2006 PLP 2198 (YLR)

IJAZ-UL-HASSAN KHAN, J.--This appeal under section 24 of the Cantonment Rent Restriction Act, 1963 is directed against the order, dated 12-4-2005 and interim order, dated 23-11-2004, whereby learned Rent Controller, Nowshera, passed eviction order against appellants and directed for handing over the vacant possession of the shops in question to respondents, within thirty days from the date of announcement of order.

2. The relevant facts are, that Momin Khan and his brothers, respondents herein, filed eviction petition under section 17(2)(i)(vi) of Cantonment Rent Restriction Act, 1963, in the count of Rent Controller, Nowshera, against Sher Muhammad and others, appellants herein, on the grounds of default in payment of rent from 1-5-2003 to 30-10-2003, at the rate of Rs.270 per month and reconstruction of the premises in question i.e. Shops No.4-5 AB, Framji Building, G.T. Road, Nowshera Cantt.

3. The ejectment petition was resisted on all grounds, legal as well as factual. Keeping in view the pleadings of the parties, following issues were framed for trial:- (1) Whether the petitioners have got any cause of action? (2) Whether the respondents are rent defaulters? (3) Whether the suit property is required for reconstruction? (4) Whether the application is premature under section 17(4), being a hotel, if so, its effect? (5) Whether the petition is based on mala fide? (6) Relief.

4. At the conclusion of trial, learned Rent Controller, Nowshera, on overall assessment of the material before him, accepted the petition by order, dated 12-4-2005 and directed eviction of the appellants from suit premises, as mentioned above.

5. Appearing on behalf of appellants, Malik Haroon Iqbal, Advocate contended that the shops in question were used for the purpose of hotel and the landlord has filed the petition prematurely and no notice has been served in terms of 3rd proviso to subsection (4) of section 17 under the Cantonment Rent Restriction Act, 1963; that the premises were used for a hotel with the permission and licence of the Cantonment Authorities; that the appellants were not rent defaulters and they were regularly depositing the same in the Court of Rent Controller, Nowshera; that the landlord has not given any notice to appellant in respect of change of ownership; that the reconstruction ground was not available to the respondents because alleged building plan was not renewed, as contemplated under the law and that the improvements made by the appellants from time to time with due permission and consent of landlord has not been given to the appellants. In this regard, reliance was placed on Syed Hasan Askari Rizvi v. Muhammad Aziz (PLD 1988 Supreme Court 1), Iqbal Yousuf v. Kishwar Jehan (1991 SCMR 864).

6. Mr. Fazle Karim, Advocate, representing the respondents, on the contrary, refuted the arguments of learned counsel for the appellants and supported the ejectment order whole heartedly. To augment the contention, reliance was placed on Iqbal Yousuf v. Kishwar Jehan (1991 SCMR 864).

7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record.

8. Ejectment has been sought on twin grounds i.e. default in payment of rent from 1-5-2003 to 30-10-2003 and reconstruction. So far as default is concerned, it stands established from the material on record that respondents had become owner of suit shops on the basis of a registered sale-deed, dated 3-12-1999. After purchase, the respondents sent a registered notice, dated 26-4-2003 to appellants regarding change of ownership, payment of future rent and reconstruction of suit premises. This notice remained un?responded. The appellants neither paid rent nor vacated the suit premises. They have rightly been adjudged rent defaulter by the trial Court. The finding recorded to this A effect is unexceptionable and hardly warrants interference of this Court.

9. So far as issuance of notice in terms of 3rd proviso to subsection (vi) of section 17 under the Cantonment Rent Restrictions Act, 1963, is concerned, the controversy stands resolved by the order of the trial Court, dated 23-11-2004. An application to this effect was moved before the Rent Controller, which was not seriously pressed. At this stage it does not lie in the mouth of the appellants to agitate that no notice had been served, which has materially prejudiced the interest of the appellants.

10. Adverting to the next ground of reconstruction, the requirements of section 17 subsection (2) clause (vi) only are that the landlord who intends to demolish the building for constructing a new one on the site has to obtain necessary sanction from the Cantonment Board and it is not incumbent under the law that he should also attach approved plan in this regard with the application for ejectment. Approved plan from Cantonment Board for reconstruction of rented premises was sufficient to establish bona fides unless it is shown from evidence on record that the approved site-plan had been produced as an excuse to deprive the tenant of possession of rented premises. What is required of the Rent Controller under clause (vi) of subsection (2) of section 17 is to see that A the landlord has obtained the requisite sanction, which is the basis for moving an application for ejectment, and not that the period within which the construction is to commence is subsisting. The interests of a tenant are protected by subsection (7) of section

17. But if the landlord fails to obtain extension of time and is consequently unable to demolish or reconstruct the building within the prescribed period, he exposes himself to criminal liability under subsection (vii) of section

17. Rais Ahmad v. Mian Abdul Jabbar and another (PLD 1972 Lahore 711) and Messrs Delite House Ltd. v. Fayyaz Akbar (1988 CLC 1363).

11. Learned counsel for the appellants next contended that no notice, regarding change of ownership was served, and as such, requirements of law were not fulfilled. This submission of the learned counsel is not tenable. It is evident from the record that after purchase of suit premises, a registered notice was sent to the appellants, wherein they were duly informed about change of ownership, future payment of rent to the respondents and reconstruction. Wali Muhammad v. Mukhtar Husain (1991 SCMR 224).

12. Concluding the arguments, learned counsel for the appellants half heartedly contended that the improvement were made by the appellants from time to time with permission and consent of landlord and in case of ejectment, appellants were entitled to recover costs of improvements. This submission is equally without force. It is settled law that the person who comes to Court and asserts the facts to be believed true by the Court, has the burden to prove it by bringing cogent evidence to it on record. In the instant case, no plea of improvements has been taken in the written statements. No issue to this effect has been formulated and no evidence has been brought on record. In view of what has gone above, I find that Rent Controller has done his job in accordance with law and I do not find any amiss of misreading and non-reading, which could have any reflection upon his decision. The appeal is without substance. The same is hereby dismissed, with no order as to costs. H.B.T./97/P???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.