1980 PLP 969 (SCMR)

DORAB PATEL, J-‑The respondents are the owners of a property in Mardan, which consists of at least two shops and considerable open space, but learned counsel is not able to give us any particulars of the size of the property in dispute owned by the respondents. Be that as it may, one of the two shops on the property was leased by the respondents in 1964 to the petitioner. However, in 1973, they filed an eviction application against the petitioner for his eviction on the ground that they wanted to develop their property. Learned counsel stated that similar applications had been filed against the tenant of the other shop and one Barkat Shah, who was the lessee of some open space on the property in dispute. The petitioner as well as these other tenants contested their eviction and submitted that the respondents were not entitled to evict them because they did not need the demised premises reasonably and in good faith for reconstruction, 1'he Rent Controller, however, allowed all the eviction applications including the eviction application against the petitioner, Therefore, the petitioner challenged the Rent Controller's order in an appeal in the District Court, Mardan, which was heard with the appeals filed by the two other tenants of the respondents. The petitioner's appeal was allowed by an Additional District Judge on 20‑2‑1979 on two grounds, The first was that the change "in the nature of the construction would not lead the suit premises available to the respondents for running the present business' . We may explain here that learned counsel admitted that the respondents wanted to construct a multistoried building, and, according to their building plan, as the staircase for the upper floor would pass through the area where the shop demised to the petitioner is now situated, the petitioner could not, after reconstruction, be reinstated in the precise area on which his shop is now situated, therefore, the learned Additional District Judge held on the basis of a judgment reported in Bashir Hussain and another v. Sh. Muhammad Screed and two others (P L D 1976 Lah. 1095) that the respondents had failed to, prove that their requirement for reconstruction was in good faith. The learned Additional District Judge then pointed out that he bad allowed the appeals filed by the other two tenants against the orders of the eviction passed against them by the Rent Controller, and as he had held that the eviction application against Barkat Shah was vitiated by mala fides, this finding reacted against the respondents in all the eviction applications including the eviction application against the petitioner. Accordingly, on these two grounds, he set aside the Rent Controller's order of eviction. The respondents challenged the order of the Additional District Judge in a second appeal in the Peshawar High Court, and as the learned Judge was satisfied that the respondents intended to develop their property he allowed their appeal by his judgment dated 3‑3‑1980. Hence this petition for leave. Learned counsel's first submission was that the question whether the respondents had proved that their requirement for reconstruction was reasonable and in good faith was a question of fact and as the first appellate Court had, in the exercise of its discretion set aside the Rent Controller's finding on this question of fact, the further submission was that the High Court was not competent in a second appeal to interfere with the first appellate Court's appreciation of evidence. The argument is fallacious for more reasons than one. In the first place, the question whether the respondents proved that their requirement was reasonable and bona fide was a mixed question of law and fact. Secondly, one of the two grounds give by the learned Additional District Judge for setting aside the Rent Controller's order against the petitioner was that he had set aside similar orders passed by the Rent Controller against the two other tenants of the respondents, one of whom was Barkat Shah. And, in the appeal of Barkat Shah, the Additional District Judge had given a finding of mala fides against the claim of the respondents, therefore, he had further held that this reacted against the bona fides of the respondents in their claim against the petitioner also. But, the respondents had filed an appeal in the Peshawar High Court against the judgment passed against them by the Additional District Judge in Barkat Shah's appeal and as this appeal was allowed by the Peshawar High Court, 'Barkat Shah had filed a petition for leave in this Court, but, as this Court refused leave by its order dated 6‑5‑1980, it is obvious that one of the two grounds on which the first appellate Court reversed the Rent Controller's finding, was totally erroneous. The other ground given by the Additional District Judge for allowing the petitioner's appeal was the judgment of the Lahore High Court reported in Bashir Husmin's case, but the view taken in this judgment is not in accordance with the law declared by this Court in Abdul Bari v. Khadim Hussain (PLD1978SC78) and in Ghulam Nabi v. Mushtaq Ahmad C. P. S. L, A. 15‑P of 1980. Further, the Lahore case was not followed by this Court in Ghulam Nabi's case, therefore, this submission of learned counsel is also devoid of merit. Mr. Fazal Ilahi's only other submission was that the premises had bee constructed in 1963 and were not dilapidated and were in good condition, therefore, the respondents were not entitled to evict the petitioner. Now, even if the premises be in good condition, it is very clear that the reconstruc tion would involve a substantial development of the property of the respondents, and the accommodation available after reconstruction would be far more than the present built up area of the property. Therefore, on the view taken by this Court in Abdul Bari's case and in Ghulam Nabi's case, the respondents have proved that they required the demised premises reasonably and in good faith for the purpose of reconstructing them. The petition is without merit and is dismissed, but we give the petitioner four month time to hand over vacant possession of the demised premises provided he continues to deposit the monthly rent. Petition dismissed.