FAIZUR REHMAN Versus Haji AMIR MAQSOOD
Haji Amir Maqsood, respondent No. 1 filed eviction petition in the Court of Rent Controller, Chitral against appellants for their eviction from disputed Hotel on the grounds of. default, personal need for the son of respondent No. 1 and re‑construction. The said application was resisted by appellants by filing written statement in which the relationship of landlord and tenant was denied. The learned Rent Controller vide his order, dated 11‑12‑1999 held that the relationship of landlord and tenant exists between the parties and proceeded with the case. The appellants filed appeal before the learned District Judge Chitral who dismissed the appeal and also struck off the defence of the appellants and passed ejectment order against them. They filed Writ Petition No.482 of 2000 before this Court which was accepted vide judgment and order, dated 18‑4‑2001. On the receipt of the case file the learned trial Court after framing issues, recording pro and contra evidence of the parties, dismissed the petition vide order/judgment dated 4‑3‑2002. Respondent No.1 filed appeal before the learned District Judge which was accepted vide judgment and decree dated 13‑5‑2002. The appellants have now called in question the judgment/decree passed by the learned District Judge, Chitral through this second appeal.
2. Mian Muhammad Younas Shah, learned counsel representing the appellants argued that Khizar Hayat was old owner of land underneath the Hotel. The Hotel in question was given in exchange to Haji Amir Maqsood in the year 1994. Before that on 7‑2‑1974 the land measuring 24 feet was given on rent to appellants at Rs.40 per month. They were to construct a shop thereon, pay Rs.40 per month out of which Rs.10 per‑ month was to be adjusted towards the cost of construction of the shop and the remaining Rs.30 was the amount of rent. The rent deed was executed on 7‑2‑1974 Exh.R.W.1/8 which was for the period of 5 years. It was, however, on 8‑3‑1974 that parties agreed to make additions in Exh.R.W.1/8. The additional terms and conditions were scribed on the back of the deed Exh.R.W.1/8 on 8‑3‑1974 according to which Khizar Hayat had undertaken not to ask for eviction of the shop on the ground of personal need till the entire amount spent on the construction of the shop was adjusted.
3. It was also argued that in the year 1985 the said Khizar Hayat sold the piece of land underneath the shop to petitioners for a sum of Rs.40,000 out of which the appellants paid Rs.36,700 on various dates. On execution of receipt by Khizar Hayat Exh.R.W.1/1 to 1/7 which was placed on record without any objection from the other side. Neither the fact of sale of land measuring 24 feet in favour of appellants was discussed by the Courts below nor the amount of Rs.36,700 paid through Exh.R.W.1/1 to 1/7 were discussed by the Courts below. The judgments and decrees of the Courts below are, therefore, based on misreading and non‑reading of evidence on record.
4. It was further argued that the appellants also filed civil suit before the learned Civil Judge/Allaqa Qazi Chitral but the plaint was rejected under Order 7, rule 11, Cr.P.C. vide order dated 11‑12‑1999.
5. It was also argued that there was no sanctioned site plan placed on file. As per section 13(2)(vi) of the Urban Rent Restriction Ordinance, 1959 the, sanctioned site plan was necessary for obtaining eviction order on the ground of reconstruction of property. Reliance in this regard was placed on 1980 SCMR 776.
6. It was also Argued that in paragraph 6 of the eviction petition, the respondent No.1 had stated that he alongwith his 3 sons were conducting their business in a rented shop and that he (landlord) needed his property for his, personal use but in the statement he introduced Noor Muhammad for whom allegedly the shop in question was required. He admitted in cross‑examination that he got one shop vacated from Khawaja Rehmat. As per proviso attached to subsection (3) of section 13 of the West Pakistan Urban. Rent Restriction Ordinance, 1959, if a landlord got his property vacated for his personal need, he could not get the other property vacated unless the same was insufficient for his requirement.
7. It was also argued that respondent No. 1 was not owner of land as Well as superstructure hence was not landlord Reliance in this regard was placed on PLD 1985 Supreme Court page 1.
8. On the other hand Mr. Saeed Baig, learned counsel representing respondent No. 1 argued that there was concurrent findings of, facts of the Courts below which cannot be interfered with in second appeal unless there is a question of law agitated by the appellants.
9. It was also argued that the landlord had successfully proved his case; that he required, the shop in question for his son Noor" Muhammad. He was not cross‑examined by the appellants. Statement of Haji Amir Maqsood recorded in another case was placed on file as Exh.P. W.A/1.
10. It was also argued that the, provisions of Transfer of Property Act were extended to the area vide Regulation‑II of 1974 on 20‑5‑1974 and the alleged rent deeds were executed on 7‑2‑1974 and 8‑3‑1974. As per section 7 of the Transfer of Property Act, the agreement was to be registered and as per section 111 of the ibid Act in case of denial of title by the tenant he was not entitled for protection of section 109 of Transfer of Property Act.
11. It was also argued that the impugned judgments and decrees were based on proper appreci9tion of evidence and need no interference.
12. I have heard the learned counsel for the parties and perused the record.
13. The eviction petition was filed by respondent No.1 for eviction of appellants from the disputed promises on 3 grounds:‑‑‑
(i) Default in payment of rent.
(ii) Reconstruction of the property in dispute.
(iii) Personal need.
14. So far as the plea of the default in payment of rent is concerned, the allegation of respondent No.1 was that appellants had failed to pay monthly rent with effect from 22‑7‑1996. Despite notice of change of ownership served upon them, he could not substantiate his plea of default. The previous owner, namely, Khizar Hayat appeared twice. He was once produced by respondent. No. 1/landlord and for the second time by the appellants as R.W.1. In his statement, Khizar Hayat sated that he had received monthly rent up to July, 1997 and thereafter appellants did not pay him any rent. The learned Rent Controller, keeping in view the statement of Khizar Hayat, held that appellants were not rent defaulters. This finding was concurred by the learned District Judge/Zilla Qazi Chitral and the respondent No.1‑did not further challenge the same, therefore, findings on the question of default have become final. Appellants are not willful rent defaulters.
5. So far as the plea of reconstruction of the property in dispute is concerned, the provisions of section 13(2)(vi) of the Urban Rent Restriction Ordinance, 1959 'are very clear, the same is quoted hereunder for convenience: "vi. The building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the 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 or rented land is situated".
The plain reading of the afore‑quoted provision of law indicates that in order to get an eviction order on the basis of reconstruction of property, the landlord has to obtain necessary sanction for the said construction or erection from Municipal Corporation, Municipal Committee or Town Committee or Town Improvement Trust for the area where such building or rented land is situated. If such a property is situated in Cantonment area, then necessary sanction is to be obtained from Cantonment Board.
16. The perusal. of the record shows that respondent No. 1/landlord in order to prove the plea of reconstruction placed on record copy of the site plan which was exhibited as Exh.P.W.1/2. No doubt this document was exhibited without any objection from the other side but the site plan exhibited on record was not sanctioned from the Municipal A Committee or Town Committee of the concerned area, therefore, respondent No.1 has failed to comply with the requirements of law. A similar question came up for hearing before the august Supreme Court of Pakistan in Messrs Ismail Brothers v. Kewalram 1980 SCMR 776 in which it was held:‑‑‑
"A Controller cannot pass an order of eviction unless the landlord proves that he has obtained the necessary sanction for the said reconstruction or erection".
Keeping in view the above quoted provision of law and the dictum laid down by august Supreme Court of Pakistan, it is held that no eviction order on the basis of site plan which had not been sanctioned by the competent authority, mentioned above, could be passed. The Court below have failed to take into consideration the law applicable I, therefore, reverse the findings given on the plea of reconstruction by the Court below.
17. So far as the plea of personal need taken by respondent No. 1 is concerned, he proved the same through convincing evidence. In para 3 of his eviction petition he stated:‑‑‑‑
18. No doubt he did not mention that the property in dispute was required for Noor Muhammad his son. In the above quoted paragraph 1 he had stated that each of his 3 sons was jobless. In his statement he further clarified that the shop in dispute was needed for his son Noor Muhammad, who was married and father of 2 children and wanted to run a separate hotel business, therefore, the shop in question was required for his use. This witness was subjected to lengthy cross‑examination but nothing favourable could be extracted by the appellants. In cross examination, this witness denied that his son Noor Muhammad was serving in Adda or was driving a Toyota Hiace but stated that he was jobless, Khizar Hayat, the ex‑owner was examined as P.W.2. He also stated that Noor Muhammad, son of respondent No.1 was father of. 2 children and was jobless. Noor Muhammad appeared as P.W.3 and stated on oath that he was father of 2 children, was jobless and wanted to run hotel business therefore, the premises in dispute was required by him in good faith. He was also cross‑examined at length but his statement was consistent and could not be shattered in cross‑examination.
The statements of the landlord and his son were consistent with the averments of eviction petition and as mentioned above, the same could not be shaken in lengthy cross‑examination or disproved in rebuttal. Even a solitary statement of the landlord was sufficient to prove his bona fide. Reliance in this regard is placed on the following reported judgments:‑‑
(i) Iqbal Book Depot v. Khatib Ahmad and 6 others 2001 SCMR 1197, (ii) Sardar Nabeel Wali v. Additional District Judge/Appellate Authority Sahiwal and others PLD 2000 SC 829, (iii) Muhammad Shuaib Alam v. Muhammad Iqbal 2000 SCMR 903, (iv) Juma Sher v. Sabz Ali 1997 SCMR 1062, (v) F.R. Irani and Co. v. Begum Feroz 1996 SCMR 1178, (vi) Jahangir Rustam Kalia v. State Bank of Pakistan 1992 SCMR 1296 and (vii) Muhammad Iqbal v. Sardar Bacha and 2 others 2002 YLR 1940.
19. So far as the argument of the learned counsel for the appellant that the respondent No. 1 had got vacated one shop from another tenant, namely, Khawaja Rahmat, therefore, as per provision of subsection (3) of section 13 of Urban Rent Restriction Ordinance, 1959, if landlord got his property vacated for his personal need, he could not get the other property vacated unless the same was insufficient for his requirement. This argument of the learned counsel has no force. Firstly because respondent was subjected to lengthy cross‑examination and not a single question was asked as to whether he got any property vacated from Khawaja Rahmat and that the said shop was in his occupation. Secondly, the statement of respondent No.1 which was recorded in another case, was placed on file as Exh.P.A./1. The said statement was never confronted to by respondent No. 1. Thirdly, if any shop was even got vacated, the same may be in possession of respondent No. 1. Since Noor Muhammad, the son of respondent No.1/landlord wanted to run a hotel, therefore, there was no evidence to show that the shop so got vacated from Khawaja Rahmat was sufficient for his requirement and that the I same was in his possession. Even otherwise it was the prerogative of the landlord to choose from all the several tenements occupied by tenants to avail of the personal requirement. Wisdom in this regard is gained from S.M. Nooruddin and 9 others v. SAGA Printers 1998 SCMR 2119, wherein it was held:‑‑‑
"The law is too well‑established on the point that a landlord had a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest cases of bad faith".
20. Likewise in Shahzada Ayyaz v. Mst. Zainab Bibi 2000 SCMR 485, Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 and Nasrulah Jan v. Mst. Farzana Begum 2002 CLC 1523 same view was taken. In the first cited authority i.e. 2000 SCMR 485 the august Supreme Court of Pakistan observed as under:‑‑‑
"It has been laid down in numerous cases that the choice to occupy a particular shop cannot be denied provided the landlord proves that he had no other shop suitable for his business and that the shop in question would suit his requirement and which he requires in good faith for his own occupation. If the tenant is unable to prove occupation of any other shop by the landlord sufficient for his requirement, then he cannot be allowed to say that the landlord should occupy another shop than the one in his possession".
20. There is another aspect of the case that the appellants/tenants have been given protection under subsection (4) of section 13 of Urban Rent Restriction Ordinance, 1959 that if the landlord obtains possession of a building in pursuance of an order made under sub‑paragraph (i) or sub‑paragraph (ii) or paragraph (a) of subsection (3) does not himself or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining possession, or having been so occupied is re‑let within two months of the said date to any person other than the original tenant, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly. Therefore, in case of failure of landlord to occupy suit shop within the stipulated period, the tenant has every right to seek repossession by filing an application in the Court of Rent Controller. Wisdom in this regard has been sought from the following reported judgments:‑‑
(i) Nasiruddin v. Muhammad Siddique 1981 SCMR 709, (ii) Mst. Toheed Khanum v. Muhammad Shamshad 1980 SCMR 593 and (iii) Nasrullah Jan v. Mst. Farzana Begum 2002 CLC 1523.
21. The argument of the learned counsel for the appellants that the appellants had purchased land measuring 24 feet from Khizar Hayat, ex owner for a sum of Rs.40,000 out of which they paid Rs.36,700 on execution of receipts Exh.R.W.1/1 to 1/7 and the Courts below did not consider these receipts has no force at all. The examination of the receipts shows that Exh.R.W.1/1 and 1/2 were receipts of rents, whereas Exh.R.W.1/3 to 1/7 are receipts through which various amounts were paid to Khizar Hayat, but it is not clear as to whether the said amount was paid towards the sale consideration or not. Perusal of the record shows that Khizar Hayat was once examined by the respondent No.1/landlord as P.W.2 and for the second time by the appellants as R.W.1. While appearing as P.W.2 in cross‑examination he stated:‑‑
While appearing as R.W.1 though he placed on record receipts Exh.R.W.1/1 to 1/7, in his examination‑in‑chief, but he termed those receipts to be rent receipts and never stated that through these receipts he received any part of the sale consideration. The appellants had failed to prove that they had purchased the land underneath the Hotel from Khizar Hayat. Another factor which goes against them is that they had paid the monthly rent to Khizar Hayat till 1997. If the appellants had purchased the land underneath the Hotel in the year 1985, then why did they keep on paying the monthly rent to Khizar Hayat till 1997, more specially when superstructure of the shop had allegedly been constructed by the appellants. The answer to this question is not available from the record. The corollary of the foregoing discussion is that the appellants failed to prove that they h9d purchased the land underneath the Hotel in dispute.
22. Keeping in view the above discussion, I find no justification to interfere with the impugned judgment/decree, dated 13‑5‑2002 passed by the learned District Judge/Zilla Qazi Chitral. Resultantly, the appeal in hand is dismissed with no orders as to costs. The appellants are directed to hand over vacant possession of the property in dispute within three months to respondent No. 1.
M.H./928/P Appeal dismissed.