting aside the order passed by the learned Rent Controller.

5. Conversely the impugned judgment has been supported by the learned counsel. for the respondents. He further submits that ground of reconstruction has not been raised for the first time, in the ejectment petition but a similar ground was also raised in the application which was dismissed on 27‑5‑1997. He further contends that it is immaterial as to who has submitted the site7phn as that was to be seen by the concerned authorities and not by the tenant. He further contends that this Court while exercising Constitutional jurisdiction is debarred from reappraising the evidence which has already come on record and placed reliance upon Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522). He, thus, submits that impugned order has been passed in accordance with law, as such there is no force in the writ petition and the same be dismissed..

6. The landlord has sought the eviction of the tenants/petitioners mainly on the ground of re‑construction. Learned counsel for the petitioners has vehemently argued and placed his claim upon the submission of site plan by an unauthorized person. It is very strange that a tenant is objecting the site‑plan submitted by the landlord for its reconstruction. The matter regarding submission of plan by an unauthorized person or otherwise was within the authority sanctioning the site‑plan. It is fact that ground of reconstruction was taken in the previous ejectment petition which was dismissed on 27‑5‑1997. The said application was dismissed mainly on the ground that sanctioned plan had not been annexed with the said petition. It is in the light of that observation of the learned Rent Controller that landlord got the site‑plan sanctioned from the concerned authorities. Had the ground or reconstruction not been raised in the previous ejectment petition there could be some force in the contention of the learned counsel for the petitioner that ejectment petition has been filed with mala fide intention. Now the mere fact that site‑plan was not submitted either by the original landlord or by some other authorized person does not give any cause of action to the tenant to challenge that aspect of the matter. The points raised in the instant writ petition were raised before the learned appellate Court, and the learned appellate Court has adverted to all these points, as is evident from the impugned order. This Court while exercising Constitutional jurisdiction is not suppose to reappraise the evidence which has already been appraised by the Courts below.

7. In the light of facts stated above, there is no force in the instant writ petition and the same is hereby dismissed. However, the petitioners are granted a period of two months to vacate the premises. H.B.T./M‑342/L. ??????????????????????????????????????????????????????????????????????????????? Petition dismissed.