Haji MUHAMMAD SIDDIQUE vs MUHAMMAD BAKHSH

ORDER

1. ' ABDUL KADIR SHAIKH, J.---This petition arises out of an application filed by petitioner-landlord for respondent-tenant's eviction on the ground that he was a defaulter in payment of rent from 1-1- 1973 onwards, that he had unauthorisedly sublet the demised premises and that the premises were required by him for demolition of the construction and erection of a new premises for his personal use. Respondent contested the ejectment application on all counts and on the pleadings of the parties learned Rent Controller framed the following issues for the determination of the controversy: "(1) Whether the respondent has failed to pay the rent or tender rent from 1-1-1973 and onwards?

(2) Whether the respondent has sublet the premises in question? If so to what effect?

(3) Whether the applicant bona fide and reasonably requires premises in question for demolition and reconstruction and the applicant after reconstruction bona fide requires the same for his personal use and occupation?"

2. ' After recording evidence produced by the parties, learned Rent Controller decided the first two issues against petitioner and the third in his favour. This is what he observed in his order dated 31- 12-1986 by which he directed respondent to vacate the premises and hand over possession thereof to the petitioner.

3. "Keeping in view the above discussion the applicant has been able to establish his case on the point of reconstruction and personal requirement. The applicant's requirement is bona fide. He has got the plans prepared and approved. Building permit has also been obtained by him from the competent authority. His position is financially sound and he can reconstruct the shops according to plan. It is also evident from the evidence, that without removing the Khokha (premises in question) the construction cannot take place. The same has been proved by RW-IV. The evidence of the respondent does not show that the requirement of the landlord for reconstruction of the building and other construction of personal requirement is in any way dishonest or the same is not bona fide. The plea that the landlord wants to enhance the rent is unfounded and does not find any support from the evidence on the record. In the light of the evidence available on record it is also clear that without removing the Khokha (premises in question) the construction cannot take place. The landlord produced the best kind of evidence in support of his plea of reconstruction and personal requirement are interlinked with each other. In circumstances of the case bona fides of reconstruction and personal requirement are fully established. The issue is therefore decided in affirmative. On this view I am supported by the following authorities:

(1) 1985 SCMR 1142.

(2) 1988 MLD 2391.

4. ' Being aggrieved by this order, respondent filed an appeal in the High Court. Petitioner also filed cross-objections against the order of the Rent Controller as regards the two issues decided against him. Learned Judge in the High Court who dealt with the appeal not only affirmed the view of the learned Rent Controller on the first two issues but also reversed his conclusion on the third issue, and in result accepted respondent's appeal and dismissed the cross-objections filed by petitioner by the judgment dated 16-7-1987. This is what the learned Judge in the High Court observed with regard to his finding on the third issue: "I have perused the approved plan Ex.A/1 with the dexterous assistance of the learned counsel for the parties. By perusing the plan Ex.A/1 it may be noted that nowhere at the place of 'Khokha' the proposed reconstruction has to be raised by the respondent; hence it could be well said that for the purpose of reconstruction of the building demolition of the `Khokha' is not necessary at all. It is also admitted by the respondent that no construction is to be made at the place where Khokha is situated. Hence it was vehemently contended by the learned counsel for the appellant that his client was being evicted mala fidely from the `Khokha' in result whereof the appellant would be stranded of his petty business. However it was the only anxiety of the learned counsel for the respondent to urge that at the place of the `Khokha' the respondent would raise a hanging staircase for having approach to the upper storey. It may be observed that in the first plan submitted by the applicant to the Municipal authorities the respondent proposed to have staircase at the place of `Khokha' but it was declined to him. The fact could be confirmed from the first plan which is available on the record. The last approved plan shows that the respondent would have a small gateway to the new constructed building from a portion under the `Khokha' It may be observed that when the demolition of the `Khokha' is not necessary for the reconstruction of the proposed building hence the need of the respondent is neither reasonable nor in good faith. I, therefore, hold that the finding of the learned Rent Controller on this issue is indeed an erroneous one which deserves to be set aside."

5. Mr. Iftikhar Muhammad, learned counsel appearing in support of this petition for leave to appeal submits that the conclusions reached by the learned Judge in the High Court are based on mere hypothesis, for, the approved plan clearly shows that unless Khokha (the demised premises) is removed, neither the demolition of the main building nor its re-construction can ever take place.

6. Learned counsel further urged that under the Rent Ordinance the landlord is always entitled to re- construct building for the purpose of bona fide personal use and occupation, and if for this purpose a sanctioned plan had been obtained indicating that without demolishing the previous building re-construction cannot take place, then the landlord is entitled to the eviction of the tenant.

7. ' Learned counsel further submitted that the learned Judge in the High Court has wrongly dismissed the cross-objections filed by the petitioner on the question of default by respondent in payment of rent and also for unauthorisedly subletting of the premises. In this behalf, he submitted that the rent receipts produced by the respondent do not indicate that he was paying the rent and indeed according to the finding of the Rent Controller the rent for the months of January to December, 1973 was deposited in December, 1980 therefore the default on the part of the tenant was fully established.

8. ' These and the other submissions raised in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition. Security Rs,2,500.

9. ' Appeal to he heard on the present record but it is open to the parties to file additional documents, if any.