Sh. MAULA BAKHSH AND Another vs FAZAL DIN AND ANOTHER

1. MUHAMMAD APZAL ZULLAH, J.-These two appeals by leave are directed against the judgment dated 11-2-1967 of the Lahore High Court ; whereby two second appeals filed by the landlords (appellants) arising out of the dismissal of their applications for eviction of their tenants (respondents) on the ground of reconstruction, were dismissed ; on the finding that the pro--perty in question need not be demolished for purposes of reconstruction as the intended first floor (chaubara) could be constructed on the existing founda--tions, walls and roof of the ground floor.

2. This finding of fact purported to have been based on the statement of Syed lrshad Husain one of the appel--lants' witnesses who under cross-examination had admitted that the first floor could stand on the existing foundations of the ground floor.

3. Leave was granted to examine the question as to whether the statement made by Irshad Husain was not misread in that he had admittedly not seen the building in question.

4. Relying on Haji Allah Ditta v. Mst. Shahzadi Bilqis and another1980 SCMR 4the learned counsel for the appellants has contended that the appellants being the owners, had the right to improve their property and to utilise it in the best and most profitable manner by erecting a new building if the old one is out--dated and for that matter it need not be dilapidated and weak in structure. He has also pressed the point regarding misreading of the statement of Irshad Husain.

5. The learned counsel for the respondent, however, while agreeing that it would be difficult for him to controvert the propositions canvassed from the appellants' side, the respondents could nevertheless support the impugned judgment on any other legal ground available to them. He then urged that the appellants having moved earlier petition for eviction on the same ground (reconstruction) had failed ; because the sanctioned plan for reconstruction then submitted by them, was found to be lacking in legal requirements. Their applications were accordingly dismissed, this the learned counsel further argued, would operate as a bar on account of the principle of general res judicata contained in section 14 of the Urban Rent Restriction Ordinance, 1959.

6. Similar plea was raised from the respondents' side (as constituting a good defence) before the learned Rent Controller which was repelled for the reason that the questions raised in the fresh petition was not finally decided in the earlier proceedings. It seems that the respondents did not raise this plea again during the first appeals before the District Court. Be that as it may, apart from the fact that the plea was not finally adjudicated in the earlier proceedings, after going through the pleadings, we feel that there was a new cause of action and that the bar of general res judicata or for that matter, A one in the provisions contained in section 14 of the Ordinance, was no attracted.

7. The legal objections having been raised from the respondents' side having been overruled, we reiterate the view taken by this Court in the case of Haji Allah Ditta and hold that even if it be assumed for the sake of argument that the foundations of the existing building could support the first floor 'chaubara) proposed to be constructed by the appellants, this circumstance by itself, would neither show unreasonableness nor lack of good faith in so far as the requirement of reconstruction is concerned. The approach of the learned Courts below on this issue was not correct. Finding that the appel--lants having otherwise established the other conditions, as also, good faith and reasonableness, they were entitled to an order of eviction under section 13 of the Ordinance ; we accordingly allow their appeals and direct the eviction of the respondents- tenants/their successors-in-interest.

8. The learned counsel for the respondents sought time to vacate the shops and on his undertaking that if time is allowed, they would vacate the premises voluntarily and would also pay the rent, the learned counsel for the appel--lants has agreed. We accordingly allow two months' time on the condition of the undertaking/agreement by the learned counsel. There shall be no order as to costs.