P L D 1962 (W (PLP)

FARUQUI, J.‑This writ petition is by a tenant and is directed against the order of the Chief Judge, Karachi Small Causes Court dated 5‑8‑61, whereby he set aside the order of the Rent Controller, Karachi in exercise of his powers of revision and granted a certificate to the landlords under section 10 of the Karachi Rent Restriction Act on the ground that, the premises were required by the landlords for reconstruction for their personal use.

2. The facts leading up to this petition may be shortly stated : The petitioner Muhammad Ants Is In occupation of a bungalow on plot No. 385/1, Garden East, Pedro De'Souza Road, Karachi as a tenant. His occupation goes back to 1948. The present respondents 2 and 3. namely, Messrs Fida Hussain and Fakhruddin both sons of Mr. Ghulam Ali Ibrahim, purchased this property from its previous owner Mst. Jenabal Karamah by registered sale‑deed on 15‑12‑61 for a consideration of Rs. 50,

000. Previously Mst. Jenabai had filed an application for a certificate under section 10 of the Karachi Rent Restriction Act against the present petitioner, but this application was dismissed by the Rent Controller on 30th January 1961 upon an application being made to him that Mst. Jenabai had sold the property in question. In March 1961 the present respondents 2 and 3 filed an applica tion before the Rent Controller, Karachi for a certificate under section 10 of the Karachi Rent Restriction Act upon several grounds, but the ground which was pressed before the Rent Controller was that they required the premises reasonably and bona fide for reconstruction and for their own occupation for which sole purpose they had purchased the property in question. This question was formulated by the learned Rent Controller as point No. 3 for consideration and this reads as follows :‑ "If the applicants reasonably and in good faith require the disputed premises for reconstruction and for their personal use."

3. In the objections filed by the present petitioner who was the opponent before the Rent Controller, the stand taken in paragraph 7 was that the applicants (before the Rent Contr611er) were well‑to‑do people having comfortable residential accommoda tion of their own. In the petition it had been alleged that the plot in question measured 1159 square yards and was situated in a fashionable locality, but the existing structure which was occupied by the tenant was old, out‑worn and in a perfectly out‑dated architectural style and moreover it covered only a fraction of the area available for building. To this the tenant had replied by saying that the existing construction was enough according to the area of the plot and the only defect was that the construction was badly in need of white‑washing etc.

4. Before the Rent Controller on the side of the applicants Mr. Fakhruddin (applicant No. 2), a practising barrister of this Court gave evidence. He stated that they had purchased this property by investing Rs. 50,000 for reconstruction and their own bona fide use. He further stated that the family consisted of his parents, himself and his brother applicant No. 1, their wives and four children ; that they were residing in a rented premises which was not sufficient for them and was most inadequate. It was a flat on the first floor of a building consisting of 3 bed‑rooms, one drawing room and attachments. One of these rooms measured 16 x 12 and the other two rooms only 10 x

13. The expected cost of reconstruction was given at Rs. 60,

000. He further stated that the present constructed area of the building which they had purchased was only 124 square yards while the area permitted for construction would be as much as 386 square yards and that they proposed to build on 320 square yards, for which they had got the plan, Exh. P/2, duly passed by the authorities. As regards their status and capacity to put up a new building he stated that his annual gross income was Rs. 75,000 from his practice and his brother, who was an architect, also earned about the same amount.

5. On the side of the opponent also only one witness was examined and this was Muhammad Jamal, a brother of Muhammad Anis, the present petitioner. He merely stated that they had been residing in the house for over 13 years and their family consisted of 25 members a fact which was also admitted by Mr. Fakhruddin himself. Muhammad Jamal further stated that they had no alternative accommodation of their own. In cross-examination be stated that his father had a verified claim of Rs. 8,50,000 and had got an ice factory at Bannu in lieu of his claim. He also stated that the four brothers had a construction company. This was all the evidence in the case.

6. Dealing with the point which he had formulated, the learned Rent Controller observed that the opponent (tenant) had been residing in the premises for the last 13 years and the applicants (landlords) were residing in the adjoining bungalow with 10 members of their family while the opponents were living in the disputed premises with 24 members. He then went on to say that the applicants had purchased this property for Rs. 50,000 with the intention to reconstruct. He, however, rejected their claim of bona fide requirement on the ground that there was no evidence to show that they were being ousted from the premises which was in their occupation. This is what he said :‑ "The applicants have failed to establish from any documentary or‑oral evidence that they are being ousted from their premises to establish their requirements for their bona fide use. In the absence of this I refuse to believe their bona fide requirements. The plot of the disputed house is 1159 square yards and if the applicants really require the premises for their personal bona fide need they can use the open plot lying vacant for reconstruc tion for their bona fide requirement without disturbing the opponent." He then went on to say that he had inspected the building and it was not worn‑out or dilapidated and in fact the applicants had never approached the Karachi Development Authority for the demolition of the existing structure. He then concluded his order by making the following observations :‑ "The applicants are moneyed people and they obviously want to invest their money in this house with a purpose of profit and obviously their intentions are not bona fide. Since the applicants have failed to prove their requirements for the premises reasonably and bona fide beyond reasonable doubts I refuse to accept this application and therefore dismiss it.

7. Messrs Fida Ali and Fakhruddin then went in revision to the Chief Judge, Small Causes Court, Karachi under section 15 of the Karachi Rent Restriction Act which was allowed by she order dated 5‑8‑61 against which the present writ petition: is directed. The learned Chief Judge, Small Causes Court stated in his order that be bad heard the Advocates of the parties at length. He first noted the contentions of the Advocate of the applicants before him and then observed that the learned Rent Controller had himself admitted that the building was purchased with the intention to reconstruct but he seems to have been much impressed by the fact that the opponents had been tenants for a long time and that it would be a great hardship to them to vacate as they had about 23 members in the family. The learned Judge pointed out that the mere hardship of the tenant was not a ground to be considered in the case. He repelled the contention of the opponents' counsel that before a building could be demolished it was necessary to obtain the permission of the K. D. A. He then noted the fact that the applicants before him were men of means‑a fact which had not been disputed and they had actually got plans prepared for the reconstruction of the premises. He then proceeded to give the following finding :‑ "Having carefully examined the circumstances and the evidence brought on the record, I feel that the need of the applicant for reconstruction was genuine and bona fide and they require the premises for their personal use and as such they were entitled to the grant of a certificate."

8. The revision having been allowed an application for review was made on behalf of the present petitioner and this was heard by Mr. Leghari who had succeeded Mr. Ghulam Hussain as the Chief Judge, Karachi, Small Causes Court. This was also dismissed. Muhammad Anis then filed the present writ petition.

9. Mr. Ehsanul Haq, the learned Advocate for the petitioner before us contended that the need of the respondents 2 and 3, the landlords, was not a bona fide one; that they had purchased the property knowing that it was in occupation of a tenant they were already in occupation of a reasonable accommodation and even if they wanted to put up a construction for the purposes of their own occupation they could do so upon a part of the plot which was still available and that it was not necessary to disturb the long occupation of the petitioner and his family. He further urged that the Chief Judge, Small Causes Court had wrongly assumed that the Rent Controller had conceded bona fide need of the respondents and he failed to give his own finding upon the basis of which alone he could have granted the certificate. Lastly, he urged that the certificate was bad because it was not couched in the terms as required by section 10, sub‑clause (2) (c) of the Karachi Rent Restriction Act. Before we go on to examine the validity of these contentions it will be useful to reproduce the relevant portion of section 10.

10. Section 10 bars the ejectment of a tenant so long as he is ready and willing to pay the fair rent and perform the other conditions of the tenancy. This bar is, however, removed if the landlord obtains a certificate from the Controller certifying that ; "(c) the premises are reasonably and in good faith required by the landlord‑ (i) for the erection or reconstruction of a building, or (ii) for his own use or for the use of any person for whose benefit the premises are held." We have omitted the other grounds upon which the certificate can be granted which are contained in sub clauses (a) and (b), because they are not relevant for the purposes of the present case. In the present petition we have got to see whether the Tribunal namely, the Chief Judge, Karachi Small Causes Court, has acted beyond the scope of his authority and further whether his determination suffers from an illegality or an error apparent on the face of the record so as to attract the writ jurisdiction of this Court for purposes of certiorari. In view of the pronouncement of their Lordships of the Supreme Court in the case of M. M. Ispahani Ltd. v. Muhammad Sultan (P L D 1961 S C 76), It cannot be questioned that having regard to the terms of section 15 of the Karachi Rent Restriction Act, the Chief Judge Small Causes Court for the purposes of satisfying himself as to the legality or propriety of the order of the Rent Controller was entitled to upset a finding of fact by the Rent Controller. In that case their Lordships were considering the validity of the order passed In revision, In which the Chief Judge bad taken into consideration the need of the tenant for refusing a certificate to the landlord. Their Lordships while holding that he was not entitled to do so observed as follows:‑ "The only jurisdiction he had was to certify a particular fact that is, whether the landlord required the premises for his own use. Once he reached a decision on this question his jurisdiction was exhausted." In the present case there is no doubt that the Rent Controller in refusing to grant a certificate to the landlord had taken into consideration the need of the tenant inasmuch as his was a large family and they bad been occupying it for a long time and the learned Chief Judge, Small Causes Court was quite right in rejecting that consideration. What has to be determined under sub‑clause (2) (c) of section 10 is whether the premises are reasonably and in good faith required by the landlord for the purposes mentioned in the sub‑clause. With regard to the question of reconstruction the learned Rent Controller accepted the position that the landlords did want to reconstruct, but in the absence of any evidence that they were being ousted from the premises in their possession he rejected their claim for bona fide use of their own. He then went on to observe that if they really wanted to reconstruct they could do so upon the unbuilt portion of the plot. He also took note of the fact that the landlords had not approached the K. D. A. for the demolition of the existing structure. The revisional authority did not consider these grounds as being valid for the purposes of the rejection of the application for a certificate. Therefore, when the matter came up before him in revision, upon the evidence on record he came to the conclusion that the need of the applicants for reconstruction was genuine and bona fide and they required the premises for their personal use. The only finding of the Rent Controller which the Chief Judge relied was with regard to the intention of the landlords to reconstruct. The fact that the respondents had purchased this property with the knowledge of its occupation by the petitioner cannot disentitle them from claiming the property for their own use provided they were able to satisfy the requirements of section 10.

11. In support of his contention that the certificate granted by the Chief Judge was bad inasmuch as it was not in terms of sub‑clause (2) (c) of section 10, Mr. Ehsanul Haq relied upon the judgment of Supreme Court in the case of Abdullah Baloch v. Adam Ali (P L D 1961 S C 28). In our opinion, however, this case does not help him. Their Lordships 1n that case were dealing with a situation in which the landlord had sought a certificate upon the ground that he required it for reconstruction and that this reconstruction was needed for the use of himself and his relation. The need of reconstruction was thus linked with the need of his own use. But the Rent Controller had found that the landlord had no reasonable and genuine requirement for residential purposes and that he could carry on his business quite comfortably in the existing premises with him without having to require any further space. He, however, granted the certificate to the landlord upon the ground that they were required to be reconstructed. It was on these facts that their Lordships observed that the landlord in his application to the Rent Controller had linked up the requirement of reconstruction with his own personal requirement which was specifically negatived by the finding of the Rent Controller and that being so, that finding must necessarily react upon the allegation of reasonable and bona fide requirement for reconstruction, because requirement for reconstruction for the sake of reconstruction is not a valid requirement to enable a landlord to obtain ejectment of a tenant under the Karachi Rent Restriction Act, 1953.

12. In the present case also the requirement of the landlords for reconstruction is linked up with the requirement of personal use, and if the Chief Judge, Small Causes Court had rejected the requirement for personal use we would have had no difficulty in allowing this petition, for, as observed by their Lordships, requirement for reconstruction for the sake of reconstruction is not sufficient to entitle the landlord to a certificate. That requirement must be reasonable and in good faith. In the case before us the learned Chief Judge, Small Causes Court has found in favour of the respondents 2 and 3 on both the parts upon the evi dence on record, and we do not think that these findings are open to challenge in these proceeding. It was the case of the respondents that they were occupying a rented premises which was most inade quate and insufficient for their needs and that they had purchased this property for the purpose of reconstructing it and occupying it themselves. In the course of the hearing we asked Mr. Patel, the learned counsel for respondents 2 and 3, whether his clients would have any objection to the petitioner moving into the premises at present in their occupation when they constructed the new house and shifted into it, and he replied that he would have no objection if the landlady permitted it. It may also be noted that sub clause (3) of section 10 provides a remedy for a tenant from whom possession has been obtained by the landlord on the ground of requirement for his own occupation or for reconstruction, because if he fails to reconstruct or occupy the Controller may on the application of the tenant direct the landlord to place him in possession or pay him such compensation as may be fixed by the Controller.

13. With regard to the objection raised on behalf of the petitioner to the form of the certificate we may point out that in the case of Abdullah v. Adam All referred to above, their Lordships inn of the Supreme Court observed as follows:‑ "It is arguable that the Rent Controller's `certificate' under section 10 (2) being in the nature of an enabling document in law, must in order to be effective, satisfy all the formal requirements of law. At the same time, if in substance, the finding were one which met those requirements, even though certain words enjoined by the law were not expressly used, the Courts would not easily be moved to avoid such a certificate." In the present case, the learned Chief Judge has said that the need of the applicants for reconstruction was genuine and bona fide and they required the premises for their personal use. It is true that the exact words of the section have not been used, but in our opinion, in substance the finding fulfils its requirements. Considering that the case of the applicants before the Chief Judge that they had purchased the premises for occupying it after reconstruction, we are satisfied that the certificate granted by the learned Chief Judge in substance fulfils the requirements of the section.

14. For the reasons given above the writ petition is dismissed. The parties are left to bear their own costs. A. H. Petition dismissed.