2012SCMR854 (PLP)

ANWAR ZAHEER JAMALI, J.

On 20-3-2007, petitioners Muhammad Ajmal Khan, Muhammad Nawaz Khan and Amjad Ali Khan all sons of Rashid Khan had jointly instituted an eviction application under section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 ("the Ordinance 1959) against respondent No.1 Rashid Shafique for his eviction from two rented shops in his possession, as detailed in the title of the. ejectment application and the site sketch annexed with the said application. The ejectment of respondent No.1. was sought by the petitioners on two grounds. Firstly, that the whole building wherein two rented shops were located was required by them for the purpose of its demolition and reconstruction, regarding which necessary permission and approval of building plans was obtained by them from the competent authority. To fortify this ground, copy of permission No.201 dated 26-9-2006 was also annexed with the ejectment application filed before the Court of Rent Controller, Peshawar. Secondly, that after reconstruction, the whole building, major portion whereof was already if their possession, including two rented shops and another shop at the ground floor, were required for their personal bona fide need.

2. In his written objections, respondent No. 1 strongly questioned the claim of the petitioners on both the grounds, and alleged that the eviction application was mala fide as property was neither required by the petitioners for demolition or reconstruction nor for their personal bona fide need as the building was in good condition and two of the petitioners were already settled abroad.

3. After recording of evidence and completion of other formal proceedings, the said ejectment application of the petitioners was dismissed by the Rent Controller, vide her judgment dated 25-6-2010, as she came to the conclusion that no cause of action has accrued in favour of petitioners for filing such eviction application as their claim for demolition and reconstruction of the building was not bona fide. It was further held that plea of personal need was not bona fide as two of the petitioners were settled abroad.

4. The judgment of the Rent Controller Peshawar, was challenged by the petitioners before the Court of Additional District Judge-IX, Peshawar, but unsuccessfully, as he dismissed their appeal, vide his judgment dated 22-1-2011 for the reasons that the petitioners had no cause of action for filing the eviction application as their claim of personal bona fide need and reconstruction was not bona fide. The appellate Court further held that expiry of period of permission for reconstruction accorded by the Town Municipal Administration, which was admittedly not renewed by the petitioners had further disentitled them for an order of eviction against respondent No. 1.

5. The last attempt of the petitioners to seek requisite relief by way of filing of Writ Petition No.1347 of 2011 against the findings of the Rent Controller and the Appellate Court against them, also met with the same fate when the Peshawar High Court, Peshawar, vide its judgment dated 8-6-2011, dismissed their writ petition.

6. We have heard the arguments of learned counsel for the parties and perused the case record, which reveals that petitioners have categorically urged the ground of demolition of existing building and its reconstruction as a whole, including the area of two shops in possession of respondent No.1, and in support of their plea they had also produced before the Court of Rent Controller Peshawar, the requisite permission for construction and building plans, approved by the competent authority. Similarly, in support of their claim of personal bona fide need of the building after its reconstruction, the petitioner No. 1 Muhammad Ajmal Khan appeared in the witness box in his personal capacity as well as attorney of the other two petitioners and deposed in unequivocal terms about the need of whole reconstructed building for their personal bona fide need. Such statement of petitioner No. l on oath not only remained ' consistent with the assertions made in the eviction application, but it also remained un-shattered in the cross-examination. However, to their misfortune, the fact that two other shops were lying vacant in the same building, which were not let out by them since long and as such should have been taken as a positive factor in their favour to prove their bona fide, was considered as negative factor to conclude that the eviction application on the ground of' personal need was not bona fide. Similarly, other claim of petitioners for eviction of respondent No.1 on the ground of reconstruction of the building as a whole was turned down by all the three Courts below on the fallacious ground that such permission earlier accorded by the competent authority had expired during the pendency of the proceedings before the Court of Rent Controller as it was not got renewed. In our opinion, once the petitioners have obtained approval of their building plans and permission for reconstruction of building from the competent authority they were not required to get it renewed again F and again till the final eviction order was passed and they were able to secure the possession only to prove their good faith. In this regard, the intention of legislature is very much clear from the simple reading of the relevant provisions of section 13(2)(vi) of the Ordinance of 1959, which makes it obligatory for the owner/landlord of the building to obtain necessary sanction for the said reconstruction or erection from the Municipal Corporation, the Municipal Committee, the Town Committee or the Provincial Urban Development Board, as the case may be, at the C time of filing of eviction application or even during its pendency, but do not require it to be got renewed again and again before starting the actual process of reconstruction of the building after obtaining its physical possession from the tenant. In the present case, admittedly some portion of the building was in possession of the tenant/respondent No.1, therefore, it was not possible for the petitioners that they could demolish the whole building and start with the process of its construction. We are, therefore, constrained to observe that the Courts below fell in grave error of law in accepting the plea of mala fide introduced by respondent No.1/tenant in this regard, as irrespective of present condition of the building, it was again sole prerogative of the owners of a building/landlords to decide whether they want to demolish and reconstruct it as per their choice and suitability or not. For this purpose neither the Rent Controller nor the tenant has any say in the matter. Even in a situation where the present structure of the building is habitable, it is still the choice of the landlord to demolish and reconstruct it as per his suitability and need, therefore, a tenant cannot validly resist his eviction on such ground. A perusal of site plan of the existing building annexed with the eviction application reveals that two small shops in the building are in possession of respondent No.1, while another shop of almost similar size is in possession of one Muhammad Ismail, and other major portion of the ground floor and upper floors of the building are stated to be in the exclusive possession of the petitioners. In this factual background, which is not disputed, it is unconceivable and hard to believe that eviction application filed by the petitioners on the ground of reconstruction was mala fide, as they have to demolish not only the two shops in possession of respondent No.1, but also other portions of the building, including the vacant shops in their possession. The availability of two other vacant shops with the petitioners might have been a relevant factor if during the pendency of these eviction proceedings they had let out those shops to any third party, which admittedly is not the position in this case. In so far as the plea of personal bona fide need of the petitioners is concerned, consistent statement of petitioner No.1 on oath, un-shattered in the cross-examination, was more than sufficient to show their bona fide and answering the issue of personal need in their favour. Similarly, mere fact that two of the petitioners were abroad since long was no ground for questioning their bona fide. If any case-law is needed to fortify this' view, reference can be made to the cases of Toheed Khanam v. Muhammad Shamshad (1980 SCMR 593) and Fazal Azim v. Tariq Mahmood (PLD 1982 SC 218). In addition to it, it will be pertinent to mention here that by virtue of section 13(4) and (5) of the Ordinance of 1959 sufficient safeguard is provided to protect the interest of a tenant in both the situations, when the eviction is sought by the landlord on the ground of reconstruction or personal need and he fails to meet the requirement of these penal provisions. The Rent Controller and the appellate Court thus could not have arbitrarily proceeded to form a, contrary view regarding the reasonableness, good faith/bona fide of the landlord, overlooking these provisions of law.

7. As a sequel of above discussion, this petition is converted into appeal and allowed. Consequently, impugned judgment of the High Court, in Writ Petition No.1347 of 2011, dated 8-6-2011, the judgment of the Court of Additional District Judge No.IX, Peshawar in Rent Appeal No.61 of 2010 dated 22-1-2011 and that of the Rent Controller, Peshawar in Rent Case No.61/R.C. dated 25-6-2010 are set aside and eviction application of the petitioners is allowed, on both the grounds of reconstruction and personal need.

8. As the rented premises in possession of respondent No.l are commercial in nature, three months time is allowed to him from today for vacating and handing over its actual physical possession to the petitioners. In case respondent No.1 fails to vacate and hand over actual physical possession of the rented shops on or before the expiry of three months period, the Rent Controller shall issue writ/warrant of possession with police aid, without any further notice to him. M.W.A./M-22/SC Appeal allowed,