1994CLC865 (PLP)

(2) Whether the petitioner has given correct description of property in dispute? OPA. (3) Whether the building in dispute is in dilapidated condition and is required in good faith by the petitioner for reconstruction purposes? OPA. (4) Relief. The learned Rent Controller found issues Nos.l and 2 in favour of the landlady whereas issue No.3 was decided against her and as a result thereof ejectment petition was dismissed vide order dated 26‑10‑1983.

3. Mst. Hassan Bibi aggrieved of the dismissal of her ejectment petition filed an appeal which too was dismissed by the learned District Judge, Sahiwal vide judgment dated 24‑3‑1984 mainly on the ground that the Chairman Municipal Committee was not competent without a resolution passed by the Municipal Committee to give sanction for the building plan.

4. The other grounds favoured to the two Courts for rejection of the ejectment petition were that building was not in a dilapidated condition and that there being nine occupants in different portions of the building, they as per site plan after reconstruction could not be accommodated. That except sole statement of the landlady, there was no evidence on record to substantiate the fact of dilapidated condition of property and need of reconstruction. The respondent lady aggrieved of the order dated 24‑3‑1984 of the Appellate Court, filed Writ Petition bearing No.578 of 1985 before this Court which was accepted vide judgment dated 11‑6‑1991 and the case was remanded to the learned Appellate Court to reconsider the question of requirement of the building by the respondent lady for reconstruction. Judging the question of validity of site plan in question under The Punjab Local Councils (Business) Rules, 1980 framed under West Pakistan Local Government Ordinance, 1979, it was held that the Chairman being a delegatee of the powers of Municipal Committee in respect of certain matters, by virtue of Rule 9 of the said Rules, was empowered to sanction the site plan, as a result thereof, the site plan was declared to be properly sanctioned, and the case was remanded back for a fresh decision on the question of bona fide requirement for reconstruction of the premises in the light of law laid down by the superior Courts.

5. In post‑remand proceedings, the Appellate Court while concluding that there being a penal clause providing safeguard of the right of tenants and their liability under section 5(a)(b) of the West Pakistan Rent Restriction Ordinance, 1959 was sufficient to demonstrate the bona fide need of reconstruction of the premises. That the landlady was not bound either to reconstruct the premises in the manner as per need and demand of tenants or every one of them to be necessarily accommodate leaving no choice for her to change the character of the building or develop its status to get maximum benefit of the property. It was observed that the only requirement of the law was to accommodate the evicted tenants in a suitable manner. The learned Court further held that the sanction of site plan was a sufficient proof of the bona fide need of the landlady and her statement on oath was enough to prove her bona fide requirement.

6. The appellants aggrieved of the order of their ejectment by the Appellate Court and the acceptance of the ejectment petition, filed the present appeal before this Court inter alia on the following grounds:‑ (i) That this Court in exercise of Constitutional jurisdiction while accepting the writ petition set aside the orders of the Appellate Court dismissing the appeal of the landlady but the order of Rent Controller of dismissal of the ejectment petition remained intact. (ii) That pending disposal of appeal, the appellants moved an application under Order XLI, Rule 27, C.P.C. to place on record the certified copies of the orders passed by the Rent Controller; on ejectment petition moved by the landlady, pending disposal of her appeal before the first Appellate Court, but the learned Court, without disposing of said application decided the appeal. (iii)That the dismissal of two ejectment petitions titled Hassan Bibi v. Bashir Ahmad etc. and Hassan Bibi v. Aslam etc. subsequently filed by the landlady on the ground of causing damage to the property was a positive proof of good condition of the property and as such, the bona fide requirement of the landlady for reconstruction stood demolished. (iv) That reducing the number of shops in the reconstruction of the property, instead of improving its value shall devalue the same which evidently was not in good faith. (v) That the change in the condition of the building during the pendency of ejectment petition could not be a ground available to the landlady for the ejectment of the tenants.

7. Conversely, learned counsel appearing on behalf of the respondent landlady submitted that after remand of the case, the only ‑question left for determination was the bona fide requirement of the lady. The remaining question regarding the validity of the site plan having attained finality for want of challenging cannot be reopened for the purpose of present appeal. He argued that application under Order XLI, Rule 27 was not pressed by the appellants before the first Appellate Court which was not required to be finally disposed of before the disposal of appeal. He, however, has no objection for taking judicial notice of the documents by this Court, which the appellants wanted to place on record. In relation to the issue of bona fide requirement, he argued that the sole statement of the landlady was sufficient to establish her bona fide requirement for reconstruction and the Katcha construction of walls was admitted by Iftikhar R.W. saying: "Lepay Ghara se hai". He urged that landlady wanted to improve the value of property by way of Pakka construction and she has every right to improve her property and utilize the same in her best judgment with no outside restriction.

8. The only requirement of law is that the evicted tenant shall have the first right to be accommodated, if the property is to be rented out for a commercial or residential purpose, as the case may be after the reconstruction. He next submitted that the purpose of law and the justice is not to be defeated on the basis of technical objection. According to him the appeal of landlady was dismissed by the learned District Judge on 24‑3‑1984 whereas the second ejectment petition filed by the landlady was decided in January, 1992, i.e. about six months before the remand of case by High Court and application under Order XLI, Rule 27, C.P.C. was filed on 4‑2‑1992 on which date the appeal was to be finally disposed of. He, however, under instructions from her client has offered to accommodate the appellants in a suitable manner after reconstruction through negotiation on the terms and conditions to be settled amicably between the parties.

9. The sole question for determination for the purpose of disposal of the present appeal is whether the requirement of landlady for reconstruction of the disputed premises was reasonable and bona fide or she with the purpose to eject the tenants moved the ejectment petition. The first objection raised by the learned counsel that the remand order in the writ petition did not affect the order of Rent Controller is devoid of force. The appeal being in continuation of the ejectment proceedings, the order of Rent Controller emerging in order of Appellate Authority was set aside by the High Court in writ petition and thereafter the appellate authority while accepting appeal of landlady passed the ejectment order against the appellants. The second contention raised by the learned counsel that the decision of appeal without disposal of the application under Order XLI, Rule 27, C.P.C. caused serious prejudice to the appellants has also no substance to be agitated for the simple reason that the documents which were required to be placed on record by the appellants pertained to the dismissal of subsequent ejectment petition filed by the landlady on a separate ground of causing damage to the property by the appellants. The failure of that ejectment petition has no nexus' with the ground of bona fide requirement of reconstruction taken by the landlady in the petition in the present case. The property, if was found not damaged by the tenant, it did not mean that its condition was not of that to be reconstructed or that the landlady was precluded from improving the condition and the value of her property. I while taking judicial notice of the documents in question consider that disposal or acceptance of subsequent ejectment petition on the ground of causing damage to the property, shall have no effect to the proposition involved in the present appeal. The contention raised having not been pressed before the First Appellate Court is not entertainable and shall be deemed to have been waived with result of dismissal of said application.

10. With regard to the issue of bona fide requirement for reconstruction of the premises in dispute, it is suffice to say that the landlady while appearing in the witness‑box by way of making statement on oath, has proved reasonableness of requirement for reconstruction which is a strong evidence proving the ground of bona fides and there being no evidence contrary to her claim, the requirement for reconstruction being reasonable was proved for the eviction of the appellants from the premises. The question of reasonable requirement is to be judged by the learned Rent Controller in his discretion on the basis of evidence before him but this discretion is always to be exercised judicially. The law does not restrict the landlord/owner of the property not to enjoy the fruits of his property and utilise it according to his desire and wish. The right of a tenant is only to the extent of his tenancy under the relevant provisions of law and not more than that. The tenant has no right to restrict the landlord either to reconstruct the property as per his desire or to bind him to act as per need and desire of the tenant and if this is permitted it would amount to creating share of the tenant in the title of the property. The safe guard provided for the tenant is to give first right to him to be accommodated after reconstruction but a landlord if wanted to convert the commercial building containing shops into a big shop, the occupants cannot stop him from raising the construction or improving the value and status of the property, therefore, the accommodation of all the tenants in such circumstances shall not be possible. Similarly if the landlord in a peculiar circumstance ‑wants to convert the commercial property into residential, the tenants have no right to restrain him from using his property as per his desire and in such situation the question of renting out the property to the tenant after reconstruction for re‑accommodation of the evicted tenant is dependable on the circumstances of each case vis‑a‑vis the provisions of the law on the subject. However, a landlord who after taking over the possession of the premises does not reconstruct the property as per his requirement on the basis of which he sought the ejectment and got the possession or that after reconstruction, if the property was required to be rented out, he with no excuse refused to accommodate the evicted persons on the terms and conditions settled or was not prepared to accept them as their tenants, the law shall take its own course. Therefore, there is sufficient safeguard for the evicted tenant in both eventualities, which is a strong test of the bona fides requirement of the landlord. In the present case, the landlady through the evidence on record has proved her reasonableness of requirement for reconstruction and her bona fides remained unchallenged for want of proving the mala fides. To the contrary, she has successfully made out p a case of ejectment of the appellants. The findings of the First Appellate Court does not suffer from any infirmity or to be treated as perverse or contrary to the evidence on record, therefore, the same do not call for interference by this Court in the second appeal which stands dismissed with no order as to costs. However, the appellants are granted four months time to hand over the vacant possession subject to their paying the rent, to the landlady directly or by depositing the same in terms of the order under section 13(6) of the West Pakistan Rent Restriction Ordinance, 1959 passed by the Rent Controller. In case of failure on the part of the tenants to make payment or deposit the same as the case may be, the landlady shall be at liberty to file execution application, otherwise the appellants shall surrender the vacant possession on the expiry of four months. AA/M‑1333/L Appeal dismissed.