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Second Appeal No.8 of 1983, heard on 3rd September, 1984.

---S.100--Second appeal--Proper application of mind by first appellate Court necessary for conclusive concurrent finding--Evidence not having been appraised by first appellate Court--Second appraisal undertaken.- [Evidence].

Bashirullah v. Mst. Sardar Begum P L D 1954 Lah. 614 ref.

---S.13(2)(vi)--Ejectment--Reconstruction of old and uneconomical building for improvement of property--Plan for multi-storeyed building approved--Bona fide requirement in good faith--Held: Approval of plan for reconstruction from relevant authorities with object to improve property sufficient to establish landlords bona fides--Plan need not necessarily be to cater needs of existing tenants--Question of funds/ resources irrelevant for bona fides and good faith of landlord.

1981 C L C 761; Abdul Mannan v. Haji Karam Ellahi P L D 1971 Quetta ; Ghulam Nabi v. .Mushtaq Khan P L D 1980 S C 206; Moula Dad v. Sardar Khan P L D 1972 Quetta 39 and Haji Allah Ditta v. Mst. Shahzadai Bilquis and another 1980 S C M R 41 rel.

M.M. Mahmoodi for Appellants.

Nemo for Respondent.

Date of hearing: 3rd September, 1984.

The appellant filed an application for ejectment of the respondent in respect of tenements Nos.22 and 23 in the building bearing No.W.O.6/12 Water Course Road, Karachi. It was alleged that the building is very old and in dilapidated condition and is uneconomical. The appellants have therefore, decided to construct a multi-storeyed building after demolishing the existing building for which a plan has been approved by the relevant authorities. It was stated that the appellants reasonably and bona fide requires the said property for demolishing the existing construction and constructing a new multi-storeyed building with modern amenities. The respondent opposed the claim and in its written statement pleaded that he is a tenant for the last about 20 years and has installed a huge automatic printing press on the ground floor together with lathe machine. It is occupying 1365 sq. ft. and 1004 sq . f t . with an average height of 22' . It was denied that the premises is in dilapidated condition. It was pleaded that few months ago the respondent has spent Rs.10,000 for repairing the roof, plastering and renovation. It was denied that action of the appellants is' bona fide, reasonable and in good faith. The learned Controller dismissed the application holding that the premises is not in a dilapidated condition, and is not bona fide and in good faith required for construction. The appeal filed by the appellants was also dismissed by the learned 1^st Appellate Court.

I have heard Mr. Mamoodi for the appellant. The respondent and his Advocate have remained absent. At the outset it may be stated that the judgment of the learned 1st Appellate Court does not seem to have properly considered the evidence, issues, and contentions, raised by the parties, and its reading gives the impression that it is merely a summary of the order of the learned Controller which has been endorsed without proper application of mind. It is the duty of the first appellate Court to examine all facts, evidence, documentary and oral, with reference to the issues and the provisions of law. A very heavy duty is cast upon the 1st Appellate Court because if he concurs with the finding of fact of the trial Court, it can be disturbed in Second appeal on very limited ground. Where the 1st Appellate Court endorses the view of the trial Court without properly applying its mind and mechanically concurs with the trial Court such finding is robbed of the sanctity which is attached to a concurent finding. It is no longer conclusive because in law such finding should be the result of independent and proper application of mind by both the Courts below.

In Bashirullah v. Mst. Sardar Begum P L D 1954 Lah. 614 Kayani, J. (as he then was) observed:-

"It is not enough for the Court of appeal to say that 'the defendant has led evidence to show that this sale was effected with the consent of the plaintiff and .in agreement with the learned Sub-Judge I am also of the opinion that the plaintiff did not give her consent'. The evidence that was led ought to have been discussed and an independent mind brought to bear on the issue. Even if the Court of appeal professes to have examined the evidence, but it does not appear from the judgment that it has done so, a mere statement that upon an examination of the evidence it agrees with the conclusions of the trial Judge would not convince the Court of second appeal that the evidence has been so appraised as to make it unnecessary for the Court to undertake a second appraisal. It is only when the Court of second appeal is thus convinced that it will regard the finding of fact by the District Judge as conclusive."

While dealing with the issue whether the building is dilapidated the 1st Appellate Court has cursorily referred to the evidence without properly appraising it. The important issue relating to bona fide and reasonable requirement of the appellants for reconstruction has been dealt with in a summary manner and the evidence has not been appraised. Mr. Mahmoodi has made a grievance that the authorities of the Supreme Court and High Court referred during arguments have not been considered by the learned 1st Appellate Court. In the circumstances, it is clear that the evidence has not been so appraised by the 1st Appellate Court as to make it unnecessary to undertake a second appraisal"

Mr. Mahmoodi the learned counsel for the appellant has contended that both the Courts below have not judicially considered the evidence, and have misapplied the provisions of law. The learned counsel contended that from the evidence on record, the appellants have established bona fide requirement for reconstruction. In this regard the learned counsel has referred to the evidence of the parties. The learned Controller has dealt with the matter at great length and one of the factors which has impressed him for holding that there is lack of bona fides is that the appellants had filed Suit No.1498/68 against the respondent which was compromised but at that time although the appellants had obtained the approved plan for reconstruction, they did not disclose that they wanted to reconstruct the building. It was further observed that under the compromise the respondent undertook to repair the roof and spent Rs.13,000. All these facts according to the learned Controller prove lack of bona fides and good faith. The learned Appellate Court has endorsed the view of the learned Controller. The learned Courts below do not seem to have examined the nature of the suit and relief sought by the appellant. A copy of the plaint was produced during the evidence which is in the paper book of the lower appellate Court. This was a suit for declaration and injunction against the respondent. The main allegation in the plaint was that on 10-7-1968, the respondent demolished the roof of the premises with intention to reconstruct it without the permission of the appellant or sanction of K M C. It was alleged that the action of the respondent in demolishing the roof and reconstructing the same was illegal and unauthorised, and a permanent injunction was sought restraining the respondent from demolishing and reconstructing the suit property. The suit was compromised in the following terms:-

"(1) That the defendants who are presently inconvenienced without a roof, may replace the roof by asbestos sheets on tenement No.23. They may also carry out repair of the roof of tenement No.22 to protect against rain without demolishing any portion thereof. All this shall be at the cost of the defendants.

(2) That all the material including sheets, griders etc. incorporated if the above works shall being to the landlords/ plaintiff and the defendant shall have no interest therein

(3) That the defendants shall keep the landlord/ plaintiff fully indemnified against any action detrimental to their interest taken by the K . M . C . C . D . C . or any other authority in respect of the said works.

(4) That parties shall bear their own costs These proceedings therefore, clearly show that the respondent had either demolished the roof or it was so old and dilapidated that it was necessary to replace it by another roof. The respondent compromised this suit and undertook to replace the roof by asbestos sheet which would have been in his own interest. These terms and conditions are not unusual between the landlord and tenant. Such proceeding and settlement between the parties cannot give the impression that the appellant had come with unclean hand or had not disclosed any material fact which was necessary for such proceedings. The respondent was carrying on business there and if the roof required reconstruction or repairs then the respondent had done it for his own sake. The nature of the suit proceeding clearly show that there was no lack of bona fides on the part of the appellant. The respondent had entered into the settlement with its own free will, and it has spent money to repair the roof. This does riot in any manner militate against the bona fides and good faith of the appellant. Even if the appellants would have disclosed that they wanted to demolish the building, it was unlikely that after the respondent had demolished the roof it would have stayed there without carrying out repairs.

The other fact which has impressed the learned Controller is that Mansoor who was examined on behalf of the appellants did not disclose the particulars of their bank accounts. The learned counsel Contended that a bank certificate in respect of Ibrahim one of the CO-Owners was produced from which it was established that he has sufficient funds to raise the building. The fact that witness was not disclosing the accounts of the other owners cannot lead to the presumption that the appellants have come with unclean hands. If the Controller wanted to ascertain the funds available to the appellants, the same could have been done by looking to the bank certificate produced by the appellants. This certificate produced by the appellants is in respect of Ibrahim who is one of the co-owners and although in evidence it is stated that all the co-owners have decided to pool their resources and invest their money, it was not necessary that solvency certificate from the bank in respect of all the owners should have been produced. If the property is to be constructed jointly by several co-owners and from the evidence it is established that one of the co-owners has sufficient funds for reconstructing the building and is willing to invest it for that purpose then it is irrelevant to ask for the financial resources of all other co-owners. In such circumstances if the bank account or resources of other co-owners are not disclosed it will neither amount to lack of bona fide and good faith nor will it lead to the inference that the owners are not in a position to construct the building. Even one co-owner can invest money on behalf of all the co-owners according to their mutual agreement. The proceedings before the Controller are of limited nature and while cross-examining a witness, it is not proper to fish into private affairs of any party and compel him to disclose such financial matters which are not relevant. The learned counsel has relied on 1981 C L C 761 in which it was held that "the question of availability of funds and resources in the modern time has no bearing of or effect on the bona fide and good faith of the landlord, as it is possible for a landlord to obtain loans for such purpose from various organizations like House Building Corporation, Bank etc. and further more this B condition has not been laid down in section 13 (2) (vi) of the Ordinance." In the present case it is established that one of the co-owners has sufficient funds for reconstruction of the building, and therefore, the contrary view taken by the Courts below is a result of clear lack of judicial consideration of evidence.

Mr. Mahmoodi has contended that the learned Courts below have wrongly held that as the nature of the new building would be such that it will not be able to accommodate the respondent, the appellants could not be allowed to construct it. In this regard the learned counsel has referred to Abdul Mannan v. Haji Karam Elahi P L D 1971 Quetta 1 where it was held that:

"Once it is held that the landlord is entitled to build his property then the tenant cannot question the nature of the reconstruction of the old building on the ground that it would not suit his requirement. This is why the question of re-instatement of the tenant in the new building has been left to the discretion of the Rent Controller."

The learned counsel for the appellant also referred to Ghulam Nabi v. Mushtaq Khan P L D 1980 S C 206 where referring to section 13 (5-B) of West Pakistan Urban .Rent Restriction Ordinance, the following observation was made:-

"This subsection only confers a right on a tenant to a lease of the demise premises after their reconstruction, and as the Controller, is empowered to lease to the tenant in the new building, a smaller area than the premises originally demised to him, this express provision is inconsistent with the proposition that a landlord can reconstruct his property only in accordance with the needs of his tenant. Secondly, the option conferred on the tenant by this subsection continues until the completion of the new building, and its occupation by another person. In view of the laws delays this can only be many years after the landlord's reconstruction plan has been approved by the local Municipality, therefore, the plea that the landlord's rebuilding plan must conform to his tenant's requirements would lead to absurdity, thirdly, whilst a landlord cannot evict his tenant except on the ground prescribed in the said Ordinance, a tenant is free to vacate the demised premises after giving the contractual or statutory notice. As a tenant can terminate his lease unilater ally, it would be extremely unjust and unreasonable if the landlord's right to rebuild and develop his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the Legislature."

From the aforestated authorities it is clear that plan for reconstructing the building should not necessarily be to cater the needs of the existing tenants. Therefore, the findings of the Courts below was against the dictum of Supreme Court and principles of law.

The appellants have stated that the building is old and uneconomical and that they want to reconstruct a multi-storeyed building with more tenements, and further that it will be an improvement in the property. In Ghulam Nabi's case quoted above, it was observed that "where the effect of the reconstruction is substantially to develop and improve the property, the landlord can evict the tenant. A landlord can evict the tenant on the ground of reconstruction of building provided he proves that his requirement is reasonable and bona fide". In Moula Dad v. Sardar Khan P L D 1972 Quetta 39 it was held that any reconstruction which would enable the landlord to develop or improve his property4 would be reasonable within the meaning of clause (vi) of subsection (2) of section 13.In Haji Allah Ditta v. Mst. Shahzadi Bilquis and another 1980 SCMR 41 it was observed that "every person has right to improve his property and utilize the 'and on which the building is constructed in the best and most profitable manner and erect a new building if the old building is outdated although it might yet be habitated or sufficiently strong to last for another few years". If a landlord with the intention to improve his property wants to demolish a building and re-erect a new building which is more economical and more useful in all respects than the old building then depending on the facts and circumstances, such act of reconstruction will be deemed reasonable. Where a landlord proves that he has obtained an approved plan for reconstruction from the relevant authorities, with the object to execute it and improve his property, his bona fide and good faith cannot be doubted. On consideration of the entire evidence and the facts I am convinced that both the orders lack proper judicial consideration of evidence, and the provision of law have been misapplied.

The learned counsel contended that the learned Courts below erred in holding that as the building is not in a dilapidated condition, the appellants do not require it reasonably and bona fide for reconstruc tion of a building. It is not necessary that the building required to be demolished should be dilapidated. Even a strong and habitable building can be demolished for reconstruction provided such reconstruction will improve the property. In Mouladad's case similar contention was repelled in the following words:

"In the present case, the Rent Controller has rejected the appellant's claim on the ground that the property was not yet dilapidated. This view implies that a landlord can rebuild his property only if' it is dangerous. I am not able to agree with this view because the word "reasonable' is a word of wide import and its meaning cannot be curtailed so arbitrarily, and if the Legislature had intended to restrict the landlord 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 statute governing the rights and powers of local bodies. 1, therefore, do not agree with the rent Controller's view."

In Haji Allah Ditta's case 1980 S C M R 41 it was observed that it is not necessary that a building must be so old and dilapidated that it is about to fall down before a landlord can be considered justified in wanting to demolish and reconstruct it. It is not necessary for a landlord to establish that the building sought to be demolished in dilapidated or ruinous, nor absence of such a circumstance will lead to the inference that the landlord's requirement is not reasonable and bona fide provided the landlord by independent evidence proves his bona fides. As observed earlier even habitable and strong old building can be demolished for reconstructing such building which will improve the property. The appeal is therefore, allowed. The respondent shall be entitled to the protection afforded under subsection (5B) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959. The respondent is granted three months time to vacate the premises.

M. I. Appeal allowed.

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