1988S15 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought in these two petitions arising out of a rent matter; wherein the Lahore High Court has, vide its judgment dated 17‑5‑1987 while affirming an appellate judgment against the petitioner/ tenant, dismissed two Constitutional Petitions filed by him. He has been ordered to be evicted from a non‑residential property on two grounds, of reconstruction and requirement of the respondents/ landlords. Learned counsel has contended: that the landlord had got vacated several shops belonging to them and had rented them out at different times up to May 1984 therefore, then could not have sought petitioner's eviction through the application filed on 10‑12‑1984; that similarly they had reconstructed several shops and had rented them out to other tenants prior to the filing of the application; that although it may be possible to say that the two grounds of reconstruction and personal requirements are not mutually destructive, the fact remains that when a landlord succeeds on both, the provision conferring right on the tenant to seek re‑entry under certain new conditions, is rendered nugatory‑‑in this behalf he brought to our notice Dawood v. Muhammad Yasin P L D 1982 S C 227, which goes against his contention. He, however, submits, that it resolved only a part of the controversy; and that lastly, notwithstanding the fact that the landlord has the right to develop his property in the manner he likes, he cannot be permitted to do so in such a manner as to destroy the rights of the tenant‑‑he pointed out in this behalf that the eviction of the petitioner was sought earlier also in 1972 and 1979 on ground of default in payment of rent with the result that one matter was dismissed on technical ground and the other was compromised on enhancement of rent. He also argued that even if the foregoing arguments on legal points fail, the fact that the landlords are owners of many properties and they have rented them out after reconstruction, their case on question of personal requirement therefore is not bona fide. After hearing the learned counsel at length, we do not find any force in his contentions. The record has been read with his help. In some instances of re‑letting or reconstruction, even the year is not mentioned. It could be much before 1984. In one instance A it is May 1984 while the application for eviction was filed in December 1984. It cannot be denied that there is no legal bar to the landlord pressing grounds of reconstruction and/or requirement if other premises were rented out prior to the application, though depending upon the circumstances of each case, the gap of time between the two events might reflect on the bona fides of the landlord. The learned counsel not being able to controvert this legal position, raised a technical objection that any renting out after an order of eviction after 1959 or without such an order, would be a bar to the application for eviction on ground of requirement. This question has already been sent at rest. The relevant provisions in Section 13(3) of the Urban Rent Restriction Ordinance, 1959, to the effect that the landlord "has not vacated such building or rented land without sufficient cause after the commencement of this Ordinance in the said urban area", does not convey that even if it was vacated say in 1962 i.e., a quarter century ago, it would be a bar. There must be a nexus bona fide‑wise and time‑wise between the previous vacating of such property and the present demand and ground of requirement. See for example, Haji Ghulam Mohammad v. Abdul Qadir P L D 1975 Lah.

200. However, even when the said provision is attracted in its strict sense, the conditions therein had to be satisfied before a bar could be spelled out. For example, it is necessary to establish that the landlord was himself in occupation and it was not already with a tenant. Moreover, the question of sufficient cause for vacating the property would also have to be gone into. See Muhammad Sadiq v. Mst. Maryam Bibi 1975 S C M R

111. In this case only one property was in the occupation of the landlords and it was a factory and the bar could not be applied to it. In any case, sufficient cause was shown by the landlords for vacating the same as they having suffered loss in the business, closed it. This was the very property which was vacated in May 1984. Therefore, the bar would not apply in this case. Out of the other properties which were with the tenants only one was rented out to the tenants after reconstruction in 1983. It is clear from the record that the requirement of the landlords emerged in December 1984 therefore the renting out of earlier in 1983 any of similar properties would not create a legal bar. In any case, it has not been shown that the said property was occupied by the landlords before the reconstruction and/or that they vacated the same without sufficient cause. See Haji Muhammad and others v. Muhammad Rafique and another 1980 S C M R 2 and Sardar Khan v.Riaz Ahmad and others 1986 SCMR 1981. Regarding the ground of reconstruction the argument in any case would not be attracted because the provision in that behalf is not controlled by a similar condition regarding vacating of such property earlier. The next argument of the learned counsel that notwithstanding the two grounds of reconstruction and personal requirement not being mutually destructive, the rights of the tenants created by the statute could not be enforced in case eviction is allowed on both the grounds is also without force. This very controversy has already been resolved in the case of Dawood P L D 1982 S C 227 cited by him. Following observations at pages 229/230 of the report are relevant in this behalf "The foregoing analysis of provisions contained in subsection (4) read with section 13(3)(a) and subsections (5), (5‑A) and (5‑B) read with subsection (2)(vi) of section 13 of the Ordinance clearly shows that in case of eviction on ground of personal use, the property would normally be occupied by the person concerned (the landlord, child or children) within one month of the relevant date, and if this is not done, the tenant would be entitled to seek restoration of possession. In a case where the other person occupies the building within one month but it is re‑let within two months, even then the tenant would be 'entitled to seek restoration of possession. Thus the tenant's interest would remain protected for a period of two months if the eviction is under subsection (3) of section 13 of the Ordinance. This period is much more if the eviction is under clause (vi) of subsection (2) of section 13, i.e. four months (for demolition) and two years thereafter (for purpose of reconstruction /erection). The landlord, who has not contravened subsection (4), vis‑a‑vis the ground of eviction relatable to personal use of the property which has already come under his occupation or that of his child/children, would be required to demolish the building within a short period of occupation (which would not exceed four months from the date of taking of possession) for purpose of satisfying conditions regarding eviction on ground of reconstruction. Undoubtedly if the building plans are such that after the occupation if the property occupied has been vacated for purpose of construction, this would not mean any contravention of any of the provisions of section

13. The landlord would be entitled within a period of next two years to complete the building even if during this period he remains out of occupation of the whole or part of the property. Thus the question of penalty provided in subsection (5) and consequences of conviction which would benefit the tenant under subsection (5‑A) would not arise. The only question which remains to be examined is whether subsection (5‑B) which protects the interest of the tenant after the building is completed, presents a difficulty indicative of any clash between the interest of the landlord and tenant on account of the eviction being on both the grounds, namely, personal use and reconstruction. The seeming clash which was highlighted in the Peshawar judgment in the case of Sheikh Muhammad Yusuf would on proper scrutiny, be found to be unreal. These provisions show (if the foregoing analysis is kept in view, according to which in a normal case), that the property, having already been occupied from the side of the landlord on ground of personal use, has already been reconstructed /erected thereon in satisfaction and pursuance of subsection (5). For occupying it if the tenant makes an application, he would not be able to satisfy the essential condition that no one else should by that time have come in occupation. The person occupying from the side of the landlord would be in lawful occupation in both cases if after occupying the original premises within a month of the relevant date he continues in physical possession and/or having occupied the premises vacates the same temporarily for purpose of demolition, reconstruction or erection of building. Thus the essential condition of subsection (5‑B) of section 13 would not be satisfied insofar as the application of the tenant is concerned provided if the landlord has already fulfilled the essential condition under subsections (4) and (5). On the other hand, if the relevant condition(s) under the said provisions have not been satisfied by the landlord, the tenant would not only be entitled to seek a remedy(s) under the said provision(s) but also in case of completion of the building would be entitled to seek the protection of his interest under subsection (5‑B): Looked at from whatever angle (a) of principle, which, as would be shown presently, already stands settled in several rulings of the superior Courts, and also (b) of interpretation and analysis of the relevant provisions of section 13 of the Ordinance, the eviction of a tenant on both the grounds of personal requirement and reconstruction in same proceedings, would not be illegal, as the two grounds are not mutually destructive." The last argument of the learned counsel relates to the findings of fact and the High Court after careful examination of the relevant material, in our view came to correct conclusion that the decision by the appellate Court on questions of reasonable need for reconstruction and bona fide personal requirement were unexceptionable in law/principle and facts and no justification was made out for inteference in the writ jurisdiction of the High Court. The earlier two applications B filed by the landlords on grounds of default in payment of rent in the circumstances of the case do not in any way render their demand regarding personal requirement as other than bona fide. Similarly, the fact that the landlords rented out several properties after the reconstruction does not on the facts of this case, show that they were not acting bona fide. As the result finding no force in these petitions, the same are dismissed. Learned counsel for the respondents on undertaking by the learned counsel for the petitioner after consulting his clients that vacant possession will be handed over to the respondents without any further notice and execution proceedings, agreed that four months time be allowed to the petitioners in this behalf for vacating the property. Order accordingly. S.Q./M‑246/S Petitions dismissed.