Judgment Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. S – 654 of 2011

Petitioner : Sultanul Uloom through

Mr. Moin Azhar Siddiqui Advocate.

RespondentNo.1 : Anis-ur-Rehman through

Mr. Javaid Musarrat Advocate.

Respondent No.2 : V^th Additional District Judge Karachi East.

Dates of hearing : 21.01.2019, 29.01.2019, 14.02.2019 & 15.04.2019.

J U D G M E N T

NADEEM AKHTAR, J. – Rent Case No.457/2004 filed by the petitioner / landlord for eviction of respondent No.1 / tenant from Shop Nos.10 and 10-A measuring 109.7 sq. ft., constructed on Plot No.262-263, Hyderabad Colony, Bahadur Yar Jang Road, Karachi (‘demised premises’), on the grounds of personal need and reconstruction was allowed by the learned Rent Controller on both the said grounds vide order dated 23.07.2009. In First Rent Appeal No.189/2009 filed by respondent No.1, the above order of the learned Rent Controller was set aside by the learned appellate Court vide judgment dated 31.03.2011, however, the order of eviction of respondent No.1 was maintained, but with directions to the petitioner to demolish the building comprising the demised premises within three months, to erect the new building with shops on ground floor within one year and to hand over possession of new shops to respondent No.1. It was further directed by the appellate Court that in case the petitioner fails to demolish the building within the stipulated period, respondent No.1 shall be entitled to possession of demised premises under Sub-Section (3) of Section 15 of the Sindh Rented Premises Ordinance, 1979, (‘the Ordinance’). The above judgment dated 31.03.2011 of the learned appellate Court has been impugned by the petitioner through this Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

2. The main questions involved in the present petition are (A) after upholding the eviction order passed by the learned Rent Controller on both the grounds, whether the learned appellate Court was justified in giving such directions to the petitioner which were contrary to Sub-Section (3) of Section 15 of the Ordinance ; and, (B) if the landlord seeks eviction of his tenant on both the grounds of reconstruction and personal need and the need is of such nature that the tenant cannot be accommodated in the newly constructed / erected building, whether the tenant would still be entitled to seek restoration of possession of the rented premises under Sub-Sections (3) and/or (4) of Section 15 of the Ordinance.

3. Before the Rent Controller it was the case of the petitioner / landlord that it was a society registered with the specific purpose of promoting the aims and objects of education ; it was the owner of the land on which the demised premises as well as several other shops were situated ; the petitioner-society was established to construct ‘Usmania Hall’ for publishing books and magazines and for translating books in Urdu language and also to undertake other literary and educational objects ; for the above purpose the old structure had to be demolished and a new building had to be constructed for which the entire land was required ; the plan for the new building had been approved by the competent authority ; several verbal and written requests had been made to respondent No.1 to vacate the demised premises so that the old building could be demolished and the new building could be constructed and a legal notice in this behalf was also sent to him ; and, despite all the above, respondent No.1 had failed to vacate the demised premises. In the above background, eviction application was filed by the petitioner against respondent No.1 on the grounds of personal need and reconstruction.

4. The eviction application was contested by respondent No.1 by filing written statement wherein it was pleaded by him that the existing building is in good condition and there was no need to demolish it ; the petitioner had sufficient space for its alleged need ; he had never received any notice from the petitioner to vacate the demised premises ; approved plan of the proposed construction had not been filed by the petitioner ; he was enjoying possession of the demised premises since last 40 years and had never committed default ; and, he did not have any other place to shift his business.

5. In view of the divergent pleadings of the parties, two points for determination were framed by the Rent Controller viz. “(1) Whether applicants require premises in question i.e. shops No.10 & 10-A for personal bonafide need to reconstruct a new building to promote their aims and objects ? and (2) What should the order be ?”. Thereafter, evidence was led by the parties. The petitioner produced its Secretary as its witness who produced relevant documents, whereafter he was cross-examined by the respondent No.1’s counsel ; and, respondent No.1 examined himself who was also cross-examined by the petitioner’s counsel. After examining the material on record and hearing respective contentions of the parties, eviction application was allowed by the Rent Controller, but his order was set aside by the appellate Court through the impugned judgment in the terms noted above.

6. I have heard learned counsel for the parties at length and with their able assistance have cautiously examined the material available on record. Record shows that the averments made and the grounds urged by the petitioner in its eviction application with regard to reconstruction and its personal need had throughout remained consistent and the same were further reiterated by its witness in his affidavit-in-evidence, which could not be shaken in his cross-examination. On the contrary, there was a clear contradiction in the statements made on oath by respondent No.1 in his written statement and evidence as he had categorically admitted in his cross-examination that it was a fact that the petitioner intended to construct a new building and for this purpose he was called upon by the petitioner to vacate the demised premises ; he had also received notice dated 31.01.2003 as well as a legal notice in this behalf from the petitioner, but he did not reply to the same nor did he vacate the demised premises ; and, he did not file any proof regarding the allegation made by him in paragraph 4 of his affidavit-in-evidence that the petitioner had sufficient space to fulfill its aims and objects. In the eviction order dated 23.07.2009 passed by the learned Rent Controller, the above admissions made by respondent No.1 were noticed, and it was also noticed that the statements and evidence of the petitioner had remained unshaken ; and, it was held that the personal requirement pleaded by the petitioner for constructing a new building to provide and promote educational facilities to the public, was genuine and bonafide and since the petitioner-society had been established specifically for such purpose, it could not be deprived of such need / requirement. In view of the above findings, the eviction application was allowed by the learned Rent Controller on both the grounds of personal need and reconstruction.

7. Perusal of the impugned judgment shows that the two points for determination framed by the learned appellate Court were “(1) Whether the respondent requires demised shops for personal bonafide use to reconstruct new building ? and (2) Whether the case of the appellant falls within the ambit of Section 15(2)(vi)(3 & 4) of SRPO 1979 ?”. By observing in the impugned judgment that construction of a new building by the petitioner had not been denied by respondent No.1, it was held by the learned appellate Court that respondent No.1 himself had produced the approved plan of the new building, therefore, he himself had proven the first point for determination regarding personal need and reconstruction. Despite the above finding, the order of eviction passed by the learned Rent Controller was set aside by the learned appellate Court by directing the petitioner to demolish the existing building within three months, to erect the new building with shops on ground floor within one year and to hand over possession of new shops to respondent No.1. In my humble opinion, the above directions given by the learned appellate Court to the petitioner were unjustified and uncalled for ; firstly, as the petitioner was legally bound to construct the new building strictly in accordance with the building plan approved by the competent authority and not according to the need or requirement of respondent No.1 and as such it could not be compelled to construct a building having shops on the ground floor ; secondly, in case of failure on the part of the petitioner to demolish the old building or to construct the new building within the time prescribed by the Ordinance, respondent No.1 would have become entitled to seek his remedy under Sub-Section (3) of Section 15 of the Ordinance, and in such an event the law would have taken its own course ; and lastly, the impugned directions to the petitioner to demolish the existing building within three months, to construct the new building within one year, and to handover the possession of the premises in the new building to respondent No.1, are contrary to the provisions of Subsection (3) of Section 15 of the Ordinance, which reads as under :

“(3) Where the landlord who has obtained the possession of the premises for the purpose of reconstruction of the building or erection of a new building, shall demolish the existing building within six months of the taking over of the possession of the premises or, as the case may be, commence the erection of the new building within two years of the taking over of the possession of the premises, and in case the landlord fails to demolish the building as aforesaid, the tenant shall be entitled to be put into possession of the premises and for the purpose he may apply to the Controller for an order in that behalf.”

8. My above view is fortified by Ghulam Nabi V/S Mushtaq Ahmed, PLD 1980 S.C. 206 and Abdul Bari V/S Khadim Hussain, PLD 1978 S.C. 78. In Ghulam Nabi (supra) the main questions under consideration were that the landlord has to prove that his requirement is reasonable and bonafide, and while reconstructing a building whether or not the landlord has to keep in view the needs of the evicted tenant because the tenant was entitled to seek restoration of possession of an appropriate area in the reconstructed building. It was held inter alia by the Hon’ble Supreme Court that if the effect of reconstruction is substantially to develop and improve the property, the landlord’s requirement would be bonafide and reasonable ; if the legislature had intended to relate the reconstruction of building to the tenant’s requirements, it would have enacted accordingly, but it has not ; approval of the landlord’s reconstruction plan could take many years, therefore, the plea that the landlord’s rebuilding plan must conform to his tenant’s requirements would lead to absurdity ; as the tenant can terminate his lease unilaterally, it would be extremely unjust and unreasonable if the landlord’s right to rebuild and develop his property is subjected to the tenant’s veto ; and, injustice is not to be lightly attributed to the legislature. In Abdul Bari (supra), the Hon’ble Supreme Court was pleased to hold inter alia that the law does not impose any restriction or limitation as to the nature and purpose of the new building to be constructed in place of the old building ; the ground of reconstruction does not limit the same to reconstruction of a building of the same type and character or for the same purpose ; and, the right of the tenant to seek restoration of possession would come into play if the reconstructed building is of the same type or character and is suitable for the same use as was the old building.

9. It appears that the learned appellate Court failed to appreciate that the petitioner had sought eviction of respondent No.1 not only on the ground of reconstruction, but also on the ground of personal need, although the learned appellate Court itself had framed a specific point for determination in respect of both the said grounds. It was the case of the petitioner that it was a society registered with the specific purpose of promoting the aims and objectives of education and to construct ‘Usmania Hall’ for publishing books and magazines and for translating books in Urdu language and also to undertake other literary and educational objects ; and, in order to fulfill its above aims and objects, a new building was required to be constructed in place of the old one for which the entire land owned by the petitioner was required. In view of Ghulam Nabi and Abdul Bari (supra), the petitioner was not obliged to construct the new building according to the need, requirement or desire of respondent No.1, especially when possession of the demised premises was sought by the petitioner also on the ground of personal need with the above mentioned specific purpose. Keeping in view the aims and objectives of the petitioner and its purpose and requirement for constructing the new building, which are not disputed and findings in respect whereof have attained finality long ago, it would be unjust to allow any kind of commercial business, activity or shop in the new building to be constructed for the sole purpose of promotion of education and other literary objects.

10. It may be noted that if the landlord seeks eviction of his tenant on the sole ground of reconstruction, the tenant would be entitled to the benefit of Sub-Sections (3) and (4) of Section 15 of the Ordinance, which provide that after obtaining possession of the rented premises on the grounds of reconstruction or erection of a new building if the landlord does not demolish the old building or does not commence erection of the new building within the period stipulated in Sub-Section (3) ibid, the tenant shall be entitled to make an application to the Rent Controller to put him in possession of the premises ; or where the new building is constructed by the landlord, the tenant may apply to the Rent Controller before completion of the new building and its occupation by another person to put him in possession of such area in the new building not exceeding the area that was in his possession in the old building. Likewise, under Section 15-A of the Ordinance if possession of the rented premises is taken over from the tenant in a case where his eviction was sought by the landlord on the ground of personal use and occupation and the landlord, within one year of such taking over, relets the premises to any person other than the tenant or puts it to a use other than his personal use, the landlord shall be punishable with fine as prescribed in Clause (i) of the said Section 15-A, and on the tenant’s application to the Rent Controller his possession in respect of the premises shall be restored under Clause (ii) of the said Section 15-A.

11. In the above context, it may be observed that if the landlord wants to reconstruct the rented premises or to erect a new building in place thereof, there could be two scenarios viz. after reconstruction or erection of the new building he intends to relet or sell the same, or he wants the same for his own personal use and occupation. The former case relates to a situation where the landlord requires the rented premises only for the purpose of reconstruction or erection of a new building to develop and improve the property and such would be his only ground for seeking eviction of his tenant ; and, the latter case deals with a situation where the landlord requires the rented premises for construction or erection of such building that would be required by him only for his own personal use and occupation, and in such an event he would seek eviction of his tenant on both the grounds of reconstruction and personal use. I am of the considered view that in the former case, the tenant would be entitled to have the benefit of Sub-Sections (3) and (4) of Section 15 of the Ordinance by seeking restoration of possession as provided therein ; whereas, in the latter case the tenant may not be entitled to the benefit of restoration of possession as the entire purpose of seeking possession of rented premises, reconstruction thereof or erection of new building in place thereof for the personal use and occupation of the landlord, would be defeated. To take an example, if the landlord seeks eviction of his tenant from a residential bungalow on the ground that he intends to construct a new bungalow in its place for his use and occupation and that of his family members, it would be absurd if after construction of the new bungalow possession thereof is restored / handed over to the tenant. Therefore, where the ground of reconstruction is coupled with the personal need of the landlord and the need is of such nature that the tenant cannot be accommodated in the newly constructed / erected building, the tenant will not be entitled to seek restoration of possession of the rented premises under Sub-Sections (3) and/or (4) of Section 15 of the Ordinance. This view is fortified by Abdul Bari (supra) wherein the Hon’ble Supreme Court was pleased to hold that the right of the tenant to seek restoration of possession would come into play if the reconstructed building is of the same type or character and is suitable for the same use as was the old building. Needless to say that the landlord shall have to prove that his personal need is reasonable, genuine and bonafide. It would not be out of place to mention here that it was held by the Hon’ble Supreme Court in Ghulam Nabi and Abdul Bari (supra) that eviction of a tenant on both the grounds of personal requirement and reconstruction in same proceedings would not be illegal as the said two grounds are not mutually destructive.

12. It was pointed out during the course of hearing that eviction applications in respect of all other tenements had also been filed by the petitioner on the same grounds which had been allowed by the Rent Controller, which fact was not disputed by learned counsel for respondent No.1. It is an admitted position that possession of the demised premises was taken over from respondent No.1 in pursuance of the ejectment order passed by the learned Rent Controller. It is also an admitted position that the old building is still existing as the same could not be demolished in view of other litigation and an ad-interim injunction order passed by this Court at its original side in a Suit. It was contended by learned counsel for respondent No.1 that since the petitioner did not demolish the old building, respondent No.1 became entitled to restoration of possession of the demised premises. With due respect to the learned counsel, I am unable to agree with him ; firstly, as eviction of respondent No.1 was ordered by the learned Rent Controller not only on the ground of reconstruction, but also on the ground of personal need ; and secondly, in view of the law laid down by the Hon’ble Supreme Court in Iqbal Book Depot and others V/S Khatib Ahmed and 6 others, 2001 SCMR 1197, wherein it was held in a similar situation that even in case of non-construction of the building the same could have been evicted on the ground of personal bonafide use.

13. In view of the above discussion, the impugned judgment of the learned appellate Court is hereby set aside and the eviction order passed by the learned Rent Controller is restored. The petition is allowed in the above terms, however, with no order as to costs.

_______________

J U D G E