P L D 1975 Lahore 594 (PLP)

(3) In case it is found that structure was raised by the respondents, are they liable to ejectment as a result of the order of the Rent Controller or by some other forum? (4) Whether the respondents are defaulters? (5) Whether the respondent is liable to ejectment on the grounds men tioned in para. 5 of the petition? O. P. A. All the said issues were found against the appellant and ejectment order was passed against her. Her appeal before the lower appellate Court was also dismissed.

3. Both the Courts below have come to the conclusion, with regard to issues Nos. 2 and 3, that the structure over the plot in question existed already and the appellant only effected certain repairs after she, alongwith her husband, occupied the same. The plea of the appellant, that she alone had raised the structure existing at present in place of the demolished one was not accepted As far the relationship of landlord and tenant between the parties with regard to the plot of land was concerned, it was never denied by the appel lant. The learned counsel for the appellant has tried to argue on the basis of the evidence produced by the parties that the structure in question was actually raised by the appellant as well as her deceased husband. I am afraid, the conclusion arrived at in this regard by both the Courts below is a finding of fact and it is not possible in the present proceedings to reappraise the evidence. It is possible that after re-appraisal of the evidence a different conclusion may be arrived at, but the same is not permissible under the law.

4. So far issue No. 5, relating to the reconstruction of the house after demolition is concerned it has also been found against the appellant and in favour of the respondent. Reliance has been placed by both the Courts below upon the copy of the plan Exh. A. 2, sanctioned by the Municipal Corpora tion on 28-5-1964. The present ejectment application was filed when the plan had not been sanctioned. The relevant provision in this regard is contained in section 13(2) (vi) of the West Pakistan Urban Rent Restriction Ordinance, 1959. It lays down that a landlord who seeks to evict his tenant on the ground of reconstruction of the very premises after its demolition shall` prove that the building or rented land is reasonably and in good faith required' by him for the reconstruction or erection of a building on the site and he has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee, for the area where such building or rented land is situated. It means that at the time when the application was made for the ejectment of the tenant necessary sanction for the reconstruction of the premises should have been obtained by the landlord, otherwise he could not have any cause of action in this regard. As discussed above, in the present case the necessary sanction was granted much after the institution of the ejectment application and as such the reasons as given in pica. 5 of the ejectment application for the eviction of the appellant were not available to the respondent -at the relevant time and his application was not maintainable on that ground.

5. The learned counsel for the respondent has argued that the building plan which was rejected by the Municipal Corporation stood sanctioned by the order of the Commissioner, Lahore Division with effect from the date when it was passed i.e, 20-9-1962, and since the ejectment application was filed in February 1963, therefore the reasons as given in para. 5 of the eject ment application were available to the respondent. To appreciate this contention, it is necessary to examine the order of the Commissioner, copy whereof has been placed on record as Exh. A.

4. According to the said order the Chairman recommended to the Municipal Corporation that the lease of the open channel for flood water, running nearly through the middle of the property and carrying the flood water across, be given to the respon dent on certain conditions. The recommendation was however rejected by the Corporation and the building plan was accordingly not sanctioned. The learned Commissioner while accepting the appeal observed that the proposal to rebuild two cinemas into first rate air-conditioned and fully equipped sound proof ones instead of present unsightly structures appeared to be a good one and deserved a favourable consideration. He thought that there was every reason for the acceptance of the Chairman's recommendation and 99 years' lease be granted to the respondent on the conditions proposed by him subject to the further condition that all maintenance and ancillary expenses would also be borne by the respondent. He further observed that apart from that he would commend to the Corporation for approval of any sensible plant which the respondent firm may submit diverting the storm water channel to run on a side of their plot at their cost. It was further observed by the Commissioner that so long as the right of easement for passage of water was acknowledged and safeguarded in building plan, there should be no objection even to diversion of the channel in a reasonable manner to the verges of the plot, if that would save excessive costs of construction, e.g. of the two cinema buildings, without endangering the flow of rain water across the plot.

6. The observations made by the learned Commissioner in his order would show that the appeal was accepted in the terms as stated above. The building plan which was rejected by the Corporation was not accepted or directed to be sanctioned in its form in which it was submitted, rather on the contrary certain guidelines were suggested and in the light of those the building plan was to be sanctioned by the Municipal Corporation. Certi fied copy of the plan shows, as mentioned above, that it was sanctioned on 28-5-1964. Further subsection (1) of section 77 of Municipal Administration Ordinance, 1960, lays down that a Municipal Committee can, for reasons to be stated in writing, reject a site plan or building plan. Since the building plan was rejected without giving any reasons, therefore, the learned Commis sioner discussed the merits and demerits of the case and sent the same back to the Municipal Corporation for deciding the same afresh in the light of the observations made by him. In this view of the matter the contention of the learned counsel for the respondent that the building plan stood sanctioned by the order of the Commissioner has no force. It was actually sanctioned later on and the above discussion would show that at the time when the ejectment application was filed the plan had not been sanctioned.

7. It has also been contended by the learned counsel on the basis of the language used in subsection (2) of section 13 of the Urban Rent Restric tion Ordinance that sanction of the plan is not a pre-requisite for filing ejectment application and the same can be obtained at any time before the Rent Controller, after giving the tenant a reasonable opportunity of showing cause against the appellant, decides the application. I am afraid, the interpretation put by the learned counsel on the said provision is fallacious. There is no doubt that the Controller has to be satisfied with regard to the bona fide requirement of the property for reconstruction and sanction of the building plan, after due notice to the tenant, but that does not mean that without obtaining the necessary sanction of the plan an ejectment application can be fled. The sanction of the plan is very much a pre-requisite to the bona fide requirement for reconstruction purposes, otherwise there was no use for laying down this condition and it could be laid down that mere satisfaction of the Controller with regard to the bona fide requirement of the landlord for reconstruction purposes was sufficient. A person who seeks ejectment of his tenant on the basis of reconstruction of the property has to show his bona fides with regard to his plea of reconstruction of the property and if a plan has not been sanctioned by that time bona fides of his plea cannot be accepted. A landlord is required to put his complete case in his ejectment application and in the absence of the plan having not been sanctioned it cannot be said that necessary cause of action has accrued in his favour in regard to the ground made available to him under clause (vi) of subsection (2) of section 13 of the Ordinance and his application as such would be premature and will not be maintainable.

8. The learned counsel for the respondent has further relied upon an unreported judgment in M Irshad v. Guarantee Life & Employment Insurance (S. A. O. No. 276 of 1966), passed by my learned brother Muhammad Afzal Zullah, J. on 19-6-1974 to order to show that order of ejectment passed by the learned Additional District Judge on -similar facts and circumstances in the said case has been upheld by the High Court. I am afraid, the facts, so far as S. A. O. No. 276 of 1966 is concerned, are quite different from the facts of the present case. In that case the only point for adjudication urged before the High Court was that the Additional District Judge, who had decided the first appeal was not competent to decide the same, as according to the appellant in the said case the notification appointing the Additional District Judges as appellate authorities under Amending Ordinance No. XXI of 1966 was not applicable to the said Additional District Judge. The question as to when the building plan was duly sanctioned by the Municipal Corporation was never involved in that case.

9. The issue with regard to default, as is apparent from the order of the learned Rent Controller, was never pressed and that is why there is no finding by the learned Additional District Judge also with regard to it. The statement of the appellant was recorded by the Rent Controller on 22-6-1966, whereby she admitted that she had not raid the rent for the last seventeen months, meaning thereby that she stopped paying rent after the institution of the ejectment application. There is nothing on record to show, so far as the evidence of the respondent is concerned, that she ever defaulted in the payment of rent. In this view of the matter, it cannot be held that she was a defaulter at the time when the application for her ejectment was filed.

10. The learned counsel appearing on behalf of the appellant has con tended that since the premises in question is predominantly residential, therefore, its character cannot be changed into that of commercial building without the permission of the Rent Controller under section 11 of the Ordinance. I have carefully examined the statement of the appellant herself, as referred to above. She has admitted that a shop has been raised by her consisting of three rooms, two of which are used for business purposes, whereas the third one is occupied by her for residential purposes. It means that the property is predominantly commercial and not residential. This being the position I don't think that any permission is required from the Rent Controller for changing its character.

11. In view of my findings on issues Nos. 4 and 5, the appeal is accepted with costs and the impugned orders passed by the learned lower Courts are hereby set aside. K. B. A. Appeal accepted