2009 PLP 2401 (YLR)

MUHAMMAD 1QBAL MAHAR, J.--This first rent appeal is directed against the order dated 22-1-2008 passed by learned Additional Controller of Rents, Clifton Cantonment, Karachi, in Rent Case No.48 of 2002 whereby ejectment application filed by respondent/landlady was allowed and appellant/tenant was directed to vacate the premises in question and hand over its peaceful possession to the respondent or her attorney within 30 days. The facts giving rise to the present FRA are that the respondent is the owner/landlady of the property including Shop No.5, Plot No.A-18/9, Street No.2, Dehli Colony No.1, Clifton, Karachi, and the appellant is tenant of the shop at monthly rent of Rs.700. The respondent in her ejectment application stated that she wants to reconstruct a new building at the site i.e. one shop on the ground floor and a flat on the 1st floor and she has got approval of building plan from the concerned authority. She will use the shop for her business of import and export and 1st floor for use and occupation of her family. Therefore, the respondent/landlady had prayed for ejectment of the appellant/ tenant from the premises in question as she can demolish the old structure of the building and reconstruct new building. The appellant filed his written statement denying the grounds taken by the respondent/landlady in ejectment appli cation and submitted that the respondent/ landlady after losing cases against him in first round of litigation has come up with a new ground. He further submitted that respondent/landlady wants to re-let the demised shop and other shops on higher rent and heavy amount of Pugree, therefore he prayed for dismissal of ejectment application. The learned Additional Rent Controller settled the following issues for consideration:-- (1) Whether the petitioner after losing the cases in first round of litigation against the respondent, has fraudulently managed to start the second round of litigation case again? (2) Whether the present case filed by the petitioner being false, fabricated, baseless, concocted, frivolous and mala fide is liable to be dismissed/rejected under section 17(3) of the Cantonments Rent Restriction Act, 1963? (3) Whether the application does not fall within the four corners of section 17(4)(b) of the Canton ments Rent Restriction Act, 1963? (4) Whether the petitioner genuinely needs the shop in question in good faith, if not to what effect? (5) Whether the petitioner has obtained necessary sanction and got the plan approved for construction of building, from the concerned authorities of Cantonment? The learned Additional Rent Controller after considering the evidence led by the parties and hearing them allowed the ejectment application of respondent/ landlady vide order dated 22-1-2008 and directed the appellant/tenant to vacate the premises and hand over its peaceful possession to the respondent/landlady or her attorney within thirty days. The learned counsel for appellant contended that the learned Additional Rent Controller has failed to appreciate the evidence available on record and the order dated 20-1-2008, passed by the learned trial Court is based on misreading of evidence. He further contended that the impugned order of learned trial Court is based on the report of Engineer and it has no legal base. He also contended that prior to this respondent/landlady had filed rent case on the ground of personal need which was dismissed and against which FRA was filed by her but subsequently same was withdrawn with permission of this Court to file a fresh case on fresh ground, therefore he prayed for setting aside the impugned order. In support of his contention he has relied upon PLD 1994 Kar.

209. On the other hand the learned counsel for respondent/landlady supported the order passed by the learned Additional Rent Controller and contended that the respondent/landlady is owner of the property which is double storey, shops on ground and residential on 1st floor. In all there are five shops. The respondent/ landlady has got vacated all other four shops through Court proceedings as she intends to construct new building due to poor condition of the building as per approved plan for which she has obtained necessary sanction from Cantonment Board. She has demolished some dangerous portion of the building during the course of proceedings. The respondent/landlady has also served a legal notice on the appellant/ tenant intimating therein that she needs the demised shop for reconstructing a new building. Therefore, the learned counsel prayed for maintaining the order of learned Additional Rent Controller. In support of his arguments he relied upon 1999 MLD 2592, PLD 1988 Pesh. 153 and 2000 SCMR 1080. I have given due consideration to the arguments of learned counsel for the parties and have gone through the evidence brought on record as well as case-law relied upon by the learned counsel. The perusal of record reveals that the respondent/landlady requires the premises in question for reconstruction of shop on ground floor and residential flat on first floor. She filed approved plan and sanction from competent authority. The learned trial Court conducted an inquiry through Engineer of Cantonment Board, Clifton, regarding soundness of the remaining portion of building. The report of Engineer shows that the building has been demolished partly and debris lying there which may be harmful to the pedestrian/neighbours or the occupants of the shop, remaining structure of the building is not dangerous parapet wall on 1st floor room is in dilapidated condition and existing condition of the shop is not good. The respondent/landlady has got vacated four other shops situated in same building through Court proceedings. The intention of respondent/landlady is very much clear that she wants to reconstruct the building as she has obtained approved plan and necessary sanction from Cantonment Board and she has right to improve her property to augment its value and utility to her. All around, old buildings are going away to new ones. Rent laws are not intended to arrest improvement of properties and the right of the owner to better it as she wished it. In case-law relied upon by learned counsel for the respondent/landlady in similar circumstances the FRAs were dismissed. In case reported in PLD 1988 Pesh. 133(b) it is held:-- "S.17(2)(vi).

Plea of demolition and reconstruction of premises--Proof of--Landlord, in order to prove demolition and reconstruc tion of building, was not required to show or prove that building was in any way dilapidated and required reconstruction, but, he had to show only his intention to demolish and reconstruct the same--Landlords not only had produced on record documents showing sanction granted to them by Cantonment Board for demoli tion and reconstruction of building, but also produced duly approved site-plan for such construction--Plea of demolition and recons truction of building had sufficiently been proved in circumstances." So far the contention of learned counsel for appellant that in previous round of litigation plea of reconstruction was not taken by the respondent/landlady is concerned it is crystal clear that previous. FRA was withdrawn because of this fresh ground of reconstruction of building due to poor condition. In case the respondent/ landlady fails to demolish the premises within four months after obtaining possession she can be punished upto six months or with fine or with both as provided by section 17(vii) of Cantonments Rent Restriction Act, 1963. In view of above discussion and case-law cited by learned counsel for respondent I do not find any substance in the FRA which is hereby dismissed. However, three months time is given to the appellant to vacate the premises in question without any hurdle and damage to it. S.A.K. /N-36/K Appeal dismissed.