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First Rent Appeal Nos. 421, 765 and 547 of 1984, decided on 3rd August, 1987.

S. 13(2)(vi)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.15(2)(vi)‑‑Sind Building Control Ordinance (V of 1979), S.6‑ Landlord seeking eviction of tenants on ground of reconstruction of building‑ ‑Approved plans for reconstruction filed alongwith application for ejectment‑‑ Validity of approved plan made subject to reconstruction within a year‑ ‑Reconstruction could not be undertaken within stipulated time because of tenants' refusal to vacate necessitating filing of ejectment cases‑ ‑Contention that plan for reconstruction had not been renewed and as such ejectment was not justified‑ ‑Held: Renewal of approved plan for reconstruction was only a formality and it was not reasonable for landlord to get sanction renewed every year during pendency of ejectment proceedings.

Rashid Brothers, Faisalabad v. Chaudhri Muhammad Anwar Khan and another 1981 S C M R 782 ref.

‑‑‑ S. 13(2)(vi)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.15(2)(vi)‑‑Landlord filing ejectment application in respect of shops on ground of reconstruction of building‑‑Approved plan filed with application not making provision for commercial purposes‑‑Contention by tenants that on vacating shops they would not get commercial premises on reconstruction of building as provided under S.13(5‑B) of Ordinance VI of 1959 and as such their ejectment was not justified‑ Held, provisions of S.13(5) of Ordinance (VI of 1959) attracted only where reconstructed building was of same type and suitable for same purpose; provision of S. 13(5) did not prevent landlord from conversion by reconstruction of one type of building to another.

Abdul Bari v. Khadim Hussain P L D 1978 S C 78; Ghulam Nabi v. Mushtaq Ahmed P L D 1980 S C 206; Abdul Hadi @ Abdul Hadi Hassan and 2 others v. Syed Ali Hyder & others P L D 1983 S C 342 and Abdul Ghaffar Abdul Rahman v. Asghar Ali and others 1984 C L C 2863 ref.

‑‑‑ S. 13(2)(vi)‑‑Sind Rented Premises Ordinance (XVII of 1979), S. 15 (2) (vi)‑‑ Karachi Building Control Regulations, 1984‑‑Ejectment on ground of reconstruction‑‑Con ten action that plan for reconstruction of building could not be approved unless there was an agreement between landlord/owner and tenants for alternate accommodation or for mutually agreed compensation as required under Karachi Building Control Regulations, 1984‑‑Held: Karachi Building Control Authority had no authority to impose any such restriction on rights of landlords in the matter of eviction of tenants.

Hashwant Sales and Services Ltd. v. Karachi Building Control Authority P L D 1986 Kar. 393; Hajiani Sher Bano and others v. Mst. Khatija Bai 1986 S C M R 327 and Syed Ali Akbar Rizvi and others v. Messrs Pak Army Furnishing Stores 1986 S C M R 1658 ref .

‑‑‑S. 13(2)(vi)‑‑Sind Rented Premises Ordinance (XVII of 1979), S. 15 (2) (vi) ‑‑Eviction of tenants on ground of reconstruction‑ ‑Bona fides of landlord in seeking‑‑Plea of reconstruction of property has to be examined by reference to conditions of property; its economic utility; economic resources of landlord and steps taken in order to advance plans for reconstruction‑‑Where evidence on record was sufficient in the above matters, bona fides of landlord for eviction, held, was proved.

Abdul Ghaffar Abdul Rahman v. Asghar Ali and others 1984 CLC 2863; Messrs Service Industries Lahore and another v. Munawar Sultana and 2 others 1984 C L C 3011; Nisar Ahmed v. Ahmed Hassan 1984 C L C 3140; M.S. Khan v. S.M. Sirajuddin 1985 C L C 562; Khalilur Rahman v. The Controller of Post Offices, General Post Offices, Karachi and another 1987 C L C 333; Shaukat Ali and others v. Syed Israr Ahmed 1987 C L C 574; Mohammad Haroon v. Ghulam Mustafa 1978 S C M R 151; Haji Allah Ditta v. Mst. Shahzadi Bilquis and another 1980 SCMR 41 and Muhammad Akbar and another v. Dr. Muhammad Rafiq 1980 S C M R 483 ref.

1978 S C M R 151; 1980 S C M R 483; 1981 S C M R 1087; PLD 1982 S C 110; P L D 1978 S C 78; P L D 1980 S C 206; P L D 1983 S C 342; P L D 1980 S C 206; P L D 1983 S C 342 and 1984 C L C 2863 rel.

N.A. Farooqui for Petitioner.

Badarudduja for Respondents.

Dates of hearing: 12th and 29th April, 1987.

All the three appeals have been filed under the provisions of section 21 of the Sind Rented Premises Ordinance, 1979 hereinafter referred to as the Ordinance). They have almost identical features and they have been heard together and are disposed of by this one Judgment.

The respondents in all the three appeals are joint owners of a building situated on Plot No. W.O. 7/34, Wedhumal Odharam Quarter, Karachi and the appellants therein are defendants in different shops in the building. The appellants in F.R.A. No. 421/84 are tenants in Shop No. 4; while the appellants in F.R.A. No. 765/84 are tenants in Shop No. 5.; and the appellants in F.R.A. No.547/85 are tenants in Shop No. 3. The respondents filed Rent Case No.2467 of 1976 under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed) against the appellant in F.R.A. No. 421 of 1984 on 28‑5‑1976 for their ejectment from the rented shop No.4 on the grounds of default in payment of rent and reconstruction of the building. Likewise, Rent Case No. 2466/76 was filed against the appellants in F.R.A. No. 765/84 dated 28‑5‑1976 in respect of shop No.5 on the same grounds; and so also Rent Case No. 217/80 was filed against the appellants in F.R.A. No. 541/85 in respect of Shop No. 3 on the same grounds. The Rent Case No. 267/76 was decided by the learned X11th Senior Civil Judge/Rent Controller, Karachi and ejectment order was passed on 3‑3‑1984 on the ground of reconstruction of the building. F. R. A. No. 421/ 84 is directed against that order. Rent Case No.2466/76 was decided by learned VIIth Senior Civil Judge/Rent Controller, Karachi by order dated 31‑7‑1984, whereby ejectment was ordered on the ground of reconstruction of the building. F.R.A. No. 765184 is directed against that order. Rent Case No. 217/80 was decided by learned VIIIth Senior Civil Judge/Rent Controller, Karachi (South) by order dated 8‑9‑1985, whereby ejectment was ordered on the ground of reconstruction of new building. F.R.A. No. 547/85 calls in question that order.

The learned counsel for the appellants has contended that the respondents were granted land for residential purpose but the construction made thereon was for commercial/ residential purpose and the plan for reconstruction of the building produced by the respondents is for construction a residential building but it is of such a nature that the reconstruction would be made for commercial‑cum‑residential building and the ground of reconstruction of the building put forth by them is not bona fide. He has next contended that the approved plan for reconstruction of the building produced by the respondents was valid if the work were to start within one year but that was not done and therefore the validity of the plan for reconstruction of building had expired. He has also contended that by virtue of the Sind Building Control Ordinance, 1979 (Ordinance V of 1979) promulgated on 3‑3‑1979, the plans for construction of building required revalidation but no such revalidation of the plan was sought. He has also advanced the argument that a new development had taken place during the pendency of the proceedings as a Karachi Building Control Regulation, 1984 was issued, whereby approval to the plan for construction of rented building was subject to an agreement between the landlord and the tenant that the tenant would be provided accommodation in the newly‑constructed building, or compensation in lieu thereof as agreed to. He has made reference to some reported cases which would be referred to hereinafter.

The learned counsel for the respondents has urged that rent cases were filed during the validity of the plan approved for reconstruction of the building and no revalidation was required during he pendency of the proceedings. He has relied upon a case Rashid Brothers, Faisalabad v. Chaudhri Mohammad Anwar Khan and another, reported in 1981 S C M R 782. He has submitted that the approved plan filed in Rent Case No.217/80 was revalidated on 24‑7‑1981. He has advanced the arguments that the Regulation by the Karachi Development Authority that no plan would be approved unless there was agreement between the landlord and the tenant regarding rehabilitation of the tenament in the reconstructed building was declared ultra vires of the powers of the authority in a case Hashwanti Sales and Services Limited v. Karachi Building Control Authority P L D 1986 Kar. 393. According to him, the Regulation did not have retrospective effect and he has relied upon a case Hajiani Sher Bano and others v. Mst. Khatija Bai 1986 S C M R 327; and another case Syed Ali Akber Rizvi and others v. M/s. Pak Army Furnishing Stores, reported in 1986 S C M R 1658. As regards alleged mala fides behind the ejectment cases, the learned counsel has defined the allegations and cited several cases viz. 1978 S C M R 151; 1980 S.C.M.R. 483; 1981 S.C.M.R. 1087 and P.L.D.1982 SC 110. He has also cited three cases reported in P.L.D. 1978 SC 78; P.L.D. 1980 SC 206 and P.L.D. 1983 SC 342 as regards privilege of the landlord in respect of conversion of rented premises. He has contended that the cases reported in P.L.D. 1978 SC 78; P.L.D. 1980 SC 206 and P.L.D. 1983 SC 342 were not referred to in the case reported in 1984 C.L.C. 2863 relied upon by the learned counsel for the appellant.

The main question agitated in the appeals is that of revalidation of the plans approved for reconstruction of the building forming basis for seeking ejectment of the tenants. The Rent Case No. 2467/76, the F.R.A. No. 421184 has arisen from, was filed on 28‑5‑1976. A photostat copy of a letter of approval dated 10‑3‑1976 to the plan for construction on Plot No. 34, W.4, Odharam, Wadhumal Road by the respondents was filed alongwith the ejectment, application. This case was decided on 3‑3‑1984. The Rent Case No. 2466/76 (F.R.A. 765/84), also was filed on 28‑5‑1976 and a photostat copy of the same letter of approval dated 10‑3‑1976 was filed alongwith the ejectment application. This case was decided on 31‑7‑1984. The Rent Case No. 217/80 was filed in the year 1980 (F.R.A. No. 547/85). It appears from the record that the original record of the rent case was burnt and fresh record was reconstituted. It was mentioned in paragraph‑5 of the ejectment application, that the plan of the building to reconstructed has been got approved. A photostat copy of the renewal order made on 27‑4‑1981 approved by the Karachi Building Control Authority was filed in evidence. The Rent Cases No. 2466/76 and 2467/76 were filed under the provisions of the then existing law, namely‑‑The West ,akistan (Sind) Urban Rent Restriction Ordinance, 1959 (since repealed); whereas the Rent Case No. 217/80 was filed under section 15 of the Ordinance (The Sind Rented Premises Ordinance, 1979). The eviction of a tenant on the ground of reconstruction or erection of the building provided under the West Pakistan (Sind) . Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the repealed Ordinance) was contained in clause 6 of subsection (2) of section 13 thereof. Clause (vi) reads as under:

"The building or rented land is reasonably and in good faith required by the landlord for reconstruction or erection of a building of a site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town, Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building is situate."

Under the Ordinance (The Sind Rented Premises Ordinance) provisions for seeking eviction of the tenant on the ground of reconstruction is contained in clause (vi) of section 15. It reads as under:

"The premises is required by the landlord for reconstruction or erection of a new building at the site and the landlord has obtained necessary sanction for such reconstruction or erection from the authority competent under law for the time being in force to give such sanction."

It is not disputed that the Rent Cases Nos. 2466 and 2467 of 1976 were filed during the period of validity of the approved plan for reconstruction. The Rent Case No. 217/80 also seems to have been filed on the basis of the same approved plan which was validated by the competent authority namely‑‑The Karachi Building Control Authority on 27‑4‑1981. Of course, the validity of the approved plan was subject to the commencement of the reconstruction within a year. But the reconstruction could not be undertaken as the appellants declined to vacate the premises in their occupation and the respondents had to file ejectment cases which took years to find decisions. It was held by the Supreme Court in the case Rasheed Brothers Faisalabad v. Chaudhry Mohammad Anwar Khan and another 1981 S C M R 782,1 that renewal of the approved plan for reconstruction/ erection is only a formality and it is not reasonable for the landlords to get sanction every year during the pendency of the proceedings which were going on for many years. However, the learned counsel for the appellant has urged that this authority could save the approved plan filed by the respondents only upto 3‑3‑1979 when the Sind Building Controll Ordinance, 1979 was promulgated as it provides under section 6 thereof that all the plans approved earlier required revalidation. The question of revalidation under the new law also could arise when the rent cases were finally decided in favour of the respondents and principle laid down by Supreme Court in the aforesaid case is a with all force. Even otherwise, the approved plan was revalidated B 27‑4‑1981 and a copy of the order of revalidation was actually filed in the Rent Case No. 217180. This ground therefore does not hold field.

The other ground advanced by the learned counsel for the appellants is that the grant of the plot to the respondents was for reconstructing a residential building but a residential‑cum‑commercial building was constructed and same device has been adopted by getting the plan approved for a residential building but it would ultimately be converted into commercial‑cum‑residential building. He has agitated that the proposed plan does not make provisions for commercial premises and the appellants would not get any commercial premises on reconstruction of the building. He has placed reliance on the case Abdul Ghaffar Abdur Rahman v. Asghar Ali and others 1984 C L C 2863, wherein it was held by a learned Judge of this Court that where the rented building was used for commercial purpose and the plan for the reconstruction of the building was for residential purpose, the tenant could not get benefit of section 13 (5‑B) of the West Pakistan Urban Rent Restriction Ordinance for rehabilitation in the reconstructed premises and therefore, ejectment case was liable to be dismissed, He has also placed reliance on another case Shaukat Ali and others v. Syed Israr Ahmed 1987 C L C 644 were another learned Judge of this Court observed that provision had to be made in the plan for reconstruction of the buildings for rehabilitation of the tenants in the newly‑constructed premises and the case was remanded in appeal for considering that aspect of the case. The learned counsel for the respondents has resisted that objection relying on several cases of the Supreme Court and contended that none of those cases was referred to in the aforesaid case Abdul Ghaffar Abdur Rahman v. Asghar Ali and 3 others 1984 C L C 2863. The cases relied upon by him are: Abdul Bari v. Khadim Hussain P L D 1978 SC 78; Ghulam Nabi v. Mushtaq Ahmed P L D 1980 SC 206; and Abdul Hadi alias Abdul Hadi Hassan and 2 others v. Syed Ali Hyder and others P L D 1983 SC 342. It was held in the first case viz. Abdul Bari v. Khadim Hussain that provisions of subsection (5‑13) of section 13 of the West Pakistan Urban Rent Restriction Ordinance extended only to the case of the reconstructed building being of same type and suitable for same purpose as was the old building but they did not prevent conversion by reconstruction of one type of building to another. In the second case Ghulam Nabi v. Mushtaq Ahmed, the plea that the landlord had to reconstruct the property as to ensure rehabilitation of the te,,nant on the reconstructed building to his requirement was repelled. This question was again examined by the Supreme Court in the case viz. Abdul Hadi alias Abdul Hadi Hassan and 2 others v. Syed Hyder Ali and others and it was held that subsection (5‑B) of section 13 of the West Pakistan Urban Rent Restriction Ordinance came into play only where the whole building retains the same character on reconstruction but it would not apply where non‑residential building is converted on reconstruction into all residential building and vice versa. The first two cases were referred to in this case. Incidently, all these three cases do not find reference in the case Abdul Ghaffar Abdur Rahman v. Asghar Ali and others 1984 C L C 2863 and I am bound to follow the decision of the Supreme Court and do respectfully follow them and hold that the ground agitated by the learned counsel falls flat.

The third ground put forth by the learned counsel for the appellants is that respondents could not get plan for reconstruction of the building approved unless there was an agreement between the landlord/owner and the tenants for alternate accommodation or for mutually agreed compensation as required under the Karachi Building Control Regulation, 1984. This novel type of regulation was held to be ultravires by a Division Bench of this Court in the case Hashwani Sales and Services Limited v. Karachi Building Control Authority and others P L D 1986 Kar. 396 referred to by the learned counsel for the respondents. The learned counsel for the respondents has also made reference to a case Syed Ali Akbar Rizvi and others v. M/s. Pak Army Furnishing Stores 1986 S C M R 1658, wherein it was held that Karachi Building Control Authority was not empowered to impose any restriction on rights of landlords in matter of eviction of tenants. The very regulation came up for consideration before the Supreme Court in a case Hajiani Sher Bano and others v. Mst. Khatija Bai 1986 S C M R 327, and it was held that it did not have retrospective operation. Accordingly, this ground does not find way to advance the case of the appellants.

The last ground agitated by the learned counsel for the appellants is that the respondents' plea for reconstruction of the building was not bona fide and it was put forth only in order to evict the appellants. He has relied upon the cases M/s Service Industries Lahore and another v. Munawar Sultana and 2 others 1984 C 1, C 3011; Nishar Ahmed v. Ahmed Hassan 1984 C L C 3140; M.S. Khan v. S.M. Sirajuddin 1985 C L C 562; Khalilur Rahman v. The Controller of Post Offices/General Post Offices Karachi and another 1987 C L C 333 and Shaukat Ali and others v. Syed Israr Ahmed 1987 C L C 574. In all these cases, it was held that the landlord has to prove his bona fides in seeking eviction of the tenants on the ground of reconstruction of the building. As against this, the learned counsel for the respondents has relied upon several authorities on the bona fides of the landlord in seeking ejectment of the tenant on the same proposition of law. They are Mohammad Haroon v. Ghulam Mustafa 1978 S C M R 151; Haji Allah Ditta v. Mst. Shahzadi Bilquis and another 1980 S C M R 41; Mohammad Akber and another v. Dr. Mohammad Rafiq 1980 S C M R 483 and Abdur Rasheed etc. v. Ghulam Dastagir 1981 S C M R 1087. In all the authorities relied upon by the learned counsel for the parties the question of bona fides in seeking eviction of the tenant on the ground of reconstruction stands magnified. In the last case Abdur Rasheed etc. v. Ghulam Dastagir 1981 S C M R 1087, it was held that the plea of reconstruction of a property has to be examined by reference to the condition of the property, its economic utility, the resources of the landlord and the steps which he had taken in order to advance his plans for reconstructing the property. In the instant case, it has been brought on the record that the existing building has outlived its utility as its on upper structure had been demolished as being in dangerous condition, the respondents had filed Bank certificate of their financial soundness to undertake reconstruction of the building and had got the plans approved. This was sufficient evidence to indicate the bona fides of the respondents for undertaking reconstruction of the building. This case has overriding effect on the other cases relied upon by the learned counsel. Therefore, this ground also does not succeed.

For the reasons recorded above, all the three appeals are dismissed and the orders of the learned Controllers impugned there under are maintained. Since ejectment of the appellants was sought on the ground of reconstruction of the building on the basis of plan duly approved for reconstruction and the validity of the approved plan for the reconstruction had expired during the pendency of the rent cases and, in the meantime, the Sind Building Control Ordinance, 1979 was promulgated, where under the already approved plans need revalidation, the appellants shall vacate the rented premises within three months of the respondent's filing before the Controller duly revalidated or fresh plans duly sanctioned, and failing that the appellants shall be ejected from the premises in accordance with law. The respondents are awarded costs in the rent cases as well as in the appeals.

K.B.A. /K‑41/K Appeals dismissed

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