1988 PLP 2086 (CLC)

‑‑‑S. 15(2)(vi)‑‑Eviction of tenant on ground of construction of premises‑‑Sanctioned plans for construction of premises filed by landlord alongwith his affidavit‑‑Circular issued by Development Authority binding landlord to enter into agreement with tenants assuring to rehabilitate them after construction of building found to be ultra vires of powers of Authority‑‑Case for seeking eviction of tenants on grounds of construction, held, was proved in circumstances. P L D 1986 Kar. 393 ref. Syed Inayat Ali for Appellant. Hussain Adil Khatri for Respondents. Date of hearing: 18th August, 1987. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) has arisen from an order dated 27‑5‑1984 passed by learned VIIIth Senior Civil Judge/ Controller, Karachi in Rent Case Nd.4247/78 in the following circumstances. The appellant Ebrahim filed the aforesaid rent case on 14‑9‑1978 under the provisions of sections 13 (2) (i) (vi) and 3 (a) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the repealed Ordinance), for eviction of the respondent tenants from a plot bearing Survey No.2003, New Kumbharwara, Lyari Quarters Karachi on the grounds of default in payment of rent and construction on the plot. The respondents resisted the eviction case, denying default in payment of rent and challenging the plea of raising construction on the plot. The appellant filed his own affidavit‑in- evidence and that of one Ismail. From amongst the respondents, Moosa respondent filed his own affidavit‑in‑ evidence. The learned Controller held by the impugned order that neither the respondents had made default in payment of rent nor the appellant has made out a case that he needed the plot for constructing a building for his own use. The learned counsel for the appellant has urged that the appellant stated in paragraph 2 of the rent from 1‑10‑1975 and he reiterated that. fact in his affidavit filed in evidence and the respondents impliedly admitted that fact in paragraph 2 of the written statement and therefore default in payment of rent stood established. The learned counsel for the respondents has contended that the averments made in paragraph 2 of the written statement do not amount to admission of default in payment of rent and that the respondents' plea is that the rent was being paid to the appellant's father and they did not have notice of transfer of the rented premises to the appellant. It is an admitted position that the tenancy was established by the father of the appellant. It is also admitted that the appellant had not given to the respondent notice of the transfer of the rented premises to him. The other aspect of the case, which is not disputed. is that no rent receipts were being issued by the landlord. The facts stated in paragraph 2 of the written statement are that the opponents were regularly paying rent to "the applicant" but mention of "the applicant" seems to have reference to the original landlord, the father of the appellant, and this fact was clarified in paragraph 4 of affidavit in evidence of the respondent Moosa Khan. The appellant's father was not examined to controvert the plea advanced by the respondents. In the circumstances, the respondents were not deemed to have made default in payment of rent as the appellant had not served notice on them of the transfer of the premises. Of course, the learned Controller did not touch this aspect of the case and he proceeded on wrong premises that the 'opponent' (respondent) had stated that rent had been paid upto September 1978 and his version had gone unchallenged. However, the finding on the issue of default in payment of rent would be in negative for the reasons stated above. On the issue of personal requirement for construction, the appellant stated in paragraphs 3 and 4 of the rent application that the family consisted of mother, two sons, and five daughters and the accommodation available with him was inadequate for their needs and they needed the plot for constructing a house for living there. This fact was reiterated in the affidavit filed in evidence and a copy of the approved plan for raising construction was actually filed alongwith the affidavit. The learned Controller adopted the view that the plea for construction on the rented premises could not succeed as there was no agreement between the appellant and the respondents for rehabilitation of the tenants after the construction on the plot in view of a circular issued by the K . D . A . and, therefore, the plan for construction produced by the appellant did not meet the requirement of law. The learned counsel for the appellant has urged that the circular taken into consideration by the learned Controller has been held ultra vires the powers of the K . D . A . in a case reported in Pi.D 1986 Kar. at page 393 and the plans submitted by the appellant were sufficient for seeking eviction of the tenants on the ground of construction. The learned counsel for the respondents has contended that the validity period of the plan has expired and therefore ejectment of the respondents could not be sought on the ground of, construction. The rent case was filed under the provisions of clause 6 of subsection (2) of section 13 of the repealed Ordinance, which provided that eviction of a tenant could be obtained on the ground of reconstruction or erection of the building site if the landlord had obtained necessary sanction for that purpose from a competent authority. Sanctioned plans for the construction of the building were actually filed. Circular issued by the K . D . A . was held ultra vires powers of K . D . A . Sufficient grounds were stated for seeking eviction of the respondents on the ground of construction on the plot. Accordingly, case was made out for seeking eviction of the respondents from the rented plot for the purpose of construction on the site. The learned Controller was at error in holding otherwise. For the aforesaid reason, the appeal is allowed to the extent that the appellant was entitled to seek eviction of the respondents for the rented premises on the ground of construction of the building thereon and the order of the learned Controller is 'set aside. The respondents shall hand over vacant possession of the plot to the appellant within one month of production by him before the Controller of revalidated/approved plan for construction on the plot. No order is made for costs. H. B. T./I‑28/K Appeal allowed