MUHAMMAD RAGHIB Versus SERVICES INDUSTRIES LTD

1. Aggrieved by the order, dated 14th September, 1982 of the Rent Con troller, Jacobabad, dismissing his ejectment Application No. 4 of 1981, the appellant Muhammad Raghib has come in this appeal.

2. The appellant claitus to have purchased the disputed premises bearing C. S. 212, Ward No. 2 Jacobabad by a registered sale‑deed, dated 14th February, 1980. The respondents No. 1 who were in possession of the said premises were intimated about the change of ownership by a notice, dated 7th May, 1980. Since the appellant had purchased the premises for re construction of the building as per his requirements, he obtained necessary sanction and got construction plan approved from the Municipal Com mittee. Even prior to purchase of the premises by, the appellant, the res pondent No. 2 was apprised about the dangerous condition of the building by notice, dated 15th November, 1979 by the Municipal Committee. The respondents were, therefore, asked to vacate the premises but they paid no heed to the appellants' demand. It is also alleged that the respondents failed in paying arrears .of rent from 14th February, 1980 at the rate of Rs. 170 p. m. and thereby rendered themselves liable for ejectment. Accordingly the appellant filed ejectment application seeking ejectment of the respondents on the aforesaid two grounds. However, the ground of default was subsequently dropped.

3. The respondents have opposed their ejectment from disputed premise vehemently denying that appellant needed the premises for re‑construction. The learned Rent Controller after taking into consideration the evidence led by the parties dismissed the ejectment application holding that the appel lant has failed to make out his case. The learned counsel for the parties were heard in support of their respective view points. As stated above the learned counsel for the parties were heard in support of their respective view points. As stated above the learned counsel for the appellant has press ed only the ground of reconstruction in support of the appeal.

4. It was submitted by the learned counsel for the appellant that the sanction for re‑construction of the disputed building which has been obtain ed from the Municipal Committee and the approval of the construction plan accorded by the said committee go long way to prove the appellants case that he needed the building for reconstruction. The learned counsel also referred to the notice which was served on the respondents by the Municipal Committee intimating them about the dangerous condition of the disputed building in their occupation. It was further argued by him that under the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as new Ordinance), the appellant was not under any legal obligation to prove bona fides of his demand that he needed the building for reconstruction. On the other hand the learned counsel for the respondents assailed the genuineness of the documents of the sanction and the approval of construc tion plan. He further submitted that appellant's own pleadings indicate that he did not require the building for reconstruction but he only wanted to carry out some repairs. He also repelled the argument that bona fides of the appellant's demand are not to be under the new Ordinance.

5. The first point agitated at the bar was that the plea taken by the appellant in his ejectment application does not support his case that he needed the building for the purpose of reconstruction. It rather shows that he wanted the premises in order to carry out certain repairs only. In this connection reference may be made to para. No. 7 of the ejectment applica tion which reads as under

6. "That for the purpose of reconstruction, the applicant requires the vacant possession of the rented premises for reconstruction and as such the applicant has got necessary plan approved from the Municipal Administration, Jacobabad. He also obtained necessary sanction for the work of reconstruction from the Municipal Committee, Jacobabad vide Order No. 864, dated 20th January, 1981. The applicant has also deposited the requisite fee of Rs. 210 as map fee with the Municipal Committee, Jacobabad under receipt No. 1752, dated 20th January, 1981."

7. It is clear from the above para. that the appellant has taken the plea of reconstruction in an unambiguous language. The learned counsel for the respondent has, however, pointed out to the para. No. 6 of the application which according to him clearly shows that he required the building for, repairs only. In para. 6 of his ejectment application, the appellant has nor doubt mentioned the details of the additions and alterations intended to be' carried out in the building. It may, however, be observed that this para. cannot be torn from the remaining .text of the ejectment application and read in isolation. In order to appreciate the appellant's case and the pleas taken by him, the ejectment application is to be read as a whole. As has been stated above, the appellant has taken a definite plea in para. 7 of his application that he needed the building for reconstruction, Thus, the argument of the learned counsel for the respondents that appellant intended to carry out only some repairs is not tenable.

8. Coming to the next point that in view of the new Ordinance, it is not incumbent upon the landlord to prove the bona fides of his demand, the bare text of the relevant provision should serve as a guide. As provided in section 15(2)(vi ) of the New Ordinance, all that the appellant has to prove is that he requires the building for reconstruction. It would appear that words "good faith used in section 13 (vi) of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred as old Ordinance) have been omitted in the new Ordinance. The omission does not appear to be without significance. The appellant is no longer under any legal obligation to furnish proof of bona fides of this demand.

9. The learned counsel for the respondents has referred to the authority reported as Syed Israr Alam v. S. M. Hussain (1983 C L C 468) wherein it was observed "The mere use of word `need' would envelope the concept of bona fides. After all it has to be established that a person needs the premises, and, in such enquiry, it can never be said that the word has to be interpreted as if it were divorced from the concept of bona fides, or mala fides. Taking that view' would mean that even unreasonable and fanciful need will have to be met only if the landlord were to come and say that he needs the premises. Such an intention could never be attributed to the Legislature, because the Sind. Rented Premises Ordinance, is enactment of a nature that is designed to protect the right of occupation of a tenant','

10. With due respect of the views expressed in the above reported case, I cannot persuade myself to believe that the concept of bona fides/mala fides is divorced from the demand or need of the disputed premises, the land lord could come up with the demand or need which may be fanciful or un reasonable. In my opinion, the legal safeguard provided in subsection (3) of section 15 of the new Ordinance is enough to take care of such a contingency. Should the landlord put forward a demand which turns out to be reasonable or fanciful, he would incur the penalty of restoring the possession to his tenants ejected from the premises.

11. Even if it be assumed that despite the absence of the words "bona fide" or "good faith" in the new Ordinance the landlord has to prove the bona fides of his demand, the question would arise what kind of proof is required for the same. In this connection reference has been made to Ghulam Jillani Aftab Ahmed (1982 C L C 1743) in which the Supreme Court authority reported as Muhammad Akbar and another v. Dr. Muhammad Rafique etc. (1980 S C M R 483) has been relied upon in support of the view that in order to get possession of the rented premises for the purposes of reconstruction the landlord is required to prove sanction of the competent authority for the reconstruction. It was further held in the same: Supreme Court authority that if the Rent Controller was satisfied that the sanction was valid he would be justified in making the order of the ejectment. In .the instant case the appellant has not only produced sanction of the competent authority namely the Municipal Committee but has also produced the construction plan duly approved by the said committee. In my opinion the intention of the appel lant expressed by him in his ejectment application that he needed the premises for reconstruction, coupled with production of aforesaid documents should be sufficient to prove that the appellant needed the premises for reconstruction. As an additional evidence the learned counsel for the appellant has also relied upon the notice served on the respondents pointing out to them the dangerous condition of the building. The learned counsel for the respondent has taken a serious exception to the above notice, con tending that it has no evidentiary value firstly because the previous land lord has managed to get it served in his own interests and secondly sub sequent to the service of the notice the necessary repairs were carried out in the building.

12. It may be observed that reconstruction is not always undertaken when the building is in bad shape or is in dangerous condition. Sometimes reconstruction becomes necessary in order to remodel the existing structure, to meet the new and additional requirements of the owner. Assuming that after service of the notice referred to above on the respondents, certain repairs were made in the building, the appellant who is admittedly owner/ landlord of the building was still free to have the existing structure de molished and in its place to have new structure erected. Thus, the repairs, if any, carried out in the building following the aforesaid notice would not tantamount to placing any bar on the appellant on his undertaking recons truction of the building if he so desired. Even after getting the disputed building vacated on the ground of reconstruction, if the landlord/owner abandons the idea of the reconstruction, and prefers to leave the site vacant after demolishing of the existing structure there is nothing in the law to stop him from doing so. The only embargo placed on him is that if he does not have the building demolished within six months period specified in sub‑section (3) of section 15 of the new Ordinance, the respondents/ tenants would be entitled to be put in possession of the disputed premises. Thus, even if the sanction for reconstruction and approval of construction plan have been obtained dishonestly without any intention of undertaking the reconstruction, the only penalty to be imposed for this default is that the respondents/tenants would be entitled to get back the possession of the dis puted premises. But in the meantime no mala fide or dishonest intention would be attributed to the appellant.

13. As for the point that the sanction and approval obtained from the, Municipal Committee are not genuine documents, it may be pointed out that since they have been issued by the competent authority in ordinary course of its business presumption of genuineness would be attached to them until contrary is proved. The burden of such proof is of course on the respondents. But they have not be able to bring any evidence on record. It is also noteworthy that the genuineness of the documents are not genuine would not render them as false documents. It would appear that both the documents are in the letter form: It is common knowledge that the letters which form part of official correspondence, do not always carry the official. Mere omission to seal them would not, reflect on their genuineness unless of course definite proof is furnished to show that they are the result of forgery. . Since no such evidence is available on the record, it would not be justified to doubt the genuineness of the meats.

14. In view of the foregoing reasons 'the appeal was allowed by short order dated 21st September, 1983 directing the respondents to hand over vacant possession to appellant within four months of the said order and in the case of default the writ of possession was ordered to be issued without notice to the respondents

15. M.Y.H Appeal allowed