1997 PLP 640 (CLC)

(1) Whether the appellants/trustees requires the demised premises for reconstruction in good faith? (2) What should the order be? The respondents/landlords filed affidavit‑in‑evidence of Faqir Muhammad, attorney of the respondents who has produced his power of attorney executed by Trustees of Haji Sir Abdullah Haroon, photostat copy of last rent receipt, photostat copies of sanction, basement plan, first floor plan and front elevation. Appellant/tenant has filed affidavit‑in‑evidence of Mr. Muhammad Usman Ayub, Proprietor of the appellant/tenant. Both the deponents were cross‑examined by the respective counsel for the parties. Learned Rent Controller after recording the evidence and hearing the learned counsel for parties, ordered eviction of the appellant/tenant, hence the appeals have been filed. I have heard the learned counsel for parties and perused the record and proceedings of the cases and the case‑law cited by the learned counsel for parties. Learned counsel Mr. Sajjad E. Halai for the appellant has argued that the sanction has been obtained in the name of a dead person and not in the name of Waqf property, therefore, there was no sanction in the eye of law hence findings of the Rent Controller was erroneous and liable to be set aside in this appeal. He has further argued that none of the officials of the Competent Authority approving sanction has been examined, therefore, the respondents/landlords have not proved the authenticity of the same. He has further argued that no specific reason has been given for the requirements for reconstruction of the building after demolition of the old building. He has referred to the cross‑examination of Faqir Muhammad, attorney of the respondents/landlords and further that period of sanction has expired, therefore, there was no sanction and further that no notice for reconstruction was given by the respondents/landlords. He has also argued that there are other tenants whose cases are pending and in case the appeal of the appellant is dismissed then the eviction of the appellant may be dispensed with till all the tenants are evicted from the building. He has placed reliance upon M/s. Pak Army Furnishing Stores v. Syed Ali Akbar Rizvi and 3 others (PLD 1985 Kar. 201); Agha Haji Hassan v. Shafiqur Rehman (1992 CLC 1945); Haji Abdul Ghaffar v. Gulrez Pasha and others (1989 CLC 260); Abdul Sattar v. Mst. Zaitoon and another (1988 SCMR 1579), Dawood Adam Kabari v. Mst. Khatija Bai (1984 CLC 1713) and Haji Abdullah Khan v. Nisar Muhammad Khan and others (PLD 1965 Supreme Court 690) in support of his contentions. Learned counsel Mirza Aftab Alain Kazilbash for the respondents has argued that neither in the written statement nor in the affidavit‑in‑evidence appellant/tenant has challenged the sanction of the approved plan, therefore, official of the Competent Authority were not called to produce the same, i.e. sanction and approved building plan. He has argued that even if the period of sanction plan has expired, same could be extended after the eviction is ordered. He has further argued that the appellant/tenant has never raised the plea that the sanction was obtained in the name of a dead person, therefore, he could not be permitted to agitate the same now and that no notice to the appellant/tenant was required under the law before approaching the Court for ejectment. First contention of the learned counsel for the appellant/tenant is that sanction for reconstruction has been obtained in the name of dead person, therefore, the ejectment application was not maintainable. Photocopy of sanction letter dated 15‑5‑1990 shows that it was addressed to Mr. Haji Sir Abdullah Haroon (Mutawalli). General power of attorney executed in favour of Mr. Faqir Mohammad would show that the trustees in respect of Waqf of Haji Sir Abdullah Haroon were: (i) Yousuf A. Haroon son of Late Haji Sir Abdullah Haroon, (ii) Mahmood A. Haroon son of Late Haji Sir Abdullah Haroon, and (iii) Abdullah Al‑Husain Haroon son of Late Haji Sir Abdullah Haroon. Sanction issued would show that it was in the name of Mutawalli of Waqf, Haji Sir Abdullah Haroon and the Mutawalli were (i) Mr. Yousuf A. Haroon son of late Haji Sir Abdullah Haroon, (ii) Mehmood A. Haroon son of late Haji Sir Abdullah Haroon, and (iii) Abdullah Al‑Hussain son of late Haji Sir Abdullah Haroon, therefore, the said sanction cannot be said to be in the name of the dead person. Besides the sanction letter, there is also an approved building plan which is the main requirement for the maintainability of the ejectment application. It be stated that no objection was raised either in the written statement or in the affidavit in evidence that the sanction was invalid as it was obtained in the name of dead person though the said sanction has been issued to Mutawalli of Waqf, therefore, there was no substance in the contention of the learned counsel for the appellant. Next contention of the learned counsel for the appellant is that the official of the Competent Authority has not been summoned to produce sanction and building approved plan therefore neither sanction nor building approved plan have been proved according to law. I do not find substance in the said contention as well, considering that no objection was raised to the validity of the sanction and building approved plan either in the written statement or in the affidavit‑in‑evidence filed by the appellant/tenant and further that validity of sanction and building plan were not challenged in the cross‑examination of the respondents' attorney by the learned counsel for the appellant. The evidence of respondents' attorney is consistent with the averments made in the ejectment application and the same has not been denied or rebutted by the appellant/tenant. Presumption under the law would be that sanction and the approved building plan produced and not objected, would have been validly and legally issued/obtained by/from the competent authority by the respondents. Next contention of the learned counsel for the appellant is that no notice of reconstruction was given to the appellant/tenant before filing of ejectment application but no provision of law has been cited whereby it could be said that it was requirement of law to serve the appellant/tenant with notice before approaching the Controller for ejectment. In fact there is no such provision of giving notice before approaching the Rent Controller for ejectment of tenant on the ground of reconstruction of building, therefore, contention' of learned counsel for the appellant has no substance and force. Last contention of the learned counsel for the appellant is that in case their appeals are dismissed then their eviction be dispensed with until the ejectment of all the tenants from the building is made. He has relied upon Dawood Adam Kabari v. Mst. Khatija Bai (1984 CLC 1713) wherein learned) Judge in Chambers observed: "However, in order to be fair to all the five appellants before me and with the consent of the counsel for the respondent I would direct that the respondent will be entitled to have the premises of all the five appellants vacated in accordance with the orders of eviction passed by the Rent Controller but that eviction of those appellants will be deferred till the respondent has obtained the possession of the premises in occupation of Suleman. But in any case all the five appellants will have four months' time from today for vacating the premises subject to their paying the rent to the landlady directly." In the said cited case eviction was deferred till the landlord obtained the possession of the premises in occupation of the tenant but in any case tenants were ordered to vacate the premises within four months' time from the date of the order subject to payment of rent. Eviction was not suspended for unlimited period, therefore, the contention that in case appeals are dismissed the eviction be suspended indefinitely till the eviction of the other tenants against whom the ejectment proceedings were pending, has no merit and substance. However, keeping in view the difficulties and hardship of, the appellant/tenant reasonable time could be given to vacate the premises which being commercial. Learned counsel for appellant has cited (i) Mrs. Zareen and others v. Muhammad Nawab and others (1992 MLD 1690) wherein learned Single Judge held that the provision of sanction plan of reconstruction of building is only requirement under the law and no objection certificate from Deputy Commissioner was not necessary; (ii) Pak Army Furnishing Stores v. Syed Ali Akbar Rizvi and 3 others (PLD 1985 Kar. 201) wherein learned Judge in Chamber observed that the Rent Controller is empowered to see whether sanction approval of plan has been issued by Competent Authority and not by a person not authorised to issue such sanction and approval and further that the Rent Controller can impose proper conditions on ejectment of tenant when there was no statutory bar, in field of fairplay, justice and equity, and further for reconstruction of new building authority under the Building Control Ordinance can impose conditions; (iii) Agha Haji Hassan v. Shafiqur Rehman (1992 CLC 1945) wherein learned Judge in Chamber observed that mere expiry of period for which approval for construction of plan was valid would not defeat the proceedings instituted by landlord after lapse of approval for ejectment of tenant on the ground of reconstruction; (iv) Haji Abdul Ghaffar v. Gulrez Pasha and others (1989 CLC 260) wherein learned Judge in Chamber observed that the provisions of Sindh Rented Premises Ordinance did not require landlord to prove his bona fides for reconstruction; (v) Abdul Sattar v. Mst. Zaitoon and another (1988 SCMR 1579). In the cited case, there is no such decision on the Rented Premises Ordinance but the reported case relates to the Punjab Pre emption Act perhaps there has been misquotation on the part of the learned counsel for appellant, and (vi) Haji Abdullah Khan v. Nisar Muhammad Khan and others (PLD 1965 Supreme Court 690). The cited case is also not on the point, therefore, not applicable. Learned counsel for the respondent has also placed reliance upon Rais Ahmad v. Mian Abdul Jabbar and another (PLD 1972 Lah. 711) wherein learned Judges of Division Bench of Lahore High Court observed that the Rent Controller was required to see the requisite sanction obtained and in case period of sanction has expired the extension could be obtained subsequent to the order of eviction; (ii) PLD 1990 SC 681 is not on the point involved in this appeal; and (iii) 1988 SCMR 396 is also do not on the point involved in this appeal. Contentions of the learned counsel for the appellant have no merit. I do not find anything illegal the impugned judgment and no exception could be taken to the same, hence, both appeals have no merits which are hereby dismissed with no order as to costs. The appellants are directed to hand over the vacant possession of the premises in question within a period of 120 days subject to payment of rent to the respondent/landlord for the said period. H.B.T./N‑15/K Appeals dismissed.