MUHAMMAD ASHRAF Versus MUHAMMAD ALMAS

This judgment will dispose of S. A. Os. Nos. 139 to 144 of 1977 since the points of law and facts in all these cases are common.

2. All these are tenant's appeals against the appellate orders of Mr. Muhammad Naseem, Additional District Judge, Lahore, dated 15th January 1977.

3. The appellants are occupants of different portions of the same property and are tenants of Sh. Muhammad Almas respondent. The respondent filed six petitions for their ejectment on the ground of requirement of the property for reconstruction. In the case out of which S. A. O. No. 139 of 1977 arises ground of default was also added. The Rent Controller dismissed all the petitions which were based solely on the ground of require ment of the property for reconstruction but ordered eviction of Sh. Muhammad Ashraf appellant on ground of default.

4. The learned Additional District Judge allowed landlord's appeals against the appellants in S. A. Os. Nos. 140 to 144 of 1977 but dismissed the appeal of Sh. Muhammad Ashraf appellant in S. A. O. No. 139 of 1977. He set aside the finding of the learned Rent Controller on question of default. He, however, also set aside the finding of the Rent Controller on the question of requirement of the property for reconstruction and maintained the order of eviction on that ground alone.

5. The case of the respondent in his application was that the property in dispute was 80 to 85 years old, was in a dilapidated condition, was about to fall he wanted to reconstruct the same, and for the reason his plan for reconstruction had been sanctioned by the Municipal Corporation. In his statement, however, he confined his case to the property being 80 to 85 years old, to his desire to raise new commercial structure on the property in place of the old structure and that financially he was in a position to make the re construction.

6. The learned Additional District Judge held that the fact that the structure was an old one was taken into consideration along with other factors referred to above which were sufficient to prove the bona fide of the respondent as well as reasonableness of the requirement.

7. The learned counsel for the appellant raised the following contentions :-

(i) The respondent was bound to prove that the property in dispute was required bona fide and reasonably for reconstruction and this he could prove only in the light of the context made in the petition viz., by saying that the property was in a dilapidated condition and was likely to fall. The property having not been proved to be in a dilapidated condition, it could not be held in the circumstances of this case that the respondents' requirement was in any manner reason able or bona fide. Reference was made in this connection to Abdullah v. Adam All P L D 1961 S C 28, Shin Gul v. Abdul Majid P L D 1968 Quetta 45, Hassan and others v. Fancy Foundation P L D 1975 S C 1 and Zakaria Bros. v. Hashwani Sales & Services Ltd. P L-D 1978 Kar. 581.

(ii) In the case of Muhammad Ashraf, the learned Additional District Judge could not revert to the point. on which the Rent Controller had decided the case against the respondent in the absencs of any cross appeal or cross-objections. The Additional District Judge had, there fore, acted without jurisdiction in giving any finding on the question of requirement of the property for reconstruction in that appeal.

(ii) That the Rent Controller had acted illegally in so far as he had recorded the evidence in one case and had placed copies thereof in the other cases, thus depriving the appellants of an opportunity of cross-examining the witnesses independently. Reference was made in this respect to Malik Amon v. Haji Muhammad Tufail P L D 1976 Lab. 1446.

8. The learned counsel for the respondent, on the other hand, relied upon a number of authorities on this point and also on the last point submitted that this question was not raised by Muhammad Ashraf appellant before the learned Additional District Judge, which means that the procedure adopted by the learned Rent Controller had his implied consent. In support of his plea that this, in the circumstances of the case, could not be taken to be an irregularity vitiating the trial, he relied upon the Judgment in C. P. S. L. As. Nos. 115. 116, and 117 of 1980 decided on 5th February 1980.

9. The cases relied upon by the learned counsel for the appellants on the first contention about reasonableness or bona fide nature of the require ment for reconstruction are all distinguishable. In Abdullah v. Adam Ali the facts were that the landlord while applying for certificate to the Rent Controller under section 10(2), Karachi Rent Restriction Act, 1953, had linked up the requirement of reconstruction with his own personal requirement expressly and in most specific manner and the findings of the Rent Controller specifically negative each of the personal requirements alleged by the landlord. It was in these circumstances that their Lordships of the Supreme Court held that these findings must necessarily react upon the allegation of reasonable and bona fide requirement for reconstruction. Requirement for reconstruction, for the sake of reconstruction, is not a valid requirement to enable a landlord to obtain ejectment of a tenant under the Act. It must be a reasonable and bona fide requirement. In the present case, there is no such evidence.

In Shin Gul v. Abdul Majid it was held by the District Judge that the fact that the landlord had applied for the sanction for the re-construction of the premises before the rent became due confirmed his bona fide. In view of this it was held in appeal that it was necessary for the landlord to show that he required the premises reasonably and in good faith for the said re-construction. The principle is well established that the sanction for reconstruction is only one of the several ingredients and the learned District Judge in that case had not taken into consideration the other ingredients of reasonable and bona fide requirement but had based his judgment only on the ground that the sanction itself proved the bona fides.

Hassan and others v. Fancy Foundation is about old law under which the landlord had a right to eject a tenant after the sanction, without proving his bona fides or reasonableness of his requirements. This case is of no help.

Messrs Zakaria Bros v. Hashwani Sales & Service Ltd. is also not helpful to the appellants. In that case it was held that where the landlord wanted to construct a new building consisting of three storeys with godowns, offices and residential accommodation thus showing landlord's intent to improve and substantially develop property, his requirement for reconstruction was reasonable and bona fide.

The proposition that re-construction made for the purpose of improve ment and development of the property is sufficient proof of the bona fide and reasonableness of the requirement of the landlord is now an established one. In Mauls Dad v. Sardar Khan ( P L D 1972 Quetta 39 ), it was held that the word "reason able" is a word of wide import and its meaning cannot be curtailed arbitrarily. The law invests the Rent Controller with a discretion and no hard and fast rule can, therefore, be land down for the exercise of that discretion except that it has to be exercised judicially. In view of this any reconstruction which would enable the landlord substantially to develop or improve his property would be reasonable within the meaning of clause (vi) and the provision in clause (vi) that a landlord cannot rebuild his property unless he requires it reasonably and in good faith is not a novel provision in rent laws.

Reference was made to two cases-one of the Bombay High Court and the other of the High Court of West Pakistan (Karachi Bench). In B. D. Pudumji v. Sir Dinshaw Manekji Petit ( 22 Bom. L R 88 ), Macleod, C. J. obsermd as follows

"Now, admittedly the house in which the defendant is a tenant together with the adjoining house is very old. The rooms are dark and badly ventilated; and certainly it would tend to the improvement of the premises and for the better conditions of the tenants who would occupy the new premises, that the present house should be pulled down and a new house built on the site with all modern conveniences. I cannot see, therefore, that there was anything unreasonable in the plaintiff's conduct in wishing to get the tenants of the present house to vacate in order that proper improvements might be made. It was never intended, as far as I can see, by the Bombay Rent Act that the improvement of old, ill-erected, badly ventilated premises should be entirely stopped until the Rent Act is repealed. All that the Courts have to do in construing section 9 of the Bombay Rent Act is to see that the landlord is acting reasonably. If it was found that the owner of a perfectly new building built, just before the Rent Act came into operation. wanted to pull down that building and build another one, it is quite possible that in these circumstances the Court would think that the landlord was quite unreasonable. In this case we have none of those circumstances."

This judgment was followed in Hassan Ali v. Ahmad Khan and others ( P L D 1.960 Kar. 23). This detailed judgment of the High Court of Sindh and Baluchistan Maula Dad v. Sardar Khan has laid down the law which still holds the field.

In Muhammad Haroon v. Ghulam Mustafa ( 1978 S C M R 151 ), the Courts below had concurrently found that the landlord reasonably and bona fide intended to demolish the existing shops and construct the same by amalgamating his own shop with that of his upcle. It was asserted by the respondent that his uncle had also filed an ejectment petition against his tenant which had succeeded. It was held that the respondent has merely adopted a device to pressuries the petitioner to pay higher rent and the provisions of sub sections (5) and (5-A) of section 13 of the West Pakistan Urban Rent Restric tion Ordinance, 1959 provided sufficient safeguards against the adoption of any dishonest device by a landlord in such cases.

In Ahsanul Haq and 5 others v. Abdul Rahim etc. ( P L D 1979 Lab. 533 ), the building was 70/80 years old and was also in a dilapidated condition. Nothing had been brought out, even in cross-examination, to show that requirement was not bona fide. In these circumstances the order of ejectment was maintained.

In another case reported in the same report Muhammad Hussain v. Ha/1 Muhammad Tufail ( P L D 1979 Lab. 654 ), it was pointed out that the development intended to be made by the landlord in his property cannot be arrested and made subservient to requirement of the tenant.

Muhammad Hafeez v. Muhammad Suleman and another ( 1979 C L C 757 ), is a case very much alike the present case. It was held that building, even if a building is not dilapidated condition, the landlord can reconstruct it for enhancing its value and seek ejectment of the tenant.

In Haji Allah Ditta v. Mst. Shahzadi Bilqis (1980 S C M R 41) it was held that "it is not necessary that a building must be so sold and dilapidated that it is about to fall down before the landlord can be considered justified in wanting to. demolish and reconstruct it. Every person has the right to improve his property; utilize the land 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 habitable or sufficiently strong to last for another few years. The mere fact that the landlord is willing to demolish the old building and invest a large amount of money in constructing a new one, notwithstanding the tremendous increase in the cost of construction, and the fact that he is willing to undergo imprisonment on his failure to demolish the building- or to reconstruct it within a specified period is sufficient to establish his bona fides."

10. It would be clear from these authorities that the Courts have held in favour of the landlord's right to improve his property and to develop it. It has also been held that though the requirement of the landlord must be reasonable and bona fide but each case has to be decided on its own merits and no cut and dried formula can be laid down which can be applied to all cases uniformly. The building is not necessarily to be in a dilapidated condition or likely to fall down before the requirement can be held to be bona fide or reasonable and the fact that the landlord is willing to demolish the old building and invest large amount of money in constructing a new one notwithstanding the tremendous increase in cost and also takes the risk of undergoing imprison ment on his failure to demolish the building or to reconstruct it within a specified period are sufcient to prove -his bona fide requirement.

11. These principles are all applicable to the facts of the present cases. The property in dispute in these cases is 80 to 85 years old, there is no rebuttal of this point. The landlord has shown his irrevocable intention to re-construct this building. He has obtained the necessary permission. He is ready to undergo all the expenses of reconstruction notwithstanding the increase in the cost of construction. He has also, resources to carry on construction. There is nothing against him that h wants to eject the respondents or he wants to increase the rent in an manner because this is not the case of the appellants at all. In the circumstances the finding of fact that the property in dispute is required reasonably and in good faith for re-construction does not require an-interference and I am in full agreement with the learned Additional District Judge on this finding.

12. The other point taken in the appeal of Muhammad Ashraf only that is the absence of cross-objections the learned Additional District Judge had no jurisdiction to set aside the finding of the learned Rent Controller on the issue about requirement is based upon Khalrati v. Aleemud Din (PLD 1973 SC 295). While interpreting Order XLI, rule 22. C. P. C. their Lordships held that "it is no doubt true that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection". In the circumstances of that case it was held that this principle did not apply because it amounted to attacking a decree and for asking its variation. The above principle, which is particularly laid down in Order XLI, rile 22, Cr. P. C. goes against the contention of the learned counsel far the appellant.

13. The appeal before the learned Additional District Judge was governed by the provisions of section 15 which admittedly does not required or provide for any cross-objections. It provides for an appeal by aggrieved party against an order from which that party is aggrieved. Whatever be the number of grounds taken in the application for ejectment the intention of the landlord is to secure ejectment of the tenant. If notwithstanding the fact, that ".me of the issues are decided against the landlord, or, the landlord according to the Rent Controller, otherwise proves some of the grounds and some of the issues covering the other grounds are decided in favour of the landlord, but the ultimate order of the Rent Controller is that of ejectment of the tenant, clearly he cannot be considered to be an aggrieved party for filing an appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance. In these circumstances, there being no provision under section 15 about the filing of an appeal in the circumstances of the case by the landlord, the general principle of law that the landlord can support the ultimate order of ejectment on the grounds other than those which had been decided against him by the Rent Controller, will apply. In Muhammad Tufall v. Barkat Ali (P L D 1967 Kar. 151) it was held that in an appeal against the order of the Rent Controller the respondent was entitled to support the order of the Rent Controller on grounds different from the one on which the Controller had based his decision. This view was also taken by me in Muhammad Hussain.v. Khateeb Ahmad. S. A. No. 150 of 1977. In the cases where the objection is that there should be a cross-objection, what is necessary to find out is whether any cross-objection or cross-appeal could have been filed by the respondent. However, cross-objections or cross-appeals can be filed only in those cases where part of the ultimate order or decree is against the respondent. In that case it becomes necessary to file some appeal or cross-objections. But if the entire order is in favour of the respondent and only some . of the issues had been decided against him it is not possible for him to file cross-objections or cross-appeal. In that contingency, the principle of Order XLI, rule 22, C. P. C. must apply that the respondent can support the ultimate order (of eviction of the tenant in the present cases) even on the grounds or issues which have been decided against him. This would, no doubts means that he will have to show to the appellate Court that the order of the Rent Controller on those issues or those grounds was absolutely incorrect and that it should be set aside by the appellate Court. Mst. Jamila Begum v. Awam-un-Nass and others ( P L D 1978 Lah. 1376 ).

14. In view of this, the argument of the learned counsel for the appellants is without force. The order of eviction being in favour of the landlord he could not have filed any cross-objections or cross-appeal and could only support the ultimate order of eviction by showing that they order of the Rent Controller on the issue of reconstruction could not be maintained.

15. The third argument of the learned counsel for the appellants i equally without force. Even if it is conceded that the learned Rent Controller has recorded the evidence of the parties only in the case of Muhammad Ashraf (appellant in S. A. O. No. 139 of 1977) and has copied the same in other cases, it must have been done by the Rent Controlle with the consent of the parties. It is for this reason that this point was not raised either in the cross-appeal- or during the arguments before the Warned Additional District Judge.

16. It is no doubt true that in Malik Aman v. Haji Muhammad Tufail (PLD 1976 LAH 1466) also the evidence of both the parties was recorded in one case and copied verbatim in other six cases, the witnesses having been subjected to examination and cross-examination in one case only it was held that this was a case where the parties have not been given an opportunity to cross-examine the witnesses in each cast: separately and the proceedings resulted in grave prejudice to the tenants-appellants. This principle cannot be applied to the facts of the present case in which it appears that there 'was implied consent of the appellants in the procedure adopted by the; Rent Controller.. In the unreported Supreme Court case of Muhammad Aslam v. Imam Bakhsh ( 1980 S C M R 879 ) similar question was raised The contention was impelled and it was held that the "trial continued for a period of about three years, a4d during all that long period no objections of the present kind was raised before learned Civil Judge This implies that the procedure aforesaid wits adopted with the consent of the parties who were duly represented by their respective counsel. The point was not raised either in the memorandum of appeal or at the time of arguments before the learned Additional' District Judge and in these circumstances, the High Court refused to attach any importance to the same. We agree with the High Court that n the facts in the peculiar circumstances of this case, it was too late .to raise this plea before the High Court and we should say now before this Court, when in the relevant Courts below the mode of recording a evidence and maintaining the record was not objected to at any stage." The cases before their Lordships of the Supreme Court were, however, in which a particular procedure has been provided by the Code of COW 1 Procedure, but no such procedure is provided in the West Pakistan Urban Rent Restriction Ordinance, 1959. It is for the Rent Controller a persona designata to adopt any procedure. in these circumstance, the procedure evolved or adopted with the consent of the parties impliedly or expreslly cannot be commented upon unfavourably:

17. There is n merit in either of these a. p s which. are, dismissed with costs. The apellants are, however, allowed me till 30th May 1980, to vacate the premises.

S. Q. Appeal dismissed.