BARKAT SHAH Versus AZIZULLAH KHAN

ORDER

1. MUHAMMAD HALEEM, J.-The petitioner seeks special leave to appeal against the judgment of the Peshawar High Court, Peshawar, dated 3rd of March, 1980, by which S. A. O. No. 22 of 1979 was accepted.

2. The petitioner was a tenant in respect of an open land with four walls described as Timber Mandi in Mardan City at a monthly rental of Rs.

125. The respondent herein sued for his ejectment on the ground that he required the open land for reconstruction which plea was accepted by the Rent Controller by order dated 21st of April, 1977, and the petitioner was ordered to vacate it. On appeal, the Additional District Judge, Mardan, reversed this conclusion as he was of the opinion that this requirement was not bona fide.

3. In second appeal, the High Court set aside the order of the Additional District Judge dated 20th of February, 1979, holding that he was in a financial position to raise a new construction for his benefit ; and further, that the requirement was made in good faith. The High Court next rejected the finding of the first appellate Court that the object of reconstruction was to override the provision of subsection (5-B) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, as the rented land would not be available to the petitioner after reconstruction.

4. In seeking leave to appeal the learned counsel contends that if the prayer to construct is allowed, the petitioner will be deprived of the benefit of section 13(5-B) of the West Pakistan Urban Rent Restriction Ordinance, 1959. But this contention is misconceived as from the evidence of both the parties it i clear that what was let out was the open land and not the building. This subsection affords protection to the petitioner in case of a rented building and not the rented land which does not find. mention in it. Therefore, there was no occasion for the first appellate Court to hold that by requiring the land for A reconstruction, the intention of the respondent was to override this provision with the object to deprive the petitioner of the. suit land which he would not have got if the construction was raised. The High Court has, upon examination of the evidence, agreed with the Rent Controller which conclusion is unexceptionable.

5. Accordingly, the petition is without merit and is dismissed.

6. Petition dismissed.