FAZAL KARIM & SONS Versus FAYYAZ AKBAR

ORDER

MUHAMMAD AFZAL ZULLAH, J.‑ ‑Leave to appeal has been sought in these three petitions from Judgment dated 19‑10‑1987 of the Lahore High Court; whereby First Appeals of respondent/ landlord in a rent matter were allowed and the petitioners/ tenants were ordered to be evicted on the ground of demolition of the building in dispute and construction of a new building‑ ‑reconstruction so‑called.

2. The respondent /landlord sought eviction of the petitioners from the shops in dispute, which are situated in a cantonment area on different grounds‑‑the ground of reconstruction is common to all. The learned Rent Controller, Rawalpindi Cantt. Vide his Order date: 12‑3‑1986 dismissed the ejectment petitions. The appeals filed by the respondent /landlord before the High Court (under the amended law the appeal lies to the High Court) were allowed on the ground of reconstruction.

3. The learned counsel for the petitioners, when seeking leave to appeal against the Judgment of the High Court, has contended that while reading section 17 (2)(vi) of the Rent Restriction (Cantonment) Act (XI of 1963), the question of good faith and reasonableness are relevant; and, have to be read into the provision. The learned counsel has also contended that if the requirements of reasonableness and good faith are to be treated as necessary ingredients of the ground mentioned in section 17(2)(vi), the High Court having failed to record a finding in favour of the respondent/ landlord on this question, could not have directed the petitioners' eviction on ground of reconstruction.

4. Section 17(2)(vi) of the Act is reproduced below:‑---

"17(2)------and the Controller may------ make an order----- if he is satisfied that: ‑

---------------------------------------------------------------------------------------------------------------------------

(vi) the landlord intends to demolish ‑the building for constructing a new building on the same site and has already obtained the necessary sanction for such construction from the Cantonment Board."

5. To begin with, it is necessary in the circumstances of this case to deal with the second argument of the learned counsel. It will not be correct to say that the learned Judge in the High Court did not render a finding in favour of the respondent/ landlord on the question of reasonableness and good faith. It was observed in the impugned judgment that 'it is sufficiently proved that the appellant, (respondent herein) who was also a practising Advocate has chalked out clear plan to improve his property by making new constructions in place of the old one. Defence evidence was insufficient to discredit the statement of the appellant. It was also held by the High Court that sufficient evidence had been produced by the respondent to indicate that he "genuinely" required the accommodation presently occupied by the petitioners "for its demolition and reconstruction".

It is not denied that the words good faith and or reasonableness have not been used in section 17(2)(vi) in connection with the ground of reconstruction. Therefore, if at all something relating to the bona fides, good faith or reasonableness is to be read in the words "demolish" and "constructing" used therein; it can safely be said that, if necessary, words similar to reasonableness etc. could also be read therein. In the findings of fact by the High Court the word used regarding the bona fides of the respondent is "genuinely". In the circumstances of the case and in the context of the discussion by the High Court it definitely represents what is meant by reasonableness and good faith. We therefore, are of the view that there is no force in the second argument of the learned counsel; because, there is a finding of fact in favour of the respondent on the question of reasonableness and good faith.

That being so, answer to first question raised by the learned counsel,‑ has become simple on account of the Judgment of this Court on similar question in Ali Akbar and others v. Syed Tanweerul Hassan and others 1986 S C M R 1042. In almost similar circumstance as in the present case as analysed above, the Court observed at page 1044 of the Report of that case:‑

"In support of the present petitions it is contended by the learned counsel that although the relevant clause of section 17 of the Cantonments Rent Restriction Act, does not expressly provide for good faith and reasonableness as necessary requirements for obtaining possession on the ground of reconstruction of a building they are necessary to be implied in the language of the statute. The argument was that a landlord cannot for the mere asking be entitled to obtain possession from the tenants on the ground that he wishes to demolish the building and construct a new one on the same site, but that he must further prove that he requires to do so reasonably and in good faith. On the plain reading of the provisions of section 17(2)(vi) of the Cantonment Rent Restriction Act, we find no warrant for this argument and on a first impression we are not satisfied that the tests of reasonableness and good faith to be read into the said provision or applied to cases thereunder. Be that as it may we are not inclined to go into this question of law, for we agree with the view taken by the learned Judges of the High Court, that the findings of the learned Rent Controller that the applications for eviction were actuated by mala fide was not sustainable on the evidence on record. In this connection the learned Judges observed .........................................Therefore, in our view on facts there was no material to hold that the landlords were seeking eviction of the petitioners for ulterior reasons and without good faith. It necessarily follows that having fulfilled the other requirements of law, the landlords had fully justified their claim that they required the building for demolishing and constructing a new building on the same site. It has been held by this Court even in connection with similar provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, which contain an express provision for good faith and reasonableness, that where the landlords seek reconstruction of a building for the purpose of substantially developing or improving the property, the requirement cannot but be held bona fide and reasonable, see Hadi alias Abdul Hadi Hasan and others v . Syed Ali Haider and others P L D 1983 S C 342."

6. Even if it was to be held that the ingredients of reasonableness' and good faith are to be read in the ground mentioned in section 17(2)(vi), the findings by the High Court in that behalf being again s the petitioners, no justification has been made out for interference in] these petitions. They are accordingly dismissed.

7. The learned counsel for the respondent has agreed to allow four months time to the petitioners for vacating the shops and handing over vacant possession voluntarily to the respondent/ landlord without any proceedings for execution. We order accordingly.

8. There shall be no order as to costs.

M .I . /F‑40/ S Petitions dismissed.