1980 PLP 915 (CLC)

5. The defence of the respondent-tenant is that appellant landlord wanted increase in rent as he had been doing in the past.

6. It is true that in 1954 when the rented land was at first lease out to the respondent, rent was Rs. 54.50. On 7th December, 1955; when agreement of tenancy for five years from 1st August, 1954, to 31st July, 1959, was executed the rent of the open plot was fixed a Rs.

100. In 1960, appellant demanded Rs. 250 per month as rent. Or 10th May, 1962, when fresh lease agreement for five years from 1st July, 1961 to 30th June 1966, was executed, rent was increased to Rs. 162.50 The appellant landlord is not legally prohibited from increasing the rent which was raised from time to time with consent of both parties, After the agreement of 1962, there is no reliable evidence to show that appellant demanded more rent.

7. Appellant, by notice dated 1st June, 1966 through his advocate; informed the respondent that he had no intention to renew the lease, a; he intended to construct a new building on the rented land, and, asked the respondent to give vacant possession of the rented land to him.

8. To evict the tenant from the rented land on the ground that the rented land is required for construction of building reference is made to clause (vi) of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, which reads as under :- Section 13 (2).-A landlord who seeks to evict his tenant shah apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that- (vi) the building or rented land is reasonably and in good fail required by the landlord for the reconstruction or erection of building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation Municipal Committee or Town Committee for the area when such building or land is situated : the Controller may make an order directing the tenant to put the landlord in possession of building or rented land..." Thus the landlord appellant has to prove- (i) that the rented land is reasonably and in good faith require by him to erect a building on the site ; (ii) that the landlord has obtained necessary sanction for the erection of the building from the Municipal Corporation.

9. P. W. 1 Behari Lal, attorney of the appellant, deposed the appellant wants to raise three storeyed building on the rented land P. W. Prem, son of the appellant, states t- "As regards my own business I do it in my Clifton house building. My business is suffering as I am at a far-flan; place. We want the building in question for our persona use bona fide. I have design to build the lower (ground floor portion in such a way that I can use it for my own office any the upper floor can be used as a clinic by my younger sister." Appellant wants to develop the open plot and raise construction thereon. This is quite reasonable requirement. Same view was taken in Haji Mauladad v. Haji Sayed Sardar Khan (P L D 1972 Quetta 39).

10. With regard to bona fides of the appellant to erect a building on the rented land, if he fails to erect it, he is liable to be convicted under subsection (5) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. In Amir Din Allah Ditta v. Seth Adamji Abdullah (1969 S C M R 131) in application for ejectment under provisions of section 13 (2) (vi), bona fides of the landlord was not found to be relevant in view of safeguard contained in subsection (5) of section 131_(ibid). The Supreme Court at page 132 said :- "The argument that the respondent's requirement of the new building was neither reasonable nor bona fide was not relevant to the disposal of the ejectment petition filed under section 13 (2) (vi) of the Ordinance aforesaid. The Penal provisions contained in subsection (5) of section 13 of the Ordinance aforesaid is an adequate safeguard against a landlord acting in bad faith."

11. In this case, application for ejectment was filed on 28th July, 1966, while sanction of Karachi Municipal Corporation for erection of a building on the rented land was obtained on 10th January, 1967. It is urged by the respondent's counsel that ejectment application, without having first obtained the sanction of the Corporation, was premature. It is not correct. Ejectment of the respondent could be ordered by the Rent Controller under clause (vi) of subsection (2) of section 13, when the Rent Controller is satisfied that the rented land is reasonably and in good faith required by the landlord for erection of building thereon, coupled with the sanction of the Corporation for the erection of such building. Sanction, contemplated under clause (vi), is necessary before Rent Controller passes orders for eviction : it is not requirement of law that sanction of the Corporation should have been obtained before 't making the application under section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The application for ejectment, of, respondent was not, therefore, premature.

12. The attorney of appellant, Behari Lal, P. W. 1, produced an approved plan of building by the Architect, Karachi Municipal Corporation. The Rent Controller, after seeing the original, returned it, after retaining true copy of the sanction on the record. Counsel for the respondent did not object to the admission of the approved plan and/or return of its original with true copy. A the record. Counsel for the respondent did not object to the admission of the approved plan and/or return of its original with true copy on the record The Evidence Act in terms does not apply to the proceedings, under the West Pakistan Urban Rent Restriction Ordinance, 1959 (1976 S C. M C 229). Any building plan sanctioned by the Municipal Committee/ Corporation is a public document. Public document is deemed to be genuine unless proved to the contrary. It is, therefore, admissible without formal proof. I am fortified in this view (All Muhamr"ad V by the case of Akhtar Sultana v. Dr. Abdul Rauj Nagi (P L D 1978 Lah. 347) where at pages 352 and 353, the Court said :- "The next question to be determined is whether the appellant did not require the building for re-construction reasonably and in good faith and as to whether necessary sanction for reconstruc tion had been obtained. Learned counsel for the respondent raised a legal objection that the original plan for reconstruction bearing the original sanction of the authorities produced from the appellant side has not been proved in accordance with law. He had relied on Mian Taj Din v. Messrs Royat Engineering Works. No objection was raised before the learned Controller nor before the learned lower appellate Court with regard to the proof of admissibility of the sanctioned plan Exhibited as P.

3. The appellant's attorney, namely, her son is himself an employee of the Municipal Committee. He produced and proved the original plan for reconstruction Exh. P.

3. Mention of this very plan was made in para. 4 of the eviction application. The fact that the plan had been sanctioned was not disputed in the corresponding para. 4 of the written-statement instead, plea was taken that the plan in question for reconstruction was only a contrivance for getting the building vacated from the respondent. Apart from the admission in the written statement, it cannot be ignored that no objection was raised with regard to the admissibility proof of the plan at any other stage. Their Lordships of the Supreme Court were pleased to hold in Javid Igbal v. Rana Muzafar Khan that the Evidence Act in terms does not apply to the proceedings under the Rent Restriction Ordinance. In view of what is stated above, it is not necessary to discuss the ruling in the case of Mian Taj Din cited by the learned counsel." However, it is observed in para 6 thereof at page 721 of the report that 'the plan sanctioned by the Municipal Committee/ Corporation is also a public document since it is a record under the Municipal Administration Ordinance, as is clear from section 77 (5) thereof, which reads as follows :- A Municipal Committee may sanction a site plan or a building plan subject to such modifications or terms as may be specified in the order of sanction." The sanction of site or building plan has, therefore, to be retained by the Municipal Committee as a matter of record for future reference and for taking action under section 78, if necessary. A copy of this document is always available from the Municipal Corporation on payment of the requisite fee. In the present case, it appears that one original might have been retained by the Municipal Committee but another original plan which bears the endorsement of sanction and original signatures thereon of the sanctioning authority (Exh. P. 3) was produced by the appellant. Thus, Exh. P. 3 would be covered by the above-quoted observations. That being so, according to section 127 of the Municipal Administration Ordinance read with Article 96 of the Basic Democracies Order, Exh. P. 3 being an authentic document of record of the building plan sanctioned by the Municipal committee shall be deemed to be a public document and that on it shall be deemed to be genuine unless contrary is proved In the light of what has been discussed above, there is no force in the technical objection raised by the learned counsel for the respondent."

13. Since no objection was taken to the formal proof of the, document at the earliest point of time, it cannot be taken subsequently. B Following observations at page 14.5 of the report (P L D 1968 S C 140) may be read with advantage :-- The Code of Civil procedure provides for the admission of documents and it is now well settled that if objection to the formal proof of a document has not been taken at the earliest point of time it cannot be taken subsequently and certainly not in appeal. As observed by the Judicial Committee of the Privy Council in the case of Gopaldas v. Shri Thakurji where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an Exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial.' The record in the present case does not also disclose that any objection was taken by the pre emptors to the proof of this document when it was produced in Court by the counsel for the vendees and marked as an exhibit. The document not having been objected to must be deemed to have been admitted and, as such, the trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. The document having been marked as an exhibit without objection became admissible in evidence and was rightly taken into consideration by the High Court."

14. It is clear from the evidence of P. yWs. Beharilal and Prem that appellant requires the rented land to construct building thereon to enable his son Prem to locate his business office and his daughter who is a lady doctor to have her clinic on the upper floor. Prem says his business is suffering because he does the business in his house building at Clifton. Both the son and the daughter of appellant are not occupying any other building in Karachi for their business purposes. In the result, appeal is allowed : judgment of IV Additional District Judge, Karachi is set aside : order of the Rent Controller Karachi, is restored. Respondent to bear the costs of appellant. M. Y. M. Appeal allowed