1994 PLP 584 (CLC)

2. Briefly stated the facts are that respondents filed application under section 15 of the Ordinance against appellants and stated that they were landlords of the commercial premises where they were running Ghosia Restaurant. Some shop cabins were made or carved out in the said building and one of such cabin‑shops (measuring 8/1‑2 X 3") was given to the appellants at the rate of Rs.200 per month. The appellants were inducted as licencees but as they claimed to be the tenants, they were subsequently treated as such, and their status as a tenant was notified to them through a notice dated 8‑9‑1986 which was duly served. It was further pleaded that without permission of respondents, the appellants had parted with possession of the said shop and delivered the possession to Muhammad Naeem and Muhammad Waseem. It was also stated that there was a family gallery located in the mazzanine floor and the existing stair‑case to the said family gallery at the far end from the main entrance of the restaurant hall, caused inconvenience to the customers coming to the restaurant with families. As such, the respondents proposed to build a staircase from the place where the disputed cabin‑shop existed and obtained sanction from K.B.CA., for such construction. It was further stated that the respondents, after the construction of the stair‑case needed to use the same bona fide and in good faith for the use of their customers. Default in payment of rent was also alleged. Appellants filed written statement, challenged the maintainability of the application, denied the rate of rent. of Rs. 200 per month and stated that it was, in fact, Rs. 150 per month, that they had deposited Rs.30,000 with respondents, whereafter tenancy agreement was executed, that no default in payment of rent was committed as they were depositing rent in Misc. Rent Case and lastly that grounds of reconstruction and bona fide, personal requirement were maliciously pleaded. Appellants admitted the approved plan obtained by respondents but stated that it was obtained at their back. Appellants also pleaded that they were asked by respondents to pay a further deposit of Rs. 50,000 which they refused tq, pay and therefore, with mala fide purpose ejectment proceedings were filed.

3. One Muhammad Nawab, a partner of the respondents, filed his affidavit‑in‑evidence and annexed certificate of Registrar of Firms dated 26‑3‑1984, legal notice dated 8‑9‑1986 sent to the appellants, 'sanction letter and the building plan issued by the K.B.CA. and some other documents which are not relevant for the purpose of this case. Appellant Muhammad Asif filed his affidavit‑in‑evidence and produced general power of attorney executed in his favour by other appellants and some receipts indicating deposit of rent in Misc. Rent Case. The learned Rent Controller on perusal of the pleadings and evidence framed the following points for determination:‑‑ (1) Whether the rate of rent was Rs. 200 per month? (2) Whether the opponents have committed any default in payment of rent? (3) Whether the premises were required by the applicants for personal bona fide use for construction of stair‑case? (4) Whether the premises were sublet? (5) What should be the final order?

4. Learned Rent Controller came to the conclusion that rent was Rs. 150 per month, that no default was committed by the appellants, that the premises were required by respondents for personal bona fide use for construction of stair‑case, that subletting was not proved and in the result directed appellants' eviction from the disputed cabin‑shop.

5. I have heard the learned counsel for the parties, perused the evidence and the impugned order. It has been contended on behalf of the appellants that the respondents have obtained sanction from K.B.CA. for reconstruction of a stair‑case and not the reconstruction of the building and, as such, eviction of appellants could not have been sought under subsection (2) (vi) of section 15 of the Ordinance, which lays down that the landlord has obtained necessary sanction for reconstruction or erection a new building. According to the learned advocate, mere construction of stair‑case leading to the mazzanine floor from the place on the ground floor, where the disputed cabin is situated, would not be a proper sanction in the eyes of law and, therefore, it would be presumed that the sanction obtained from K.B.CA. is illegal and eviction of appellants on that ground could not be sustained. It is also argued that the sanction is mala fide inasmuch as it was obtained by respondents without any notice by K.B.CA. to appellants. It has also been argued that the witness of respondents, has been completely shattered in cross‑examination in so far as the ground of default and subletting is concerned and because respondents approached the Court with unclean hands, discretion exercised by the Rent Controller in directing appellants' eviction was erroneous exercise of jurisdiction. No case‑law in support of these contentions was referred by the learned advocate. Learned counsel for the respondents has argued that for the reasons in the application as well as in affidavit‑in‑evidence it was shown that a stair case was proposed to be constructed leading from the place where the disputed shop is situated, to the. mezzanine floor for facilitating the entry to the restaurant by the customers visiting with their families. For that purpose, the required sanction was obtained and appellants were required to vacate the cabin so that proposed construction could be carried out but because they failed to do so, ejectment case was filed. It is also argued that under the Ordinance, the landlord has only to show that he has obtained the requisite sanction for reconstruction and nothing more, and for that, bona fides of a landlord could not be subjected to scrutiny. It is also argued that the pleadings in the application, if shown to be consistent and in conformity with the statement of the landlord on oath, would be sufficient to entitle a landlord to eviction of his tenant. The last contention of the learned counsel is that re construction and thereafter putting the premises to one's own bona fide personal use, would not be destructive to each other as both pleas could be taken in one application. In support of these contentions learned advocate referred to (i) Abdul Bari v. Khadim Hussain (PLD 1978 SC 78), (ii) M/s. Ismail Brothers v. Kaval Ram (1980 SCMR 776) and (iii) Dawood v. Muhammad Yaseen (PLD 1982 SC 227).

6. Since the learned counsel for the respondents did not argue the issue of default and subletting decided against them by the learned Rent Controller, no finding on those issues is required to be given and the conclusions arrived at by the Rent Controller are maintained. The main issue in this case is whether the respondents required the disputed cabin‑shop for reconstruction or erection. This issue has been dealt with by the learned Rent Controller in details and for valid reasons it has been held that the respondents, in fact, want to construct a stair‑case leading from the place where the disputed shop is situated to the mazzanine floor. For that the only requirement of law, is that the landlords have obtained necessary sanction for such reconstruction or erection from the authority competent under law. The obtaining of sanction by respondents is not disputed by appellants, but all that is stated by them is, that such sanction was obtained at their back and without notice to them. Appellants' learned counsel was unable to show if a tenant of a premises which are proposed to be demolisjed or reconstructed is entitled to a notice of hearing by the authority competent to accord such sanction. After the erection of stair-case it can naturally not be put to any other use except that the customers would pass through it while going to the restaurant or the family room. The finding of the learned Rent Controller in my view does not requires any interference and the same is maintained. 7. in the result there is no merit in this Appeal which is dismissed with no order as to cost. These are the reasons for the short order dated 14-11-1993. H.B.T./ M-1890/K Appeal dismissed.