1992 PLP 1690 (MLD)

(F.RA. No. 688 of 1983) Shop No.G/5 (v) Appellants Abdul Aziz and another ‑‑ (F.RA. No. 736 of 1983) Shop No.G/3

3. These premises are required by the respondents for reconstruction at the site. who have obtained necessary sanction for such reconstruction from the authority competent to give such sanction. The appellants were, therefore, required to vacate the said premises, but they refused to do so. The refusal of the appellants to vacate the respective premises in their occupation led the parties into this litigation. , .

4. The appellants/tenants resisted their eviction on various grounds. They have alleged mala rides against the respondents. The legality of the requisite sanction for the purpose of reconstruction was also challenged.

5. The parties went to trial on the following issues:‑ (i) Whether the applicants want to demolish the building and reconstruct it? (ii) Whether the applicants have got proper sanction for that and from competent authority? (iii) Whether the applicants are entitled to relief claimed? (iv) What should the order be? An additional issue of subletting of the premises was framed in Rent Case No.3046 of 1980, out of which F.R.A. No.600 of 1983, has arisen but that issue was decided against the respondents.

6. Muhammad Nawab, the respondent No.1 was examined on behalf of respondents in all these cases. The appellants in F.R.A. No.600 of 1983 examined Behram Mehrwanji (D.W.1) and Qamaruddin (D.W.2). Additional evidence of Muhammad Khawaja Moinuddin, Assistant Controller, Karachi Buildings Control Authority was recorded (P.W.2), under the orders of this Court. The appellant in F.R.A. No.642 of 1983 examined Haroon (D.W.1). Additional evidence of Nadeem Anwar, Assistant Controller, Karachi, Buildings Control Authority (P.W.2), and Roshan Ali (D.W.2) was recorded under the orders of this Court. Nobody was examined on behalf of appellant in F.RA. No.649 of 1983. The additional evidence of Nadeem Anwar, Assistant Controller, Karachi Buildings Control Authority was, however, recorded under the orders of this Court (P.W.2). The appellant in F.RA. No.688 of 1983 examined Liu Shan Thong (D.W.2) and then closed the side. Appellant Abdul Aziz examined himself (D.W.1) in F.R.A. No.736 of 1983.

7. On the assessment of evidence available. on record the learned VIth Senior Civil Judge and Rent Controller, Karachi, decided all the issues against the appellants/tenants directing their eviction from the demised premises within a period of two months. This order, dated 21‑7‑1983 is the subject matter of the above appeals filed by the appellants/tenants separately.

8. I have heard learned counsel for the respective appellants and Mr. H.A. Rehmani, learned counsel for the respondents. I have also gone through the records of these cases carefully.

9. Section 15(2)(vi) of the Sindh Rented Premises Ordinance, 1979, whereunder the eviction of the appellants is sought provides as follows:‑ "15(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that ‑‑ (i) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (ii) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (iii)‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (iv)‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (v)‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (vi) the premises is required by the landlord for reconstruction or erection of a new building at the site and landlord has obtained necessary sanction for such reconstruction or erection from the authority competent under any law for the time being in force to give such sanction."

10. If the provisions of clause (vi) reproduced above are analysed, it will be clear that they are divisible into three parts, namely:‑ (i) The premises is required by the landlord for reconstruction or erection of a new building at the site; (ii) and the landlord has obtained necessary sanction for such reconstruction or erection; (iii) from the authority competent under any law for the time being in force to give such section. 11: Muhammad Nawab (P.W.1), who is one of the respondents/landlords has testified that all the above‑disputed premises are required by them for the purpose of reconstruction. Under the existing law mere requirement of premises for the purpose of reconstruction is sufficient to seek eviction of tenants and we should not read the words "reasonable" or `good faith' in clause (vi) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, which have been omitted deliberately by the legislature. This provision does not envisage inquiry by the Rent Controller into the genuineness or otherwise of the requirement of the landlord, who has simply to satisfy the Rent Controller that he has obtained necessary sanction for such reconstruction or erection of a building as the case may be, from the authority competent to accord such sanction. The cases reported as Hassan and others v. Fancy Foundation PLD 1975 SC 1, and Ghulam Muhammad and another v, Maqsood Hussain and 3 others 1984 SCMR 1142 are clear on this point. The contention of the learned counsel for appellants who have alleged mala fides against the respondents for different reasons is thus devoid of any force.

12. The perusal of the record further shows that the respondents have obtained necessary sanction from Buildings Control Authority appointed under Sindh Buildings Control Ordinance, 1979. The learned counsel for the appellants have, however, contended with force that the authority competent to give such sanction was the Building Control Department, Karachi Metropolitan Corporation and since the sanction was not obtained from the competent authority, the eviction of the appellants had no legal sanctity. My attention, in particular was invited to the words `builder' and `building' defined in Sindh Buildings Control Ordinance, 1979, which was further amende4 by Singh Buildings Control (Amendment) Ordinance, 1982, in an attempt to show that the `authority' appointed under section 4 was competent to approve plan in terms of section 6 only in respect of buildings constructed by a builder. I have examined both these Ordinances carefully and I do not find anything in them to support this view. The word `building' used in section 6 of the Sindh Buildings Control Ordinance, 1979, is not controlled by section 3(d), which is meant for a building constructed by a builder. The word `building' must of necessity be considered in wide terms so as to include its ordinary and common meaning.

13. A grievance was also made on behalf of appellants about the use of evidence recorded in one case in the other. Reliance is placed upon cases of Durga Prasad Singh v. Ram Doyal Chaudhuri, reported in ILR 38 Calcutta 153, and Muhammad Islam v. Abdul Latif and another, reported iii PLD 1957 Kar. 409, to this effect. In both these cases the personal knowledge of the Judge formed the basis of judgment which was not found to be legal. The present appeals have arisen out of rent proceedings in which one should not expect the rigid observance of rules of procedure. In the case of Sheikh Abdul Sattar v. Malik Muhammad Afzal and others, reported in PLD 1985 SC 148, it was made clear that no express procedure was prescribed which the Rent Controller must adopt while dealing with application of landlord seeking ejectment of tenant and the only requirement prescribed in statute was that ejectment of tenant should be ordered only if the Rent Controller was satisfied after giving him a reasonable opportunity of showing cause against application that ejectment was warranted. The copies of approved plan were already on record and no prejudice appears to have been caused to the appc1lants by looking at the approved plans/sanction exhibited in other case.

14. It is also contended on behalf of the appellants that the respondents want to construct a hotel at the site where disputed premises are situated, without making provision for them in terms of subsection (4) of section 15 of the Sindh Rented Premises Ordinance, 1979, which was added by Sindh Ordinance IV of 1984, with effect from 30‑7‑1984, in the following words:‑ "Where the landlord constructs the building as aforesaid the tenant who was evicted from the old building may, before the completion of new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation and the Controller shall make an order accordingly in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality."

15. This question is not free from difficulty. The reconstruction of the premises after obtaining possession does not terminate the tenancy, but subsection (4) of section 15 of the Sindh Rented Premises Ordinance, 1979, does not by itself, impose any restriction or limitation as to the nature and purpose of the new building which is to be reconstructed in place of the old building. In the case of Abdul Bari v. Khadim Hussain reported in PLD 1978 SC 78, this question was examined in relation to parallel provisions o section 13(2)(vi) & (5‑B) of the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed), and was answered in the following words:‑ "The question, however, is whether the law prevents a non‑residential building from being reconstructed into a residential one. Mr. Noori's contention is that if this is permitted then the provisions contained in subsection (5‑B) of section 13 of the Ordinance would be rendered nugatory, as in that case the tenant of a non‑residential building could not, obviously, ask to be put into possession of the new building owing to the change in its character. The learned counsel, therefore, thinks that the provisions contained in clause (vi) of subsection (2) of section 13 should be construed as being subject to subsection (5‑B) thereof. We regret we cannot subscribe to this line of reasoning, as we find that clause (vi) of subsection (2) of section 13 of the Ordinance does not, by itself, impose any restriction or limitation as to the nature and purpose of the new building which is to be reconstructed in place of the old building. If this clause is to be read as being subject to the provisions of subsection (5‑B) of the same section in the sense that the nature and character of the building cannot be changed by reconstruction, then the result would be to prevent future development of property even though its environment and the requirements of the community at large, may have changed. Such an interpretation would be altogether unreasonable and against the public interest, and should be avoided unless the words of the statute are so clear and unambiguous as to make it inevitable. This does not appear to be the case here. We consider, therefore, that the ground of reconstruction mentioned in clause (vi) of subsection (2) of section 13 does not limit the same to reconstruction of a building of the same type and character and for the same purpose, namely, residential or non residential as the case may be. However, the provisions of subsection (5‑B) would come into play if the reconstructed building is of the same type and character and suitable for the same use as was the old building. In other words, the provisions contained in clause (vi) of subsection (2) of this section are subject to subsection (5‑B) thereof only to this limited extent, not and to the extent of preventing a conversion, by reconstruction, of one type of building into another."

16. The cases of Ghulam Nabi v. Mushtaq Ahmad, reported in PLD 1980 SC 205, and Abdul Hadi alias Abdul Hadi Hasan and 2 others v. Syed Ali Haider and others, reported in P L D 1983 S C 342, also support this view. Therefore, the appellants cannot invoke the provisions of subsection (4) of section 15 of the Sindh Rented Premises Ordinance, 1979, at this stage. To establish this right they must first surrender the possession and then wait till the completion of new building for making a prayer before Rent Controller in terms of this subsection. This effort, in my view, is clearly misconceived for the simple reason that it amounts to putting the cart before the horse.

17. Thus, from whatever point of view the matter may be looked at, the appeals are dismissed with no order as to costs. The appellants are allowed two months' time to vacate the demised premises, provided the respondents get the sanction renewed within this period. If the sanction is not renewed during this period of two months or during the period so extended by the Rent Controller for valid reasons, the orders of eviction shall not be enforced. As a result of this order C.M.A. No.1540 of 1986 (F.RA. No.736 of 1983) and C.M.A. No.1447 of 1987 (F.R.A. No.688 of 1989) are also dismissed. A.A./Z‑183/K Appeals dismissed.