1986 PLP 103 (CLC)

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑‑‑S. 13‑‑Sind Rented Premises Ordinance (XVII of 1979), S. 21‑‑Sind Building Control Ordinance (V of 1979), S. 6‑‑Ejectment‑‑Allegation of unauthorised additions and alterations impairing value and utility of building‑‑No expert evidence produced in support of said allegation‑‑Case remanded to Rent Controller to reconsider this ground as well, alongwith main ground after allowing opportunity to both parties to lead further evidence. M. Sadiq for Appellant. A.K.M. Idrees for Respondents. Date of hearing: 2nd September, 1985. This second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is filed by the tenant/appellant against the order of eviction passed by the first appellate authority in Rent Appeal No. 478 of 1978 allowing the application of respondent on grounds of unauthorized construction and reconstruction of premises. The respondents instituted a rent case under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 alleging that the appellant has carried out additions and alterations in the premises which has materially impaired the value and utility of the premises, has defaulted in payment of rent, is a source of nuisance to respondents and other neighbours and that the premises were required in good faith for reconstruction. The ground of nuisance, however, was not pressed before the Controller, but on the remaining issues also the Controller found against the respondent and dismissed the application. On appeal the first appellate authority reversed the order of Controller and allowed the ejectment application of respondents on grounds that the appellant had made unauthorised additions and alterations in the premises which has materially impaired the value and utility of premises and that the premises is bona fide required for reconstruction by the respondents. Learned counsel for the appellant contends that the reversal of the finding of the Rent Controller by the first appellate Court are based on surmises and conjectures. It is contended that at no stage of proceedings the respondents produced necessary sanction for reconstruction of premises and as such the First Appellate Authority could not grant the application on ground of reconstruction. It is also contended that besides, appellant there were several other tenants in the building against whom no ejectment proceedings were initiated by the respondent and as the alleged approved plan related to whole of the plot; the same could not be constructed without ejecting all the tenants of building. It is accordingly urged that this fact established mala fides on the part of the respondents. The point regarding absence of sanction is specifically raised in ground No. 8 of the memo. of appeal. Before the Rent Controller also the respondents' witness was specifically cross‑examined in this regard as would appear from the following statement made by the respondents' witness in cross examination: ‑ "It is not fact that I had no permission for reconstruction when I filed the present case. Permission is with applicant. I cannot produce the same." The first appellate Court, however, did not give any importance to the absence of sanction in the case relying on the case of Haji Mouladad v . Haji Sardar Khan P L D 1972 Quetta 39 and held that the approved plan produced by the appellant could be accepted as the sanction for reconstruction of the premises. I have gone through Moula Dad's case and I failed to find any observations therein which could be construed as laying down that an approved plan of a building is a substitute for the sanction. On the contrary the observation in para. 3 of the judgment at page 41 of the report will show that the Courts below in that case gave positive findings that sanction from Municipality was obtained. In the present case the respondent in his ejetment application only alleged that he has obtained necessary sanction for the said reconstruction from the Municipal Corporation and plan of the new building is already passed by the Corporation. However, neither any date was disclosed nor the sanction letter was filed alongwith the rent application. In his evidence before the Court the respondent's witness admitted in cross examination that the plans were passed in the year 1962 and he further stated that it was renewed upto the date the construction was started. He denied the suggestion that he had no permission for reconstruction when the present case was filed. He further admitted that he cannot produce the same now. The original approved plan was never produced in evidence but only the certified copy of the same was produced on record which shows that it was obtained on 6‑8‑1977. The endorsement on the back of approved plan further shows that it was approved under Article 67 of the Karachi Development Authority Order of 1967 subject to the terms and conditions contained in the accompanying Letter No. AC DP/203/62, dated 18‑10‑1962. The letter accompanying the approved plan which is a sanction, was not produced in evidence in spite of suggestion in' cross‑examination by the appellant that the respondents did not possess any sanction from the competent authority. Even, during the course of proceedings of first appeal and the second appeal in this Court, respondents made no attempt to produce the same. It may also be mentioned here that the ejectment application was dismissed by the Rent Controller on 15‑8‑1978 and during the pendency of the appeal before the first appellate Court on 3rd of March, 1979 Sind Building Control Ordinance, 1979 was promulgated which provides that no building shall be constructed unless plans are approved in the prescribed manner by the Authority on payment of prescribed fees and in cases where the construction of building had started before coming into force of the Ordinance, the authority's approval of the plan and no objection certificate shall be obtained not later than six months of the enforcement of the Ordinance. I inquired from the learned counsel for the respondents if the respondent had obtained the required approval under section 6 of the Building Control Ordinance, 1979, but he was unable to make any statement in this behalf. In view of the fact that the respondents failed to prove or bring on record at any stage of the proceedings the sanction accorded by the competent authority for the reconstruction of the premises the first appellate authority could not grant the ejectment on the ground of reconstruction. The respondents besides the original sanction of plan also failed to produce the approval of Building Control Authority which is now necessary after the enforcement of the Ordinance of 1979. In these circumstances, the ground of reconstruction of premises would have failed but keeping in view the fact that the ejectment case was instituted in the year 1974 while the building plan was approved in the year 1962, I am inclined to remand the case to the Rent Controller to allow an opportunity to the respondents to lead evidence to establish that on the date they instituted the application they had in their possession a valid sanction for reconstruction of the premises which was renewed from time to time and that after the enforcement of Ordinance of 1979 they also obtained necessary approval from the Building Control Authority for reconstruction in this regard.

9. The first appellate authority also allowed the ejectment on the ground of additions and alterations in the premises by the appellant which allegedly impaired the value and utility of the building. It is not disputed that the respondents have already demolished and reconstructed a part of the building and they will also demolish and reconstruct the portion occupied by appellant if they succeeded in ejecting him. This will naturally require demolition of existing building in possession of defendant including the alleged additions and alterations made by the appellant in the building. The evidence produced in this regard by the respondent consists of only oral assertion made by his witness. No documentary evidence was produced to show the original construction of the building and the alleged additions and alterations made therein. No expert evidence was produced in support of the alleged impairment of the value and utility of the building on account of alleged additions and alterations. However, as I am sending the case back to Rent Controller for reconsideration on the ground of reconstruction of the premises, which was the main ground of ejectment, in the case, I leave it open for him to reconsider this ground as well and allow opportunity to both the parties to lead further evidence if they so desired. I accordingly accept this appeal, set aside the order of first appellate authority and remand the case back to the Rent Controller for fresh decision in the light of the observations made above. There will be no order as to cost. M.Y.H Case remanded