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Second Appeal No. 28 of 1963, decided on 5th November 1963.

S. 13(2)(vi)‑Word "reconstruction"‑Meaning‑Landlord can apply for order directing delivery of possession of building for reconstruction‑Test of re‑erection: Landlord's desire to rebuild and not state of building.

Finding of fact‑Concurrent findings of fact by lower Courts‑Cannot be disturbed in second appeal‑Civil Procedure Code (V of 1908), S. 100.

Dost Muhammad Kamil for Appellant.

Mian Muhammad Younas Shah for Respondent.

Date of hearing: 5th November 1963.

The facts giving rise to this second appeal briefly are that Mian Feroze Shah, plaintiff‑respondent, is the owner of a shop situate in Chowk Resham Garan, Peshawar City, which is in possession of the appellant as a tenant under him on payment of Rs. 100 p.m. as rent. An application was made by K. B. Mian Feroze Shah to the Rent Controller on 6th October 1961 under the Rent Restriction Ordinance for the ejectment of Muhammad Gut appellant from the shop alleging that it was in a dilapidated condition and he wanted to reconstruct it. The application was resisted by Muhammad Gut appellant who contended that the shop did not require repairs or reconstruction. The following issues were framed:-

(1) Whether the petitioner wants to reconstruct the disputed property

(2) Whether the respondent has damaged the property in dispute and that is why the petitioner wants to reconstruct the same

(3) Relief.

2. After recording the evidence produced by the parties, the learned Rent Controller answered issue No. 1 in the affirmative and issue No. 2 against the plaintiff. As a result of his above mentioned findings by his order dated 3rd October 1962, the learned Rent Controller passed an order of ejectment of Muhammad Gut from the property in suit in favour of Mian Feroze Shah. The appeal preferred by Muhammad Gut was dismissed by the learned District Judge by his order dated 16th February 1963. Muhammad Gut has come up on second appeal to this Court.

3. The learned counsel for the appellant contended that there was no material on the record to show that the shop was been demolished by the respondent, and, therefore, section 13 subsection (2) clause (vi) was not applicable. Exh. P. W. 1/1 is the site plan and Exh: P. W. 1/2 is the permission obtained from the Municipal Committee for the reconstruction of the shop. Taking these documents into consideration along with the statement of Shafiq-ul‑Wahab, agent of Mian Feroze Shah, it would appear that the old shop is being demolished and new shops are being built on its site, as the shop cannot be reconstructed unless it is demolished. The reconstruction mentioned in section 13(2)(vi) is not which is the result of the building being in a dilapidated condition or requiring reconstruction on that ground, but what the section contemplates is that the landlord can apply for an order directing the possession to be delivered to him if he requires it for reconstruction or replacement of the building or erection of other buildings. It is not the state of the building which is the test of re‑erection, but it is the desire of the landlord to rebuild it. The evidence on the record shows that the landlord wants to demolish the shop and reconstruct it and the ingredients of section 13(2)(vi) are complied with.

4. Furthermore, the two Courts below have come to the conclusion that the shop was required by the landlord for reconstruction, and, therefore, the concurrent finding of fact arrived at by the Rent Controller and the learned District Judge cannot be disturbed in second appeal.

5. As a result of the foregoing discussion, I maintain the finding of the learned District Judge and dismiss this appeal with costs.

S. Q./K. B. A. Appeal dismissed.

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