1992 PLP 411 (CLC)

This first appeal is directed against the order dated 14‑1-1991 of the learned Controller of Rents, Peshawar Cantonment, whereby the ejectment petition filed by the respondents (landlords) was accepted and the appellants were directed to hand over possession of the suit property to the respondents landlords within 60 days.

2. Brief facts of the case are that shops bearing No.528‑529 situate in Sabzi Bazar Chowk Fawara, Peshawar Cantonment were purchased by late Lt. Colonel Shahzada Muhammad Jehangir from the Settlement Organization which on his death were inherited by the respondents‑petitioners Mst. Noorus Sabah and others. The late father of the appellants namely Abdul Hamid Mufti was occupying the same shops as tenant on payment of rent of Rs.55 per month. In January, 1977, Mst. Noorus Sabah etc. respondents herein through an eviction petition under section 17 of the Cantonments Rent Restriction Act, 1963, sought ejectment of the appellants from the shops in dispute on the grounds of default in the payment of rent, reconstruction and personal need. The eviction application was resisted by the appellants by filing written statement wherein various legal and factual objections were raised. The learned Controller of Rents, Peshawar Cantonment, reduced the pleadings of the parties into as many as four issues. In support of the ejectment petition, Mst. Noorus Sabah, respondent, appeared as P.W.1 and placed on record the notices of demolition as Exh.P.W. 1/1 and Exh.P.W.1/2. She also placed on record the building application form `A' Exh P.W. 1/3 and the resolution Exh.P.W. 1/4 of the` Cantonment Board whereby the building plan was sanctioned. She also placed on the file letter of sanction of the building plan, sanctioned building plan by Cantonment Board and the Bazar Committee. Resolution as Exh.P.W. 1/5 to Exh.P.W. 1/7, respectively. In rebuttal, the appellants produced Amanullah Oureshi, Sajid Hamid Mufti and Alam Khan as R.W. 1 to R.W. 3, respectively.

3. After the trial and hearing arguments in the case, the learned Controller of Rents came to the conclusion that the respondents‑petitioners had been able to establish their claim with regard to the building being in dilapidated condition. The bona fides of the respondents regarding reconstruction was also held to have been proved beyond any doubt and consequently by acceptance of the ejectment petition, the learned Controller of Rents through the impugned order passed the ejectment order of the appellants and directed them to hand over possession of the suit property to the respondents‑landlords within 60 days failing which the respondents landlords were at liberty to get the ejectment order executed through a Court of competent jurisdiction.

4. Aggrieved with the order of the Controller of Rents, the appellants tenants have moved this Court by way of present appeal.

5. I heard the learned counsel for the parties and perused the record of the case.

6. The learned counsel for the appellant submitted that the ejectment of the respondents was sought on the grounds; firstly, that the appellants‑tenants were dealing in kerosine oil business and, secondly, that the respondents landlords needed the premises for alteration/reconstruction. He submits that so many chances were given to the respondents to lead their evidence but they could not produce any evidence till 1986 in support of their eviction petition which was filed in 1977. He submitted that an application for amendment was filed by the respondents on 2‑2‑1987 but due to lack of evidence the said application was dismissed by the Rent Controller on 14‑9‑1988. The learned counsel submitted that the respondents filed another application in February 1989 for the amendment of their eviction application which was allowed and consequently the appellants were ejected from the premises in dispute vide. order dated 14‑1‑1991 of the learned Controller of Rents. He submits that the order of the Court permitting the respondents to amend the application for eviction on new grounds amounts to changing of the very nature of the said application which is not. permitted under the law. The learned counsel relied on PLD 1980 Lahore 302 and P L D 1985 Azad J&K

1. He submitted that no draftsman or the person who had prepared the site plan showing that the building is in dangerous condition was produced in Court. He also contended that there is no male member present in the house of the landlady who could run the shop and the application based on the plea of reconstruction and self‑requirement is totally mala fide. He placed reliance on PLD 1979 Lah. 317.

7. On the other hand, the learned counsel for the respondents submitted that the appellants‑tenants raised no objection in the written statement regarding the two grounds they are now agitating before this Court. He submitted that the application for permission to amend the ejectment application was not objected by the appellants‑tenants and in the light of no objection from the opposite side the amendment was allowed. He further submitted that the order of amendment was not challenged before any forum, therefore, that order has become final. He also contends that the appellants tenants have sublet the upper portion of the building which is lying vacant and similarly the shops are also lying vacant since long in order to pressurise the landlords for selling the property in dispute to the appellant. He submitted that for the purpose of reconstruction of the shops only sanction is required under section 17 (6) and the penal provision is laid down under subsection (7) of section 17 of the Act. He produced the case‑law on the point and submitted that if new ground is proved in the evidence but not taken in the grounds of eviction petition, that too will serve the purpose of law and on this ground the application of the landlords for ejectment of their tenants will not be thrown out of consideration.

8. After hearing the learned counsel for the parties and perusal of the record, I am of the opinion that the order passed by the learned Controller of Rents, Peshawar Cantonment, is based on solid grounds and is unexceptionable. The permission for amending the ejectment application was granted by the learned Rent Controller because no objection was raised from the other side either in Court or in reply to the application. Besides this, it was not challenged by way of revision before any forum, therefore, at this stage the appellants‑tenants cannot challenge the same. The other grounds taken by the learned counsel for the appellants‑tenants are also without any force. Eviction order can be passed by a Rent Controller in cases where male members of a family are not available in the house or in other words they are unemployed. It has sufficiently been proved from the available evidence on the record that the appellants‑tenants have sublet the upper portion of the property in dispute to Muhmands and they are not living in it since long because of the condition of the building being dangerous. It has also been proved from the evidence on record that the shops in dispute are lying vacant and the tenants/appellants are pressurising the landlady to sell the property to them on cheaper price. The evidence on record reveals that the sanction for reconstruction has been obtained and the relevant documents in this regard are placed on the file as Exh.P.W.l/3 to Exh.P.W.l/6 coupled with the resolution Exh.P.W.l/7. Under section 17 (2) (a) (vi), the grounds for eviction of a tenant are subletting and construction if the landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction for such construction from the Cantonment Board which have been proved by the landlords‑respondents and these two grounds were sufficient for passing the impugned order. In 1980 SCMR 41, it was held that the landlord's intention to demolish old building and spend huge amount in reconstructing a new one was sufficient to establish his bona fides and the ejectment order of the lower forum was upheld by the honourable Judges of the Supreme Court. The same view has been taken by their lordships of the Supreme Court in 1980 SCMR 483 where the production of the sanctioned plan for reconstruction of property was considered sufficient bona fide ground for ejecting the tenant from the property. In the afore‑cited authority, it has been held as under:‑‑ "The requirement of the law is that there should be sanctioned plan of construction or reconstruction of the property, and it is therefore, immaterial whether the forwarding letter of the Municipal authority concerned is produced or not, if the Court is satisfied that the plan produced is indeed a sanctioned plan as required by law. None of the three Courts, which have dealt with the case, have doubted the genuineness of the sanctioned plan. The learned Additional District Judge, who decided the matter against the landlords, proceeded on the basis that the plan had been sanctioned during the pendency of the ejectment petitions and that one of the landlords, named Muhammad Bashir was already residing in a rented house. In other words even he did not doubt the genuineness of the sanctioned plan. In the circumstances, there is no merit in the submission that the sanctioned plan was not duly proved on the record." The landlords/respondents in this case have produced the sanctioned plan alongwith the resolution of the Cantonment Board that the property in dispute is in a dangerous condition and proved their bona fide intention beyond doubt to reconstruct the same in light of the aforesaid authorities. Therefore, it is difficult to take a different view in the matter than the one taken by the learned Controller of Rents, Peshawar Cantonment.

9. In the case of Muhammad Shah and others v. Muhammad Ilyas (1986 SCMR 451) their Lordships of the Supreme Court held as under:‑‑ "Landlord dying after filing ejectment application against tenant on ground of personal requirement of premises‑‑‑Appellants (children of landlord) amending ejectment application, with permission of Court, impleading themselves in place of their father and setting up an independent plea of their own personal requirement of shop in question‑‑‑Appellants not claiming ejectment of tenant by virtue of devolution of rights from deceased landlord qua plea of personal requirement but pleading their own case in their own right as landlords for time being‑‑‑Amended ejectment petition qua such plea was for all intents and purposes a fresh petition which they could maintain in their own right‑‑‑Objection of tenant that such procedure was illegal or not permissible in law, held; purely technical and of no consequence." Further, in 1981 SCMR 720, it has been held that merely because of sons of landlord being not unemployed inference held, could not be drawn that landlord could not set up one of his sons in business. Similar view has been expressed in the case of Zahoor Din v. Mirza Ayub Baig (1981 SCMR 1080). In the case of Abdur Rashid v. Ghulam Dastgir (1981 SCMR 1087) it was held as under:‑ "Plea of reconst6ciion of property to be examined by reference to condition of property, its economic utility, resources of landlord and steps taken to advance his plans for reconstruction. Landlord's case satisfying such tests cannot fail on ground that landlord failed on some other ground for getting same tenant evicted."

10. Resultantly, in view of the facts and circumstances of the ease and the law laid down by the Supreme Court of Pakistan, I find no merit in this appeal which is dismissed with costs. AA./1281/P Appeal dismissed.