GUL MUHAMMAD Versus ASMAT ARA

ORDER

1. ABDUL KADIR SHAIKH_, J.‑‑ Facts of this case briefly stated are that respondent landlady applied for petitioner's eviction from the demised property on the ground that she desires to construct a new building thereon for which purpose she had already obtained the requisite sanction of the Municipal Corporation, Quetta. Petitioner, in defence, inter‑alia raised a preliminary objection, "that the plot in question is not a rented land as contemplated under Ordinance VI of 1959, therefore, this Honourable Court has no jurisdiction to adjudicate upon the matter. The present application is not maintainable, as such merits dismissal".

2. In view of the above plea raised by the petitioner learned Rent Controller framed the following preliminary issue for decision:

3. "Whether this Court has no jurisdiction in view of preliminary objection B of the written statement."

4. After recording evidence of the parties learned Rent Controller held that the plot in question was "a rented land" and decided the preliminary issue in favour of the respondent‑landlady and simultaneously by the same order, dated 13‑9‑1984 held as follows:‑

5. "As the respondent (petitioner herein) had maliciously challenged the jurisdiction of this Court and delayed the proceedings of the case to harass the applicant which is objectionable and in the circumstances the respondent is not entitled for any further tenancy right as such he had made himself liable for eviction."

6. On this view of the case, learned Rent Controller directed the petitioner to hand over vacant possession of the plot to the respondent landlady within two months.

7. Petitioner filed an appeal against the order of the Rent Controller, but it was dismissed by a learned Judge of Baluchistan High Court by judgment, dated 13‑8‑1985. As regards the plea raised on behalf of the petitioner that after the decision of the preliminary issue, Rent Controller ought to have decided that case on merits regarding respondent's assertion that she bona fide requires the premises for construction, learned Judge in the High Court concurred with the view that prevailed with the learned Rent Controller and further observed as follows:‑

8. "It was, therefore, known to him that he had obtained the plot in question to run his business of Saw Mill. Consequently this plot was a rented land as defined in the West Pakistan Urban Rent Restriction Ordinance, 1959. In spite of this clear knowledge, the appellant had the audacity to urge that the plot was not a rented land and also denied to accept the jurisdiction of the Rent Controller. He also raised many false, frivolous and vexatious objections in his written statement. His only purpose seems to be to delay the proceedings and remain in possession of the property for as much period as he could manage. His conduct from the very beginning was contumacious and actually it was an abuse of process of law if not fraud upon the statute. By raising a false and frivolous plea he delayed the proceedings for more than 5 years and now he wants that the case be remanded to the Rent Controller for a fresh trial on merit which may again take 5 years to conclude and in this way he wants to deprive the respondent of the property.

9. The learned counsel for the appellant has urged that the respondent herein, had to prove her bona fide intention to make the construction over the property and for that matter the case should be remanded. However, for the foregoing reasons I am unable to accept this contention. This will have the effect of depriving the landlord of the possession of her property for another 5 years when the end result is likely to be the same as is now."

10. Mr. Basharatullah, learned counsel appearing in support of the petition submits that after the decision of the preliminary issue in respondent's favour, it was obligatory for the Rent Controller to have decided the question whether the respondent‑landlady "reasonably and in good faith" requires the premises for the reconstruction or erection of a building at the site as the aforesaid assertion made by the respondent‑landlady was highly disputed by the petitioner.

11. The above plea has great force in view of the fact that under section 13(2)(vi) of the Ordinance, the Rent Controller is to be satisfied on the basis of the evidence produced before him by the parties that the rented land is reasonably and in good faith required by the landlady for the reconstruction or erection of a building at site and also that the landlady has obtained the necessary sanction for the said reconstruction or erection from the Municipal Corporation, or similar authority before he can order eviction of the tenant. This view has support of several decisions of this Court and considering the force of this aspect of the case which is lacking on record, learned counsel for the Caveator, very candidly and rightly, stated that the Rent Controller has, of necessity, to decide the aforesaid question, and further submitted that he has no objection if the petition is converted into an appeal and the case is remanded to the Rent Controller for decision on merits on the above aspect of the case. He further prayed that since this is an old case, the Rent Controller may be directed to dispose of the case at a very early date.

12. We, therefore, convert this petition into an appeal and allow it, and as a result set aside the impugned judgment of the High Court as well as the order of the Rent Controller, dated 13‑9‑1984 and remand the case to the Rent Controller for fresh decision after granting an opportunity to the parties to produce evidence in support of the respective pleas raised by them. The Rent Controller shall give priority to this case so that it should be decided within four months. The parties are left to bear their own costs.

13. M.I. Order accordingly.