Haji SAADAT HUSSAIN vs INAYATULLAH KHAN And 2 Other
This matter concerns a petition for leave to appeal filed by a tenant against the dismissal of a Constitutional petition by the High Court, which had upheld an eviction order based on the landlord's stated requirement for reconstruction. The core legal question is whether an eviction for reconstruction is sought in good faith when the landlord seeks to evict only one tenant while leaving a contiguous tenant undisturbed, and whether such construction could feasibly proceed without the tenant's eviction. The Supreme Court granted leave to appeal, noting that the landlord failed to adequately address why the petitioner could not be treated similarly to the other tenant or why the construction could not be executed without disturbing the petitioner's possession. The Court held that these issues require deeper examination to determine the bona fides of the eviction claim. The key principle established is that where a landlord seeks eviction for reconstruction, the court must scrutinize whether the eviction is genuinely necessary for the proposed construction or if it is a pretext, particularly when similar tenants are not subjected to eviction.
- Whether an eviction for reconstruction is valid if the landlord fails to demonstrate that the construction cannot be completed without evicting the tenant?
- Does the selective eviction of one tenant while leaving a contiguous tenant undisturbed raise a presumption of lack of good faith in a reconstruction claim?
- Is a landlord required to prove that the specific area occupied by a tenant is essential for the proposed reconstruction to justify eviction?
ORDER
1. MUHAMMAD AFZAL ZULLAH, CJ.--- Leave to appeal has been sought by a tenant against the dismissal by the 1-sigh Court, of his Constitutional (Writ) petition which had arisen out of order of eviction passed against him on the ground of reconstruction pleaded by the respondent/landlord's side.
2. Learned counsel, inter alia, contended that intended reconstruction being of Bala khana which is of two shops; one with the petitioner and the other. With Shamas-ul-Wahab another tenant, only the eviction of the petitioner was sought. The precise argument being that if the Bala Khana on the 2 shops could be reconstructed without disturbing one tenant, the respondent/landlord has not shown that the construction above the shop occupied by the petitioner could not be done without evicting him. In the alternative he has contended that in the peculiar circumstances of this case the petitioner is occupying such shop which is very big in area that the construction above it can be easily started and completed in such a manner so as to void petitioner's eviction. Accordingly, his further argument is that the reconstruction of the Bala Khana and the eviction of the petitioner for that reason is not being sought by the landlord in good faith.
3. Learned counsel for the respondent in reply contended that the lack of good faith does not arise in this case. The relationship between the parties has been such that on earlier similar occasions also the landlord extended the petitioner's tenancy. When questioned as to why in case the relationship has been so good, the petitioner cannot be given the same treatment as was given to the tenant of the contiguous shop; namely, Shamas-ul-Wahab and in any case why the construction should not be done by the landlord without disturbing the petitioner. The learned counsel stated that he cannot answer this question without consulting his client, for which purpose he sought time. In the meanwhile he could not meet these points adequately, accept his assertion that the shop in dispute occupied by the petitioner would also require reconstruction. This and other questions raised in this petition require examination. Leave to appeal is granted.
4. Security Rs.5,000.
5. The appeal shall be prepared on present record with direction to the parties to file all those documents which shall be necessary for disposal thereof.
6. The petitioner shall implead Shamas-ul-Wahab as a party in this case. It is stated that an Advocate having been appointed as a commission gave such a report after inspection of the spot which, as argued, supports the petitioner's contention. It would be in the interest of justice to ask the said learned Advocate who acted as commission to appear and assist the Court at the time of the hearing of appeal. Expenses for his appearance shall be borne by both the parties in equal shares. Stay to continue.