1983 PLP 751 (CLC)

Naweed Shahryar for Respondent No.

2. The dispute between the parties relates to a shop occupied by the respon dents as tenants under the petitioner. The latter applied to the Rent Controller for their eviction, inter alia, on the ground that reasonably and in good faith he required the demised property for reconstruction.

2. The respondents resisted the ejectment petition. The learned Rent Controller on evaluation of the evidence of the parties, maintained that the upper storey of the building having been burnt the petitioner intended to reconstruct the same and thus develop tip his property for which he also got a building‑plan sanctioned from the Municipal Committee. He thus came to the conclusion that the petitioner needed the shop in good faith for recons -truction and thus passed an ejectment order against the respondents.

3. In appeal, the learned Additional District Judge took the view that as the shop bears a lantered roof, the construction of the upper storey can be carried on without the vacation of the ground floor. He thus set aside the order passed by the learned Rent Controller and dismiss‑‑d the ejectment petition. It is under these circumstances that the petitioner has invoked the writ jurisdiction of this Court.

4. Both the respondents are real brothers and engaged in business in the same shop. Inquiries made from respondent No. 2 revealed that respondent No. I was also served. However, he has not entered appearance. He has been, therefore, proceeded against ex parte.

5. So far as respondent No. 2 is concerned, he has entered into a compromise with the petitioner. Its terms are incorporated in a joint statement made by them and their learned counsel, according to which the respondent has no objection if the order of' the learned Rent Controller is restored, provided its execution is withh0d till the expiry of two months. During this period the possession of the shop. shall be passed on to 'the petitioner, who shall reconstruct the ground‑floor comprising three shops, within six months of such delivery of possession. Upon the reconstruction of the ground‑floor the respondent may choose anyone of the three shops and its possession shall be given to him by the petitioner within a fortnight of completion of the construction. In case any dispute regarding the monthly rent arises the parties may in this behalf. get ‑a decision from the Rent Controller in accordance with the provisions of subsection (5‑13) of section 13 of the Rent Restriction Ordinance. Till such decision the respondent shall pay tentatively rent at the rate of Rs. 100 per month.

6. It needs to be examined whether an ex parte ejectment, is warranted against respondent No.

1. It is discernible from the record that the shop in dispute forms ‑part of a building, the upper storey whereof was set on fire during 1947 disturbances and it requires reconstruction. Inclusive of the shop in dispute, as observed above, there are three shops in the ground‑floor of which two were got vacated by the petitioner for reconstruction of the building. Besides oral evidence the petitioner has produced the sanctioned building‑plan. In such like cases, the statement of the landlord corroborative of averments made in the petition, coupled with the sanctioned building plan,1 has usually been considered sufficient to establish the landlord's bona fide. It I may be observed that the landlord has every right to develop and improve his property.' Indeed the reasons which prevalled with the learned addi tional district Judge in interfering with the ejectment order are much conflict with the judicial pronouncements on the subject.

7. Seemingly, the provisions of subsections (5) and (5‑13) of section 13 were also not in his view. The impugned order being patently illegal, has got to be set aside. This writ petition is, therefore, accepted, the order passed by the learned appellate authority set aside and that of the learned Rent Controller restored, but its execution shall remain stayed for two months. The parties shall abide by the terms of the compromise. This order, however, shall not deprive respondent No. I of the joint possession with his brother (respondent No. 2) of the newly constructed shop on the terms of the compromise aforesaid. The parties are left to bear their own costs. M, Y. M. Appeal dismissed.