1985 PLP 839 (CLC)

The respondent filed an application for ejectment against the appellant in respect of two shops on Plot No.979 Block 3, Liaquatabad, Karachi. It was alleged that the appellant was to pay rent @ Rs.45 p.m. on the first of every calendar month, but he has neither paid, nor tendered rent from November, 1973 to January, 1974. It was further alleged that the plot of land is a residential one but the appellant has converted it into a shop with the promise and clear understanding that the arrangement was temporary and he would vacate when the applicant started construction of the house. The respondent has obtained an approved plan for constructing a building and she requires it for reconstruction. By the impugned order the learned Controller held that the appellant has defaulted in payment of rent. It was also held that the respondent bona fide and in good faith requires the premises for construction and the appellant was ordered to vacate the premises. Mr. Mushtaq Memon the learned counsel for the appellant contended that the respondent has failed to establish that he requires the premises bona fide and in good faith for construction of the building. In this regard the learned counsel asserted two facts namely that the respondent has no means and funds to raise building and secondly that there are two other tenants in the premises and unless they have vacated the premises even if the appellant vacate the shop, it will not be possible to reconstruct the building. So far the first contention is concerned, it is true that the respondent's husband who was alive at that time, stated that he being a retired person earns Re.1 or 2 per day from a small shop he was running. There is no other evidence that finances have been made available but the respondent's witness did state that he would apply for loan to the House Building Finance Corporation. In this regard Mr. Nadeem the learned counsel for the respondent referred to Habibullah Khan v. Maqbool Ahmed 1981 C L C 761, where it was held that "the question of availability of funds and sources in the modern times has no bearing or effect on the bona fide and good faith of the landlord as it is possible for a landlord to obtain loans for such purpose from various organisations, like House Building Finance Corporation, Banks etc., and furthermore this condition has not been laid down in section 2(vi) of the Ordinance". In view of the statement made by the respondent's attorney that he will apply for loan to the House Building Finance Corporation, in my opinion, the poverty of the respondent cannot defeat the bona fides. The learned counsel for the respondent has very vehemently argued that as other tenants of the premises have not been evicted the order of ejectment even if granted will not enable the respondent to construct the house, till such time other tenants also vacate the premises. In this regard the learned counsel also referred to 1979 C L C

164. This case is distinguishable on facts, because there one mortgagee was in possession of a part of the premises i.e. a shop and no ejectment proceeding was started against him. It was therefore, observed that it was not possible to obtain possession from a mortgagee without recourse to law. If a building is occupied by several tenants, and the landlord wishes to reconstruct it and files ejectment case against one tenant only then unless the landlord proves that the other tenants have agreed to vacate or that proceedings against all the tenants has been initiated or that according to the approved plan it is possible to construct the building in phases even without ejecting other tenants it may not be possible to grant ejectment as the landlord's action against one of the tenants adversely reflects upon his bona fide and good faith. However, it will be a dangerous precedent to lay down that unless all the remaining tenants have been evicted ejectment order cannot be passed against a tenant. In the present case the respondent has stated that other two tenants have promised to vacate the premises when she starts construction. There is nothing on record to show that assurance given by other tenants is incorrect, or they will resile from their undertaking. On the assumption that the other tenants will not vacate the premises, it is not possible to stay the proceedings, or to reject the ejectment application. The requirement under section 13(2) (vi) of Sind Urban Rent Restriction Ordinance is that the landlord should establish his bona fide and good faith for reconstruction of the building and that there should be an approved plan for the building he requires to reconstruct. Once plan has been approved and bona fide as stated above has been established, there should be no impediment in grant of order of ejectment. The ground that other tenants have not been evicted can be pressed in service for granting time for vacating the disputed premises. Mr. K.M. Nadeem the learned counsel for the respondent has further contended that in view of protection granted under section 13(5) of the Ordinance bona fides of the landlord is not relevant in granting ejectment under section 13(2) (vi). The learned counsel has relied on Mls. Ameer Din Allah Ditta v. Seth Adamjee Abdullah and others 1969 S C M R 131 where following observation has been made:- "The argument that the respondent's requirement of the new building was neither reasonable, nor bona fide was not relevant to the disposal of the ejectment petition filed under section 13 (2) (vi) of the Ordinance aforesaid. The penal provisions contained in subsection (5) of section 13 of the Ordinance afford an adequate safeguard against a landlord acting in bad faith." Further in Haji Allah Ditta v. Shahzadi Bilquis and another 1980 S C M R 41 it was observed:- "The mere fact that the landlord is willing to demolish the old building and invest a large amount of money in constructing a new one, notwithstanding the tremendous increase in the cost of construction, and the fact that he is willing to undergo imprisonment on his failure to demolish the building or to construct it within a specified period is sufficient to establish his bona fides." Putting the present case to the test laid down by the Supreme Court in the aforestated authorities, it is clear that the bona fides and good faith of the respondent cannot be doubted. The respondent has obtained an approved plan from the relevant authorities, and is ready to invest the amount for construction, and face the penal consequences in case he fails to reconstruct the building, therefore, impugned order cannot be disturbed. Mr. Mushtaq Memon then contended that the findings of the learned Controller that the appellant has defaulted in payment of rent is misconceived The respondent has claimed default for the months of November, 1973 to January, 1974. According to the appellant the respondent by notice dated 7th November, 1973 called upon him to vacate on 21-11-1973. Thereafter, the appellant tendered rent to the respondent's husband as usual for the month of November, 1973. This was refused by the respondent and the appellant then remitted rent for the months of November and December, 1973 through money order, and thereafter on 31-1-1974 he filed an application for deposit of rent, and in regularly depositing. The learned Controller came to the conclusion that although the appellant had pleaded that the rent for 2 months has been paid by money order, no documentary evidence or money order receipt has been produced. According to the appellant these receipts were filed in the Miscellaneous Rent Case. This file was summoned by the learned Controller and it is alleged that after the impugned order was passed the appellant has found out that pages 16 and 17 are missing. These were the alleged receipts which had been filed by the appellant. The appellant has annexed with the memo. of appeal, a photo copy of the receipt of remittance of Rs.90 to the respondent as Annexure 'B'. This amount was remitted on 12th January, 1974. This statement of the respondent has not seriously been challenged in cross examination. Considering the fact that some material evidence has been removed from the Court file and its photo copy has been produced which though made part of the memo. of appeal, no objection was raised by the other side, I am inclined to accept that money order was remitted on 12th January, 1974 towards the rent for November and December. This according to the respondent was refused, and thereafter, the rent was deposited in Court. Considering the facts and circum stances, in my opinion no default has been committed. However, on the ground that the appellant requires the premises for bona fide need and in good faith for reconstruction of the building no exception can be taken to the ejectment order passed by the learned Controller. The appeal is therefore, dismissed. The appellant is permitted to hand over vacant possession of the disputed premises to the respondent on or before 31-12-1984. M.I. Appeal dismissed.