2004 PLP 176 (CLC)

8. On the other hand Mr. Saeed Baig, learned counsel representing respondent No. 1 argued that there was concurrent findings of, facts of the Courts below which cannot be interfered with in second appeal unless there is a question of law agitated by the appellants.

9. It was also argued that the landlord had successfully proved his case; that he required, the shop in question for his son Noor" Muhammad. He was not cross‑examined by the appellants. Statement of Haji Amir Maqsood recorded in another case was placed on file as Exh.P. W.A/1.

10. It was also argued that the, provisions of Transfer of Property Act were extended to the area vide Regulation‑II of 1974 on 20‑5‑1974 and the alleged rent deeds were executed on 7‑2‑1974 and 8‑3‑1974. As per section 7 of the Transfer of Property Act, the agreement was to be registered and as per section 111 of the ibid Act in case of denial of title by the tenant he was not entitled for protection of section 109 of Transfer of Property Act.

11. It was also argued that the impugned judgments and decrees were based on proper appreci9tion of evidence and need no interference.

12. I have heard the learned counsel for the parties and perused the record.

13. The eviction petition was filed by respondent No.1 for eviction of appellants from the disputed promises on 3 grounds:‑‑‑ (i) Default in payment of rent. (ii) Reconstruction of the property in dispute. (iii) Personal need.

14. So far as the plea of the default in payment of rent is concerned, the allegation of respondent No.1 was that appellants had failed to pay monthly rent with effect from 22‑7‑1996. Despite notice of change of ownership served upon them, he could not substantiate his plea of default. The previous owner, namely, Khizar Hayat appeared twice. He was once produced by respondent. No. 1/landlord and for the second time by the appellants as R.W.1. In his statement, Khizar Hayat sated that he had received monthly rent up to July, 1997 and thereafter appellants did not pay him any rent. The learned Rent Controller, keeping in view the statement of Khizar Hayat, held that appellants were not rent defaulters. This finding was concurred by the learned District Judge/Zilla Qazi Chitral and the respondent No.1‑did not further challenge the same, therefore, findings on the question of default have become final. Appellants are not willful rent defaulters.

5. So far as the plea of reconstruction of the property in dispute is concerned, the provisions of section 13(2)(vi) of the Urban Rent Restriction Ordinance, 1959 'are very clear, the same is quoted hereunder for convenience: "vi. The building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a 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 where such building or rented land is situated". The plain reading of the afore‑quoted provision of law indicates that in order to get an eviction order on the basis of reconstruction of property, the landlord has to obtain necessary sanction for the said construction or erection from Municipal Corporation, Municipal Committee or Town Committee or Town Improvement Trust for the area where such building or rented land is situated. If such a property is situated in Cantonment area, then necessary sanction is to be obtained from Cantonment Board.

16. The perusal. of the record shows that respondent No. 1/landlord in order to prove the plea of reconstruction placed on record copy of the site plan which was exhibited as Exh.P.W.1/2. No doubt this document was exhibited without any objection from the other side but the site plan exhibited on record was not sanctioned from the Municipal A Committee or Town Committee of the concerned area, therefore, respondent No.1 has failed to comply with the requirements of law. A similar question came up for hearing before the august Supreme Court of Pakistan in Messrs Ismail Brothers v. Kewalram 1980 SCMR 776 in which it was held:‑‑‑ "A Controller cannot pass an order of eviction unless the landlord proves that he has obtained the necessary sanction for the said reconstruction or erection". Keeping in view the above quoted provision of law and the dictum laid down by august Supreme Court of Pakistan, it is held that no eviction order on the basis of site plan which had not been sanctioned by the competent authority, mentioned above, could be passed. The Court below have failed to take into consideration the law applicable I, therefore, reverse the findings given on the plea of reconstruction by the Court below.

17. So far as the plea of personal need taken by respondent No. 1 is concerned, he proved the same through convincing evidence. In para 3 of his eviction petition he stated:‑‑‑‑

18. No doubt he did not mention that the property in dispute was required for Noor Muhammad his son. In the above quoted paragraph 1 he had stated that each of his 3 sons was jobless. In his statement he further clarified that the shop in dispute was needed for his son Noor Muhammad, who was married and father of 2 children and wanted to run a separate hotel business, therefore, the shop in question was required for his use. This witness was subjected to lengthy cross‑examination but nothing favourable could be extracted by the appellants. In cross examination, this witness denied that his son Noor Muhammad was serving in Adda or was driving a Toyota Hiace but stated that he was jobless, Khizar Hayat, the ex‑owner was examined as P.W.2. He also stated that Noor Muhammad, son of respondent No.1 was father of. 2 children and was jobless. Noor Muhammad appeared as P.W.3 and stated on oath that he was father of 2 children, was jobless and wanted to run hotel business therefore, the premises in dispute was required by him in good faith. He was also cross‑examined at length but his statement was consistent and could not be shattered in cross‑examination. The statements of the landlord and his son were consistent with the averments of eviction petition and as mentioned above, the same could not be shaken in lengthy cross‑examination or disproved in rebuttal. Even a solitary statement of the landlord was sufficient to prove his bona fide. Reliance in this regard is placed on the following reported judgments:‑‑ (i) Iqbal Book Depot v. Khatib Ahmad and 6 others 2001 SCMR 1197, (ii) Sardar Nabeel Wali v. Additional District Judge/Appellate Authority Sahiwal and others PLD 2000 SC 829, (iii) Muhammad Shuaib Alam v. Muhammad Iqbal 2000 SCMR 903, (iv) Juma Sher v. Sabz Ali 1997 SCMR 1062, (v) F.R. Irani and Co. v. Begum Feroz 1996 SCMR 1178, (vi) Jahangir Rustam Kalia v. State Bank of Pakistan 1992 SCMR 1296 and (vii) Muhammad Iqbal v. Sardar Bacha and 2 others 2002 YLR 1940.

19. So far as the argument of the learned counsel for the appellant that the respondent No. 1 had got vacated one shop from another tenant, namely, Khawaja Rahmat, therefore, as per provision of subsection (3) of section 13 of Urban Rent Restriction Ordinance, 1959, if landlord got his property vacated for his personal need, he could not get the other property vacated unless the same was insufficient for his requirement. This argument of the learned counsel has no force. Firstly because respondent was subjected to lengthy cross‑examination and not a single question was asked as to whether he got any property vacated from Khawaja Rahmat and that the said shop was in his occupation. Secondly, the statement of respondent No.1 which was recorded in another case, was placed on file as Exh.P.A./1. The said statement was never confronted to by respondent No.

1. Thirdly, if any shop was even got vacated, the same may be in possession of respondent No.

1. Since Noor Muhammad, the son of respondent No.1/landlord wanted to run a hotel, therefore, there was no evidence to show that the shop so got vacated from Khawaja Rahmat was sufficient for his requirement and that the I same was in his possession. Even otherwise it was the prerogative of the landlord to choose from all the several tenements occupied by tenants to avail of the personal requirement. Wisdom in this regard is gained from S.M. Nooruddin and 9 others v. SAGA Printers 1998 SCMR 2119, wherein it was held:‑‑‑ "The law is too well‑established on the point that a landlord had a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest cases of bad faith".

20. Likewise in Shahzada Ayyaz v. Mst. Zainab Bibi 2000 SCMR 485, Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 and Nasrulah Jan v. Mst. Farzana Begum 2002 CLC 1523 same view was taken. In the first cited authority i.e. 2000 SCMR 485 the august Supreme Court of Pakistan observed as under:‑‑‑ "It has been laid down in numerous cases that the choice to occupy a particular shop cannot be denied provided the landlord proves that he had no other shop suitable for his business and that the shop in question would suit his requirement and which he requires in good faith for his own occupation. If the tenant is unable to prove occupation of any other shop by the landlord sufficient for his requirement, then he cannot be allowed to say that the landlord should occupy another shop than the one in his possession".

20. There is another aspect of the case that the appellants/tenants have been given protection under subsection (4) of section 13 of Urban Rent Restriction Ordinance, 1959 that if the landlord obtains possession of a building in pursuance of an order made under sub‑paragraph (i) or sub‑paragraph (ii) or paragraph (a) of subsection (3) does not himself or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining possession, or having been so occupied is re‑let within two months of the said date to any person other than the original tenant, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly. Therefore, in case of failure of landlord to occupy suit shop within the stipulated period, the tenant has every right to seek repossession by filing an application in the Court of Rent Controller. Wisdom in this regard has been sought from the following reported judgments:‑‑ (i) Nasiruddin v. Muhammad Siddique 1981 SCMR 709, (ii) Mst. Toheed Khanum v. Muhammad Shamshad 1980 SCMR 593 and (iii) Nasrullah Jan v. Mst. Farzana Begum 2002 CLC 1523.

21. The argument of the learned counsel for the appellants that the appellants had purchased land measuring 24 feet from Khizar Hayat, ex owner for a sum of Rs.40,000 out of which they paid Rs.36,700 on execution of receipts Exh.R.W.1/1 to 1/7 and the Courts below did not consider these receipts has no force at all. The examination of the receipts shows that Exh.R.W.1/1 and 1/2 were receipts of rents, whereas Exh.R.W.1/3 to 1/7 are receipts through which various amounts were paid to Khizar Hayat, but it is not clear as to whether the said amount was paid towards the sale consideration or not. Perusal of the record shows that Khizar Hayat was once examined by the respondent No.1/landlord as P.W.2 and for the second time by the appellants as R.W.1. While appearing as P.W.2 in cross‑examination he stated:‑‑ While appearing as R.W.1 though he placed on record receipts Exh.R.W.1/1 to 1/7, in his examination‑in‑chief, but he termed those receipts to be rent receipts and never stated that through these receipts he received any part of the sale consideration. The appellants had failed to prove that they had purchased the land underneath the Hotel from Khizar Hayat. Another factor which goes against them is that they had paid the monthly rent to Khizar Hayat till 1997. If the appellants had purchased the land underneath the Hotel in the year 1985, then why did they keep on paying the monthly rent to Khizar Hayat till 1997, more specially when superstructure of the shop had allegedly been constructed by the appellants. The answer to this question is not available from the record. The corollary of the foregoing discussion is that the appellants failed to prove that they h9d purchased the land underneath the Hotel in dispute.

22. Keeping in view the above discussion, I find no justification to interfere with the impugned judgment/decree, dated 13‑5‑2002 passed by the learned District Judge/Zilla Qazi Chitral. Resultantly, the appeal in hand is dismissed with no orders as to costs. The appellants are directed to hand over vacant possession of the property in dispute within three months to respondent No.

1. M.H./928/P Appeal dismissed.