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Civil Petition for Leave to Appeals Nos. 242‑P and 243‑P of 1985, decided on 2nd March, 1986.

(On appeal from judgment of Peshawar High Court, dated 6‑11‑1985 in Writ Petitions Nos. 27 and 126 of 1984).

‑‑‑S. 17‑‑Ejectment‑‑Reconstruction‑‑Finding of Rent Controller that applications for eviction were actuated by mala fide not sustainable on evidence on record‑‑Such finding reversed in appeal and ejectment of tenants granted‑‑Constitution petition by tenants against order of ejectment also failed‑‑Held, no material existed to show that landlords were seeking eviction oulterior motive and without good faith‑‑Having fulfilled other requirement of law, landlords had fully justified their claim that they required building for demolishing and constructing a new building on same site‑‑Order of ejectment passed by Court below maintained.

Abdul Hadi alias Abdul Hadi Hasan and others v. Syed Ali Haider and others P L D 1983 S C 342 rel.

‑‑‑S. 17‑‑Ejectment for reconstruction‑‑Tests of reasonableness and good faith to be read into provisions of S. 17(2)(vi) or applied to cases there nder.

Mian Yunis Shah, Senior Advocate Supreme Court with Mian Shakirullah Jan, Advocate‑on‑Record (absent) for Petitioners.

Maulvi Sirajul Haq, Advocate Supreme Court with M. Qasim Imam, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 2nd March, 1986.

‑The petitioners in these two petitions for leave to appeal are tenants in separate tenaments of the building owned by the respondents who are their common landlords and who have obtained eviction order against them. These petitions are directed against the common judgment of learned Judges of the Peshawar High Court, dated 6th November, 1985, whereby the writ petitions filed by the petitioners against the orders of their eviction were dismissed. The respondents whom we shall refer to as the landlords, had sought the eviction of the petitioners from the respective tenaments in their occupation, under section 17 of the Cantonment Rent Restriction Act, 1963, inter alia, on the ground that they wanted to demolish the premises for raising new construction over the site in accordance with the site plan attached with the petitions. The petitioners resisted the plea of the landlords and alleged mala fide against them. Before the learned Rent Controller the landlords produced documentary evidence showing that they intended to demolish the property for reconstruction of the new building on the same site. The learned Rent Controller came to the conclusion that although the landlords have proved that they intend to demolish the old building and raise a new construction on the same site, but as there was no notice issued by the Cantonment Board indicating that a new construction was to be raised or any improvements in the premises were required, the plea of the landlords was wanting in good faith, particularly because in the past they had enhanced the rent from time to time. On this finding the learned Rent Controller rejected the applications of the landlords.

2. On appeal by the landlords against the decision of the Rent Controller, the learned District Judge, however, disagreed with the view taken by the Rent Controller and reversed the findings recorded by him. He held that the fact that the tenants were old tenants is not a relevant consideration, that no notice by the Cantonment Board was required to be issued to the tenants under the law in case of construction of a building, and that the enhancement of the rent in the past was not a ground for refusing eviction for the purpose of reconstruction. Finally he held that the landlords not required to prove good faith once they had supported their plea for reconstruction with a proper sanction for such construction from the Cantonment Board. In consequence the learned District Judge ordered the ejectment of the petitioners from the premises in their possession.

3. Being dissatisfied with the result of the appeals, the petitioners invoked the constitutional jurisdiction of the High Court to call in question the eviction orders passed by the learned District Judge against them in the appeals. A Division Bench of the High Court, however, dismissed the constitutional petitions filed by the petitioners by common judgment, dated 6th November, 1985.

4. In support of the present petitions it is contended by the learned counsel that although the relevant clause of section 17 of the Cantonment Rent Restriction Act, does not expressly provide for good faith and reasonableness as necessary requirements for obtaining possession on the ground of reconstruction of a building, they are necessarily to be implied in the language of the statute. The argument was that a landlord cannot for the mere asking be entitled to obtain possession from the tenants on the ground that he wishes to demolish the building and construct a new one on the same site, but that he must further prove that he requires to do so reasonably and in good faith. On the plain reading of the provisions of section 17(2)(vi) of the Cantonment Rent Restriction Act, we find no warrant for this argument and on a first impression we are not satisfied that the tests of reasonableness and good faith to be read into the said provision or applied to cases thereunder. Be that as it may we are not inclined to go into this question of law, for we agree with the view taken by the learned Judges of the High Court, that the findings of the learned Rent Controller that the applications for eviction were actuated by mala fide) was not sustainable on the evidence on record. In this connection the learned Judges observed:

"In support of their plea the landlords have placed on the file the site plan of the proposed construction over the site in dispute and has produced the required sanction of the competent authority as required under section 17(2)(vi) of the Act for discharging the burden of proof placed on them. The learned Rent Controller, however, based his finding on the two issues in utter disregard of the legal evidence but was influenced by the assertion of the tenants that they were holding the property for more than 40 years and that they were not served with a notice by the Cantonment, Board undertaking the intended construction. He was also influenced by the fact that during this period from time to time enhancement was made in the rent by the landlords. It further prevailed with the learned Rent Controller that the landlords plea of reconstruction was not linked with the plea of their personal requirement. The above contentions were made the basis for reaching the conclusion that the landlords' plea for demolition and reconstruction was a pretext for ejecting the tenants. Unfortunately the learned Rent Controller had fallen into an error by taking into consideration extraneous and irre,4vant matters while giving his decision on the issues framed.

Therefore, in our view on facts there was no material to hold that the landlords were seeking eviction of the petitioners for ulterior reasons and without good faith. It necessarily follows that having fulfilled the other requirements of law, the landlords had fully justified their claim that they required the building for demolishing and constructing a new building on the same site. It has been held by this Court even in connection with similar provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, which contain an express provision for good faith and reasonableness, that where the landlords seek reconstruction of a building for the purpose of substantially developing or improving the property, the requirement cannot but be held bona fide and reasonable, see Abdul Hadi alias Abdul Hadi Hasan and others v. Syed Ali Haider, and others P L D 1983 S C 342.

5. For the foregoing reasons we find no merit in these petitions and accordingly dismissed the same.

M . Y . H . Petitions dismissed.

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