SHAMIM AHMAD Versus ABDUL KHALIQ

1. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is filed against the order of Rent Controller dated 31st August, 1982 granting application on the ground of reconstruction and bona fide requirement of the respondent. The main .contention raised by the learned counsel for the appellant in this appeal is that the ejectment application was instituted under section 13 (2) (vi) and section 3 (a) of the West Pakistan Urban Rent Restriction Ordinance, 1959, which required that the landlord while applying for ejectment of the tenant on the ground of reconstruction must prove his bona fide as well as reasonableness for such demand in addition to the production of a sanction of approved plan by the authorities concerned. Whereas the Rent Controller decided the case in accordance with the provision of section 15 (vi) of the Sind Rented Premises Ordinance, 1979 under which the requirement for proving the bona fide and reasonableness has been dispensed with. It is contended by the learned counsel that as the application was instituted under the old Ordinance VI of 1959 it should have been disposed of in accordance with the provisions contained in the said Ordinance as section 27 (3) of the Ordinance 1 of 1979 only makes the procedure under the new Ordinance applicable to the proceedings instituted under the repealed Ordinance. The rights and liabilities of the parties according to the learned counsel for the appellant, in spite of repeal of Ordinance VI of 1959 shall continue to be governed in accordance with that Ordinance. A reading of the order of the Rent Controller clearly shows that while deciding the present application on the ground of reconstruction the Rent Controller was of the view that after coming into force of the Ordinance 1 of 1979 the application is to proceed under the new Ordinance and since under the new Ordinance the only requirement for succeeding on the ground 'of reconstruction by a landlord is the production of a sanction from the local authorities, therefore, all the requirements necessary for succeeding in such an application has been fulfilled by the landlord. The following passage from the order of the Rent Controller clearly bears out the contention raised by the learned counsel for the appellant in his appeal:‑

2. "The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within said period as may be specified in the order, if he is satisfied that,"

(i) ..............................................................

(ii) ...............................................................

(iii) ..............................................................

(iv) .............................................................

(v) ...............................................................

(vi) The premises is required by the landlord for reconstruction or erection of a new building at the site and the landlord has obtained necessary sanction for such reconstruction, or election, from the 'authority, competent, under any law for the time being in force to give such sanction.

3. Thus, the only requirement of law is that the landlord has to prove that he has obtained necessary sanction from the competent authority. It is pointed out above that applicant has produced sanction and approved plan, duly granted by K . M . C . and the authority of the K.M.C. has not been challenged by learned counsel for opponent in the cross‑examination of applicant and his witness. Hence, the applicant produced sufficient material on record in support of his contentions."

4. In view of the decision in the cases of Abdul Rehman v. Mohammad Ahmed Khan P L D 1982 Kar. 532 and Abdul Wasi Jamil v. Mrs. Nasreen Tofazal 1984 C L C 1031 it is now well‑settled that an application A instituted under the Ordinance VI of 1959 has to be disposed of in accordance with the provisions of the said Ordinance although the procedure for disposal of that application will be governed under the new Ordinance (XVII of 1979). As there is no doubt after reading the order of Rent Controller that he was under the impression that after enforcement of Ordinance XVII of 1979 the landlord is not required to prove his bona fide and reasonableness in so far the ground of reconstruction is concerned there is an error which is apparent on the face of the order of the Rent Controller. I would accordingly accept this appeal, set aside the order of Rent Controller and remand the case back to the Rent Controller for holding further enquiry and dispose of the application in accordance with provision of section 13 (2) (vi) of Ordinance VI of 1959. The Rent Controller while holding further enquiry will allow the parties to lead such further evidence as they may desire in this regard. As the case was originally instituted in the year 1978 the Rent Controller will make every effort to dispose of this case within six months of the receipt of R&P. There will be no order as to costs.

5. H . B . T . Appeal accepted.