P L D 1984 Peshawar 68 (PLP)

USMAN ALI SHAH, ACTG. C. J.‑The petitioner/landlady owns the demised shop bearing No. 422 situate in Saddar Bazar, Peshawar Cantonment. Late Imdad Hussain had tenanted it on payment of monthly, rent. In the events that happened, the petitioner brought eviction application on 19‑7‑1969 for the ejectment of Imadad Hussain from the demised shop .on the ground of default in payment of rent. During the pendency of the application the petitioner filed a second application on 31‑3‑1970 in which she also sought the eviction of the tenant on the ground of reconstruction of the demised shop. The eviction application after contest between the parties was dismissed by the learned Rent Controller, vide his order, dated 25‑6‑1973 which was upheld in appeal of the petitioner by the learned District Judge, vide his order, dated 19‑3‑1978. As no other legal remedy was available to the petitioner, she has filed the present writ petition with a prayer that the above orders of the two functionaries be declared unlawful and of no legal effect and as a result direction may be issued for the eviction of the tenant /respondent from the demised shop. We have heard the learned counsel for the parties and gone through the material on record. It may be pointed out that the original tenant of the demised shop namely, Imdad Hussain died during the pendency of the present writ proceedings and his legal heirs were brought on record. Late lmdad Hussain had the only son, namely, Iqbal‑Hussain who also died and his legal heirs were also brought on record. Late lqbal Hussain had three sons and his other legal heirs are females. Two of the sons of late Iqbal Hussain appeared before the Court. The learned counsel has raised a preliminary objection that the impugned orders of the two functionaries have assumed finality and as the same are based on evidence, this Court will have no occasion in the exercise of its writ jurisdiction to interfere with the same and to substitute its own conclusion. In support of his contention, he referred to an authority reported in P L D 1981 S C

246. We have given our earnest consideration to this contention but we consider that the learned counsel is wrong to rely upon the above authority in the present case in which we find that the two functionaries have not attended to the legal position obtaining in this case. The question before the two functionaries in this case was whether the petitioner wanted the demised shop for reconstruction bona fide and in good faith and in our view legally the two functionaries were wrong to repel the claim of the petitioner in this behalf. The petitioner had alongwith the eviction application produced an approved site plan from the Cantonment Board for the recons truction of the demised shop. We think that the two functionaries were no correct to minimise the importance of the approved site plan for the reconstruction of the demised shop unless it should have been shown from the evidence on record that the petitioner has produced the approved site plan as an excuse to deprive the respondents of heir possession as tenants over the demised shop. The learned counsel for the respondents, however. referred to an authority of the Lahore High Court reported in P L D 1976 Lah. 1095 to show that if it is found that the landlord has produced approved site plan alongwith the eviction application as an excuse for the eviction of the tenant, his application will be turned down. We have gone through the said authority and we find that the learned counsel does not seem to have appreciated the ratio of that authority. In that case, the landlord had taken two curious grounds, one for the reconstruction and the other for personal requirement for the use of Habib Bank Ltd. and before he had sought permission for the reconstruction from the Municipal Committee he bad entered into agreement with Habib Bank and had agreed to give possession of the property in dispute to it. In these circumstances, the learned Judge of the Lahore High Court rightly held that as the landlord had already agreed to give possession of the property in dispute to Habib Bank before securing the permission for the re‑construction, his object was to deprive the tenant of his possession of the shop. Even holding so, the learned Judge made it clear that the landlord has the right to reconstruct the demised premises but after reconstruction he will put the tenant in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation. It is clear that the facts of that case are different from the present case. The petitioner in the present case has not entered into any agreement with a third party to give possession to it and thereafter has sought eviction of the respondents from the demised shop, therefore, there is on the basis of the above authority no occasion for holding that the petitioner will not reconstruct the demised shop after the eviction of the respondents. In a similar case reported in P L D 1977 Pesh. 80, a learned Division Bench of this Court even ruled out the condition that the landlord must produce approved site plan for the reconstruction of the demised shop along with the eviction application for ejectment of his tenant. As in the present case, the petitioner has appended an approved site plan to her eviction application for the reconstruction of the demised shop and as nothing has been shown from the evidence on record that it is just a contrivance on her part to dislodge the respondents from the demised shop, how should the Court disbelieve her and hold against her. There is one more feature of the case which was disclosed to us during the course of hearing of this writ petition. At the back of the demised shop, the petitioner owns another shop. She has secured permission in the form of approved site plan for the reconstruction of both shops. A reference to the site plan will slow that the petitioner has intended to render her property into a market consisting of shops and Balakhanas. Thus, the petitioner wants to build the area on modern lines and pattern to render it valuable and fetch her more financial benefit. As the property is situate in a very busy commercial area, it will be unfair to deprive, her of her right in this behalf. There is no evidence on record to show that the petitioner does not have the means to build the property according to the approved site plan. We, therefore, see no reason to doubt her bona fide in this behalf. There has arisen one crucial aspect which goes against the respondents. It was disclosed before us that one son of late Iqbal Hussain has qualified B. Com. and is employed in a Bank, therefore, he cannot be supposed to adopt the profession as tailor. About the other son, it is stated that he has given up his studies and will learn tailorship to work as tailor in the demised shop. We will refrain to go deep into this question. We observe that the respondents are to be given a shop in the building after reconstruction of the property in question according to the approved site plan and if the demised shop is not reconstructed, the respondents can be restored its possession, provided that in either case they want the shop for their own personal use. If it is refused to them, they may apply to the Rent Controller for possession and in that event not only possession will be given to them but the petitioner will also be liable to criminal action against her. This is a safeguard provided in the Rent Law, therefore, there should remain no apprehension in the mind of the respondents. No other point was urged by the learned counsel on behalf of either side. On the view of the matter that we take, as the two functionaries have failed to attend to the legal position obtaining in this case in its proper orders suffer from an error of law and consequently perspective, their impugned the same cannot be sustained. We, therefore, allow this petition and direct`' that the parties shall bear their own costs. The respondents shall vacate the demised shop within four months on the condition of paying monthly rent to the petitioner regularly each month. M. Y. H. Petition accepted.