1983 PLP 509 (SCMR)

‑‑ S. 14 read with S. 13‑Ejectment on ground of re‑construction of property‑Order of Rent Controller granting ejectment set aside by first appellate Court for reason that landlord had neither obtained proper sanction of Municipal Corporation nor submitted approved plan‑Fresh application of landlord seeking ejectment on ground of re‑construction after complying with requirements of law‑Held, not barred. M. Sardar Khan, Advocate Supreme Court of Pakistan and M. QM, Imam, Advocate‑on‑Record for Appellants. A. Hakim Khan, Senior Advocate Supreme Court of Pakistan and Noor Ahmed, Advocate‑on‑Record for Respondent. Date of hearing : 2nd February, 1983. MIAN BURHANUDDIN KHAN, J.‑These are 15 appeals regarding the same property situate in a Serai owned by Mian Musharaf, respondent (since dead) and now represented by his legal heirs). (Late) Mian Musharaf Shah sought ejectment of the petitioners numbering 16 in all at that time, on the ground that he wanted to re‑build the said shops. This application for ejectment was accepted by the learned Rent Controller, Peshawar vide his order dated 30‑4‑1970. On appeal, the said order was set aside and the case was remand ed by the learned Additional District‑ Judge, Peshawar for recording of evidence in each case separately. After remand, and complying with the order of the learned Additional District Judge, the Rent Controller again passed an order of ejectment against the petitioners on 20‑1‑1971‑. The petitioners filed appeals which were accepted by the learned Additional District Judge vide order dated 29‑6‑1971 setting aside the order of the Rent Controller. Respondent then filed appeals in the Peshawar High Court which were dismissed in limine vide judgment dated 15‑12‑1971.

2. Mian Musharaf Shah the landlord filed another application for eviction of the petitioners on 5‑5‑1972 on the ground of re‑construction of the premises and on the plea that the shops in question were in dilapidated and dangerous condition. After recording the evidence the learned Rent Controller passed order of eviction against the petitioners on 13th June, 1972. Against the petitioners filed appeals which were heard by the learned Additional District Judge, Peshawar who, by single judgment dated 17‑2‑1973 set aside the order of the Rent Controller on the ground that the respondent/landlord ejectment on the same ground on which his previous application was dismissed. Appeals filed by the landlord in the Peshawar High Court were accepted on 1‑4‑1977. Petitioners (present appellants) filed Civil Petitions for Leave to Appeals Nos. 45‑59/P of 1977 in this Court and leave was granted vide order dated 22‑4‑1979.

3. Learned counsel contended that the previous application of the landlord/respondent was rejected vide order dated 15‑12‑1971 and, therefore, subsequent application, under the same provision of law raising essentially and substantially the same questions or issues was barred under the provisions of section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959. We have not been‑impressed by the argument of the learned counsel as in the pre vious application filed by the respondent for eviction of the petitioners from the property in. question, the ground was the re‑construction of the property but the (respondent) had not obtained proper sanction and approval of the Municipal Corporation and had not submitted the Approved Plan in evidence of having obtained the sanction of the authority concerned. Thus, it cannot be said that this time the respondent/landlord was barred to seek ejectment on the ground of re‑construction after complying with the requirements of law. The previous order dated 15‑12‑1971 also says "this order will not preclude the appellant from re‑constructing or re‑building the disputed property for all times. We therefore, find no merit in these appeals and the same are accordingly dismissed. Appeals dismissed.