Find a Lawyer

Second Appeal from Original Order No. 285 of 1972, decided on 19th February, 1980.

‑‑S. 13 (2) (vi)‑Ejectment proceedings‑Reconstruction‑Property situate in business centre obviously get increased in value and rental income after reconstruction‑Building plan sanctioned‑Averments of petition standing corroborated‑Reasonableness of requirement to erect building in good faith‑Held, established in circumstances.

Haji Mauls Dad v. Haji Syed Sardar Khan P L D 1972 Quetta 39 ; Messrs Allah Ditta v. Seth Adamji Abdullah 1969 S C M R 131 ; Syed Sbin Gul v. Haji Abdul Majid R L D 1968 Quetta 45; Abdullah Baloch v. Adam Ali P L D 1962 S C 28 and Ha/1 Allah Ditta v. Mst. Shahaadi Bilqis and another 1980 S C M R 41 ref.

‑‑S. 13 (2) (vi)‑Ejectment proceedings‑Reconstruction‑Landlord succeeding to establish that he required property in good faith for its reconstruction‑Failure of appellant to eject one of his tenants in a previous ejectment proceeding in same building, held, has no bearing on subsequent ejectment petition ‑Initiation of ejectment proceedings against all tenants rather strengthening landlord's case‑Inference drawn otherwise by appellate Court ill‑founded‑Order of ejectment passed by Rent Controller restored.

Syed Shin Gul v. Haji Abdul Majid P L D 1968 Quetta 45 ref.

Kh. Mohammad Farooq for Appellant.

Syed Farooq Hassan Naqvi for Respondent.

Date of hearing : 27th January, 1980.

This judgment shall dispose of S. A. O. No. 285/72, S. A. O. 286/72 and S. A. O. No. 287/72, as these appeals arise out of the same order of the learned Additional District Judge and common questions of law and facts are involved therein.

2. Precisely put the facts of the case are, that the appellant is the owner of the building comprising four shops; out of which he occupies one shop whereas the remaining 3 shops are with the respondents as tenants. He sought their ejectment on the ground of reconstruction. His case is that he wants to demolish the entire structure and reconstruct a new three‑story building. In the ejectment petition, giving rise to S. A. O. No. 287/72 the appellant raised an additional plea of subletting the shop by respondent No. 1 to respondent No. 2.

3. The respondents resisted the ejectment petitions on the common ground that the building was in good condition and the appellant merely wanted to increase the rent.

4. The appellant tendered in evidence the building plan sanctioned by the Municipal Committee; examined an official of the Municipality to prove the sanction and also himself appeared in the witness‑box as his own witness. He contended that he required the demised premises for recons truction of a new building. The respondents examined a number of witnesses; their evidence was to the effect that the building was in good condition and that the appellant's demand for increase in the rent, was the real dispute between the parties.

5. The ejectment petitions against respondents in S. A. Os. 286/72 and 287/72 were accepted by the learned Rent Controller on 15‑9‑1971, whereas in the third petition the respondent's ejectment was ordered by an another Rent Controller by his order dated 4‑3‑1972. He discarded the respondents evidence and came to the conclusion that the property was needed by the appellant reasonably and in good faith for reconstruction of the building. The learned Additional District Judge through a single order dated 16‑6‑1972 disposed of the appeals filed by the tenants. He was of the view that the appellant did not produce any evidence other than the building plan to establish that he had to demolish the existing construction and in good faith reconstruct a new building. In his opinion mere production of the sanctioned plan was not sufficient to prove the appellant's bona fides. He also held that the appellant earlier filed two ejectment petitions; the first one was instituted on 6‑9‑1963 and the second on 18‑4‑1969 both the petitions were dismissed; the third ejectment petition giving rise to the present litiga tion, was instituted by him during the pendency of the second petition. The learned Additional District Judge further maintained that the respondents' allegation that the appellant wanted to enhance the rent, found support from the latter's conduct. His conclusion was that the appellant failed to prove that he required the building reasonably and in good faith for reconstruction. He thus set aside the findings of the learned Rent Controller and dismissed the ejectment petitions. The landlord has now come up in second appeal.

The appellant's learned counsel confined his submissions only to the question of reconstruction of the building. He argued that the evidence or, the record sufficiently proved that the appellant intended to develop his property reasonably and in good faith. It was argued that the development of his property by a landlord was a valid ground for eviction of a tenant in contemplation of section 13 of the Ordinance. In this connection he heavily relied on the respondents' statement, the building plan and the extension in the sanction obtained by him from the Municipality from time to time. The learned First Appellate Court's reliance, on ejectment petition previously instituted by the appellant, was also assailed by the learned counsel. It was forcefully urged that the previous two ejectment petitions were filed against Mahboob Hussain and his father Ahmad Yar, who are respondents in S. A. O. 287/72, on the basis of default in payment of rent and subletting, the first one was dismissed and whereas the second petition was withdrawn. The learned counsel further contended that fresh cause of action accrued to the appellant on the ground as re‑construction of the building. He relied on Haji Maula Dace v. Hail Sardar Khan (P L D 1972 Quetta 39) and Messrs Allah Ditta v. Seth Adamji Abdullah (1969 S C M R 131). On behalf of the respondents it was argued that the building was in good condition; the ejectment petitions were being used by the appellant merely as lever to increase the rent. The respondents learned counsel supported the impugned order and submitted that the burden to prove that the building was required by the appellant reasonably and in good faith, for constructing a new building heavily rested on the appellant and his solitary statement coupled with the production of the sanctioned building plan was not enough to discharge the onus. He argued that the appellant's plea to rebuild the property was neither reasonable nor in good faith Reliance was placed by him on Syed Sbin Gul v. Haji Abdul Majid (P L D 1968 Quetta 45) and Abdullah Baloch v. Adam All (P L D 1961 S C 28).

I have gone through the record and examined the evidence produced by the parties. It is in the statement of the appellant, as recorded in the three petitions, that the structure of the building is fairly old; it is a corner building situated in a commercial locality; one side of the building abuts on Hussain Agahi Road and the road level on this side is lower than the other side; he has to construct as additional shop towards Hussain Agahi Road; the addition of shop and construction of flats would increase the value of the building. He also deposed that after construction of the new building he would occupy it partly and lease out the rest of the building. The appellant has also tendered in evidence the sanctioned plan of the building. During arguments, the appellant's learned counsel unequivocally stated that the appellant has no intention to completely dislodge the respondents; and that new business units would be erected in the building they may occupy the same in accordance with the provisions of section 13 (5‑8) of the Ordinance. I do not think that there is anything unreasonable in the appellant's plan to erect a new building in place of the existing one or his conduct is mala fide. The property is situate in a business center and obviously by the erection of the new building, its value and rental income will increase. The appellant tendered in evidence the sanctioned building plan and appeared in the witness box. The averments made in the ejectment petition stood corroborated by his testimony. In the circumstances of the case with other evidence of his good faith and reasonableness of the requirement to erect the building could have been produced by him

6. In Haji Maula Dad v. Haji Syed Sardar Khan, the Rent Controller rejected the landlord's claim for vacation of the demised property for the purposes of its reconstruction on the ground that it was not yet dilapidated; disagreeing with the view taken by the Rent Controller, Dorab Patel, J. observed :‑---

.I am not able to agree with this view because the word "reason able' is a word of wide import and its meaning cannot be curtailed so arbitrarily, and if the Legislature had intended to restrict the landlord's right in this manner, it would have done so by express provision, the more so as it must be presumed to be aware of similar provisions in the statutes governing the rights and powers of local bodies. . . . . . . . . .

.. . . . . . . . . . .

In this view of the matter, it seems to me that any reconstruction which would enable the landlord substantially to develop or improve his property would be reasonable within the meaning of clause (vi) and I may further observe here that the provision in clause (vi) that a land‑lord cannot rebuild his property unless he requires it reasonably and in good faith is not a novel provision in rent laws..."

In Messrs Amir Din Allah Ditta's case, it has been maintained that the penal provisions of section 13 (5) of the Ordinance afford an adequate safe guard against a landlord acting in bad faith. In this connection, a reference to Haji Allah Ditta v. Mst. Shahzadi Bilqis and another (1980 S C M R 41) will provide :‑‑

"It is not necessary that a building must be so old and dilapidated that it is about to fall down before the landlord can be considered justified in wanting to demolish and reconstruct it. Every person has the right to improve his property; utilize the land on which the building is cons tructed in the best and most profitable manner and erect a new building if the old building is outdated although it might yet be habitable or sufficiently strong to last for another few years. The mere fact that the landlord is willing to demolish the old building and invest a large amount of money in constructing a new one, notwithstanding the tremendous increase in the cost of construction, and the fact that he is willing to undergo imprisonment on his failure to demolish the building or to reconstruct it within a specified period is sufficient to establish his bona fides."

This case lawfully supports the submissions made by the appellant's learned counsel.

7. I have also examined the precedents cited by the respondents learned counsel. In Abdullah Baloch's case the Supreme Court has taken the view that requirement of reconstruction merely for the sake of the reconstruction is not a valid requirement to justify ejectment of a tenant. This ruling was followed in Syed Shin Gul v.( P L D 1968 Quetta 45) Haji Abdul Majid and it was maintained that it is the burden of a landlord to prove that he requires the premises reasonably and in good faith for reconstruction. In the instant case, however, I feel that the appellant has succeeded in establishing that he needs the property in dispute reasonably and in good faith for its reconstruction. The case was examined by the learned Rent Controller in true perspective and the learned First Appellate Court was wrong to intervene. It may be observed that the submissions made by the appellant's learned counsel that previously the eject ment petitions were filed only against the respondents in S. A. O. 287/72 and that, too, on the ground of the default and subletting were not controverted by the respondents' learned counsel. Indeed, the copy of the High Court's judgment, dated 14‑7‑1967, Exh. R. 1 (S. A. O. 287/72) fully supports the submissions of the appellant's learned counsel. The fact that the appellant previously failed to procure the ejectment of one of his tenants, namely, Mahboob Hussain, has no bearing on the subsequent ejectment petitions, filed by him against all his tenants on the basis of bona fide requirement for re construction. Rather, the initiation of ejectment proceedings against all the tenants strengthens the appellant's case that he needs the entire building for demolition and reconstruction. The inference drawn by the learned Addi tional District Judge against the appellant from the institution of previous two ejectment petitions is ill founded. The respondents have failed to establish their contentions.

8. As a result of this discussion, these three appeals are accepted, the orders of the Appellate Authority set aside and that of the Rent Controller restored.

9. The respondents shall hand over the vacant possession of the property in dispute to the appellant within three months. The parties are left to beat their own costs.

10. Before parting with the case I may observe that in S. A. O. No. 286/72, a dispute had also arisen as to which of the two respondents, who are real brothers, is the tenant under the appellant. This controversy shall be resolved by the learned Rent Controller, if and when proceedings under section 13 (5‑B) of the Ordinance are initiated before him.

M.Y.H. Appeals allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.