1980 PLP 776 (SCMR)

DORAB PATEL, J.‑About 25 years ago the respondent had leased to the petitioner an open plot of land owned by him in Rambagh Quarters, Karachi. After one round of litigation, which is not relevant, the respondent filed an eviction application against the petitioner nearly fourteen years ago for his eviction on the ground that he wanted to construct a building on his plot for his own use. As the petitioner contested his eviction, the respondent produced evidence to show that his building plan had been approved by the K. M. C. He also produced evidence to show that his son wanted to carry‑on business in the proposed building and that his daughter who was a doctor would run her clinic there. And, it is relevant to observe here that the respondent did not produce any evidence to show that the respondent or his daughter were not in occupa tion of any other building in which the respondent's daughter could have run a clinic. It is, therefore, not surprising that the Rent Controller allowed the respondent's application on 23‑10‑1971. The petitioner challenged the Rent Controller's order in an appeal in the District Court, Karachi, and the learned Additional District Judge, who heard this appeal allowed it largely on the ground that a landlord could not in good faith seek the eviction of his tenant both on the ground of reconstruc tion and on the ground of personal use, because these two pleas were mutually destructive. Accordingly, he, allowed the petitioner's appeal. Therefore the respondent filed a second appeal in the Sind High Court and as Akhund, J., agreed with the view of the Rent Controller, he allowed the ‑ respondent's appeal by his judgment dated 13‑10‑1979. Hence this petition for leave. We pointed out that the respondent's claim that his daughter was not in occupation of any building, in which she could practice as a doctor stood un-rebutted. Additionally, as observed by the learned Judge, the Rambagh quarters of Karachi is a better place for carrying on business than Clifton, where the respondent, his son and daughter reside. Therefore, we are satisfied that the respondent has proved that he required the demised premises for the use of his family and the petition must fail unless of course as held by the learned Additional District Judge, a landlord's claim for reconstructing his premises reacts against his claim that he requires the demised premises for his own use or for the use of his family. Now, there may be situations in which a landlord's claim for reconstruc ting his premises reacts against his claim that he wants the demised premises for his own use. We cannot, however, agree with the view that landlord's claim for reconstructing his premises is necessarily inconsistent with or reacts, against his claim that he requires the demised premises for his own use, and that is amply illustrated by the instant case. As we observed the respondent has proved that the demised premises are "reasonably and in good faith" required by him for the use of his family. But according to Mr. Rehmat Elahi, the petitioner has built a factory on the demised premises, therefore, on the view taken by the learned Additional District Judge with which we were invited to agree, the respondent's requirement would have been proved, if, for example, his daughter had been prepared to run her clinic in the factory built by the petitioner, but the respondent requirement was not in good faith, because his daughter did not like to run a clinic in a factory. Obviously, the consequences of the view taken by the First Appellate Court are far‑reaching, and to say the least would result in very odd consequences. We therefore, agree with the view of the learned Judge, and the proposition of law laid down by the learned Additional District Judge is not sound. Mr. Rehmat Elahi then submitted that the eviction application filed by the respondent should have been dismissed, because it was premature and the eviction application was premature, because the respondent had obtained the K. M. C. sanction for the building sought to be constructed by him after he had filed his eviction application. The question is solely of the construc tion of the relevant part of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, which reads:‑ "If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that (vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site, and the landlord his obtained the necessary auction 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 land is situated; the Controller may make an order directing the tenant to put the landlord in possession of building or rented land . . . We see no ambiguity in these provisions. A Controller cannot pass an order of eviction unless the landlord proves that he "has obtained the necessary sanction for the said reconstruction or erection." Therefore what the respondent had to do in the instant case was to produce the K. M. C. sanction when it was his turn to give evidences. And, as he did so, in the circum stances, he was entitled to evict the petitioner and if we were to accept the submission of learned counsel, we would he reading into the section qualification not contained in it. Learned counsel then stated that the petition had constructed a factor on the demised premises at great cost and as submitted by him, this was circumstance which had greatly impressed the First Appellate Court in the petitioner's favour. Nov. the fact that the petitioner had constructed factory on the demised premises would not by it self and without more be a bar to the respondent's eviction application and has no plea about this alleged construction was raised by the petitioner in his written statement, the first Appellate Court had erred in law in allowing the petitioner's appeal on this ground. With the result, we see no reason to dissent from the view of the learned Judge. The petition is without merit and is dismissed, but we give the petitioner four months' time to hand over vacant possession of the demised premises to, the respondent provided he continues to pay monthly rent. Petition dismissed