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Civil Appeal No. 37‑K of 1984, decided on 28th October, 1985.

(On appeal from the judgment and order of the High Court of Sind, Sukkur, dated 4‑10‑1983, in R.F.A. 144 of 1982).

‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), Ss.12 & 15 (2)(vi)‑‑Ejectment‑‑Need for reconstruction‑‑Leave to appeal granted to examine whether work of reconstruction of demised premises amounts to "reconstruction or erection of a new building at site" as contemplated by S. 15(2)(vi), so as to deprive tenant of his tenancy rights.

‑‑‑Ss. 12 & 15(2)(vi)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 (2)(vi)‑‑Ejectment‑‑Need for re‑construction‑‑Bona fide of‑‑"Repair" and "Re‑construction" distinguished‑‑Landlord having obtained sanction for re‑construction‑‑Plea that landlord required premises for repairs and it was not necessary for him to obtain possession of whole building, repelled‑‑Word "reconstruction" did not imply a complete demolishing of existing building and construction of new building in its place‑‑Where change of substantial character in existing building was being effected, case would fall within purview of word "re construction" and where structural changes were to be made in order to complete proposed work, such work could not be termed or characterized as mere repairs‑‑Claim of landlord requiring premises for reconstruction having been established, appeal dismissed with costs.‑ [Words and phrases].

Ghulam Muhammad v. Maqsood Hussain 1984 S C M R 1142 distinguished.

Black's Law Dictionary Fifth Edition (1979) quoted.

Mst. Akhtar Sultana v. Dr. Abdul Rauf Nagi P L D 1978 Lah. 347 and Abdul Qayum v. Khursheed Jehan 1984 S C M R 710 ref.

Khalid M. Ishaque, Advocate S0preme Court with Nizam Ahmad, Advocate‑on‑Record for Appellant.

S.A. Wadood, Advocate Supreme Court with M. Shabbir Ghaury, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 15th August, 1985.

This appeal by special leave arises out of judgment, dated 14th October, 1983, whereby a learned Single Judge of the High Court of Sind, bench at Sukkur, dismissed the appeal filed by the appellant under section 21 of the Sind Rented Premises Ordinance, 1979.

2. The facts are that the appellant is a company registered under the Companies Act, 1930, dealing in the manufacture and sale of shoes and respondent No. 2 was the Manager in charge of the management of their shop at Sarafa Bazar, Jacobabad. This shop premises was demised in favour of the appellant by its former owner Khurshid Ali at the rental of Rs.170 per month. In May, 1980, the appellant was served with 'a notice under section 18 of the Sind Rented Premises Ordinance (hereinafter to be referred to as the Ordinance), intimating the fact that the premises had been purchased by respondent No. 1. It appears that the condition of the building comprising premises in dispute had deteriorated and the Municipal Committee served a notice on respondent No. 2 to vacate the premises. The‑appellant, however, paid no heed to the notice of the Municipal Committee. On 26th June, 1981, respondent No. 1 filed an application under section 15 of the Ordinance seeking the eviction of the appellant on two grounds, namely, non‑payment of rent for the period from 14th February, 1980, upto the date of the application and that the premises were required for reconstruction. The appellant resisted the plea of respondent No. 1 on both grounds and contended that their eviction was being sought mala fide as respondent No. 1 wanted to increase the rent from Rs.170 to Rs.2,000 per month. As regards the non‑payment the plea taken by the appellant was that the rent was duly tendered but respondent No. 1 refused to accept the same and, therefore, the rent was being deposited regularly in the Court of the Rent Controller. The ground of default in the payment of rent having been given up, the learned Rent Controller, on the pleading of the parties framed the following issues:‑

‑Whether the applicant does not require the disputed shop for reconstruction

What should the order be

Whether this application is maintainable in law "

After recording the evidence of the parties, on the issue No. 1, the learned Rent Controller came to the conclusion that although respondent No. 1 had proved by his evidence that he had obtained the necessary sanction for reconstruction of the demised building for the Municipal Committee in accordance with the sanctioned plan, the evidence did not show that he needed to demolish the building. According to the learned Rent Controller the respondent No. 1 only wanted to carry out repairs to one of the walls of the building with the intention to bifurcate the shop into two portions with an additional staircase leading to the first floor. Upon these findings the learned Rent Controller came to take the view that respondent No. 1 had failed to prove that he required the premises for the purpose of reconstruction within the meaning of section 15(2)(vi) of the Ordinance. As a result of these findings the learned Rent Controller dismissed the application for eviction by his order, dated 14th September, 1982.

3. On appeal a learned Single Judge of the High Court by the impugned judgment, however, reversed the findings of the Rent Controller and reached the contrary conclusion that respondent No. 1 had proved by his evidence that he required the premises for reconstruction and allowed the appeal, with the result that the appellant was directed to hand over the vacant possession of the premises to respondent No. 1.

4. Leave was granted by this Court in order to examine the question whether the work of reconstruction of the demised premises amounts to "reconstruction or erection of a new building at the site" as contemplated by section 15(2)(vi) of the Sind Rented Premises Ordinance, 1979, so as to deprive the appellant of his tenancy rights.

5. The case of the respondent in the eviction application is contained in the following paragraphs:‑

"(5) That during the period of ownership of the previous owner Khursheed Ali, the position of the western wall of the shop had become unsafe, therefore, the Municipal Administration had given such notice, dated 15‑11‑1979, whereby they had called upon the opponents/owners for reconstruction of the western wall but no action was taken due to recalcitrant behaviour of the opponents, therefore, the condition of western wall has become still more serious.

(6) That the applicant, therefore, wants to demolish the Western Wall and reconstruct it. The applicant also intends to bring material alterations in the rented premises. The applicant shall construct a supporting wall in the middle of the shop thereby bifurcating the shop in two portions one behind the other and this supporting wall shall strengthen the western and eastern wall also. The applicant shall also construct a 6 feet winding/circular staircase at the backside of the shop for access way the first floor, the property is damaged due to rain, dust and closed being unattended to, for proper maintenance of the property."

The building in dispute consists of a ground floor and first floor. The appellant is in occupation of the ground floor which consists of a shop, and on the first floor there is one room, for which according to respondent No. 1 there is no means of approach. This fact is admitted in the evidence of appellant's witness Abdul Rauf Shahzad, who is the Manager of the shop, in which it is stated that there is no way leading towards the room on the first floor from inside the shop, although at one time there used to be a staircase leading to the first floor through the adjoining shop owned by one Yar Muhammad which is lying closed since 1979. The nature of reconstruction as sanctioned by the Municipal Committee is revealed by the site plan Exh. 25. This document confirms and supports the case of respondent No. 1 that he had been permitted by the Municipal Committee to make alterations and reconstruct the building, with the result that the existing single shop on the ground floor will be divided by the newly constructed wall and thereby the front portion of the shop will comprise a smaller room with an additional room at the back in which a spiral type of staircase will be constructed. The specifications of the proposed construction have been duly mentioned in this document.

6. The High Court repelled the argument of the present appellant that the proposed construction sanctioned by the Municipal Committee constitute merely repairs and not "reconstruction" within the contemplation of the relevant provision of law on the following reasoning:‑

"It is clear from the above para. that the appellant has taken the plea of reconstruction in an unambiguous language. The learned counsel for the respondent has, however, pointed out to the para. No. 6 of the application which according to him clearly shows that he required the building for repairs only. In para. 6 of his ejectment application, the appellant has no doubt mentioned the details of the additions and alterations intended to be carried out in the building. It may however, be observed that this para. cannot be torn from the remaining text of the ejectment application and read in isolation. In order to appreciate the appellant's case and the pleas taken by him, the ejectment application is to be read as a whole. As has been stated above, the appellant has taken a definite plea in para. 7 of his application that he needed the building for reconstruction. Thus, the argument of the learned counsel for the respondents that appellant intended to carry out only some repairs is not tenable."

7. In support of this appeal it has been vehemently urged by Mr. Khalid Ishaque that respondent No. 1 has failed to prove that he needs the premises for reconstruction and that the plea of the landlord is not bona fide. He has further urged that the sanctioned plan Exh. 25 on which reliance has been placed by the landlord only authorized reconstruction of the western wall and there is no sanction for construction of the wall in the centre of the shop. In the circumstances, learned counsel strongly urged that this is not a case of reconstruction of the building within the meaning of section 15(2)(vi) of the Ordinance. On the other hand Mr. S.A. Wadood appearing on behalf of the landlord has supported the impugned judgment of the High Court, arguing that the requisite sanction having been obtained from the Municipal Committee authorizing modification of the existing construction, the landlord was entitled to evict his appellant. Both parties have placed strong reliance on a recent case of this Court reported as Ghulam Muhammad v. Maqsood Hussain 1984 S C M R 1142.

7‑A. I have carefully gone through that case but in my view it does not furnish any assistance in resolving the controversy in this appeal. The argument in that case proceeded on the basis of amendment of law, whereby the condition that the Rent Controller must be satisfied that the building was "reasonably and in good faith" required by the landlord for reconstruction or erection of a building on the site was removed from the language of the re‑enacted provisions. It was, therefore, urged that it was no longer necessary for the landlord to establish the reasonableness and good faith of his requirement for the purpose and it was sufficient if be proved that the building was required by him for reconstruction or erection of a building on the site and he had obtained the necessary sanction for the same from the Municipal Authorities. However, the Court on re‑examination of the facts of the case found that the conclusion reached by the Rent Controller that the landlord bona fide required the building for demolition and reconstruction was sufficiently established on record. On this basis the appeal was disposed of on the ground that the High Court was not justified to up‑set such findings of fact in its constitutional jurisdiction.

8. The argument of the tenant in the present case, on the other hand, is that the landlord's action for its eviction is mala fide on account of the fact that the proposed work to be carried out in respect of the building is of such a nature that it is not necessary for the landlord to obtain possession of the whole building in order to carry it out. It is in this context that the tenant's learned counsel contents that what is intended to be done constitutes repairs and not "reconstruction" within the meaning of section 15(2)(vi). The word "repair", according to Black's Law Dictionary Fifth Edition (1979), contemplates an existing structure or thing which has become imperfect, and means to supply in the original existing structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be. Thus, it will be seen that the word primarily imports the idea of restoring a building which is damaged or destroyed partially to its original structural shape and condition. Whereas the word "reconstruction" is defined by the sari‑ hook in the following menner:‑

It presupposes the non‑existence of the thing to be reconstructed, as an entity; that the thing before existing has lost its entity."

The Sind Rented Premises Ordinance, 1979, deals with the matter of "repair" in section 12 which obligates the landlord, subject to the agreement between the parties, to keep the premises in tenantable repair which in terms of this section means "repair or white washing as may be necessary to keep the premises in proper shape". The Rent Controller has been empowered to direct that such repair or white washing may be made by the tenant and the cost thereof may be deducted from the rent payable to the landlord. Apparently for the purpose of carrying out t‑he work of repairs, the Ordinance does not contemplate the termination of the tenancy or eviction of the tenant. However, the case of "reconstruction" under section 15(2)(vi) entails the eviction of the tenant. The words "repair" and "reconstruction" are not defined in the Ordinance. But quite obviously that two situations contemplated are distinct in nature and character. From the definition of the two words, the most obvious and primary distinction appears to, be that where structural changes are to be made in order to complete the proposed work, such work cannot be termed or characterized as mere repairs and this distinction is sufficient to dispose of present controversy. It may be pointed out that while stating this it may not be construed that a structural change in the building is an essential condition of the meaning of the word "reconstruction" in the context of the provision under construction. Instances may occur where existing building is so extensively damaged that it may require to be rebuilt on the same pattern and plan as the original building, which may constitute reconstruction. However, it is not necessary to pursue this aspect of the matter any further in the present case. In Mst. Akhtar Sultana v. Dr. Abdul Rauf Nagi P L D 1978 Lah. 347, a fuller discussion on this point can be perused and this case was approved by this Court in Abdul Qayum v. Khursheed Jehan 1984 S C M R 710, in which this Court agreed with the proposition of law that in the context of the statute, the word "reconstruction" does not imply a complete demolishing; of the existing building and the construction of the new building in its; place, but held that where a change of substantial character in the existing building was being effected, the case would fall within the purview of the word.

9. Applying these principles in the facts of the present case, it appears to me that the proposed work that the landlord intends to carry out in the premises does not constitute mere repairs. The assertion of the tenant that the plan sanctioned by the Municipal Committee does not envisage the erection of the central wall dividing the shop premises into two portions is factually incorrect. The sanctioned plan provides for such a wall which will in effect separate the back portion of the shop where an internal staircase will be constructed. These constructions do make out a case of structural change in the building. That it is necessary for the landlord to obtain possession of the premises in order to carry out the proposed work does not appear to be open to any doubt, in that, the nature of the work to be done seems to require the removal of an existing wall, the construction of new dividing wall and a staircase. It is also patently clear and indeed it was not disputed at the bar on behalf of the tenant that the landlord does require this work to be done. Apparently it is necessary for him to have access to the upper storey through his own property by constructing a staircase, otherwise part of the property would remain in disuse. All these considerations strongly support the claim of the landlord that he requires premises for reconstruction.

10. In the result this appeal fails and is accordingly dismissed with costs.

M.I Appeal dismissed

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