Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. AKHTAR SULTANA VS Respondent: DR. ABDUR RAUF NAGI
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah Title: Mst. AKHTAR SULTANA vs DR. ABDUR RAUF NAGI Case No.: S. A. O. No. 873 of 1976 Date of Judgment:1977-09-25 Reported As: PLD 1978 Lahore 347 Result: Appeal allowed
JUDGMENT
JUDGMENT This second appeal has been filed by a landlady under section 15 (4) of the West Pakistan Urban (tent Restriction Ordinance, 1959 to call in question the dismissal of her application for eviction of the respondent (tenant) on grounds of reconstruction, her son's requirement and damage to the property. 2. The building in dispute is in the ground-floor of a residential house fn the city of Gujranwala. It is stated that tire appellant who is a widow rented it out to the respondent, a practising doctor, after the death of her husband in 1965 for the purpose of sunning a clinic. But the rent note Exh. P. 2 executed by the respondent does not show that initially the building was rented out for the aforesaid purpose. It is, however, admitted position that if not soon after the commencement of tenancy, now for a considerable time extending over a period of a decade, the respondent has used the building as a clinic. According to his learned counsel, he has installed two X-Ray plants in addition to an E. C. G. Apparatus. It is also an admitted position that he has converted the building in such a manner as to use it for his clinic. According to his learned counsel, a verandah is being used by dividing it with a wall as accommodation for indoor patients. It is also in evidence that a latrine, a dark room and some other structures have been added by the respondent for the purpose of his own convenience as also of his patients. 3. The appellant's case is that her husband was using these very premises as a workshop for his metal business, It appears that after his death the business could not be run by the widow--her son, tine attorney. It appears from the age given in his deposition, would be then a minor. He obtained employment in the local municipality as a clerk and continues to
---
## Page 2
hold the same position. It is further claimed that the son would, if the premises are vacated, start his father's business therein. The requirement of the appellant for the occupation of her son, it is contended, is in good faith. Apart from this ground, the appellant's case is that the building is required for reconstruction--may be, for making it more suitable for her son's need as also, as it appears from the relevant plan including the sanctioned one, for the removal of the structures erected by the respondent and, of course, for effecting improvement. The sanctioned plan for reconstruction Exh. P. 3 indicates that some of the works therein would be of major dimensions involving considerable expenses. The appellant's claim is that the building is required for reconstruction not only reasonably but also in good faith. The other ground is with regard to the damage to the property. The appellant's case Is that the respondent not only made major structural changes in the building deforming its original plan but also made several ditches near the walls with the purported intention of planting flowers and plants therein, but care has not been taken to protect the walls. The ditches have been left unattended, with the result that water having seeped through them has injuriously affected the walls. Thus, it is claimed that the value and utility of the building bas been materially impaired by the acts of the respondent. 4. On the other hand, it has been contended on behalf of the respondent that there being concurrent findings on all the three issues, this Court should not interfere in second appeal ; that the plan for reconstruction Exh, P-3 not having been formally proved in accordance with the law of evidence, it cannot be read as evidence ; that the reconstruction sought to, be effected being partial and not of the whole of the building, it does not fall within the ambit of "reconstruction" envisaged by section 13 (2) (PI) a that the appellant has not been able to prove bona fides with regard to requirement of her son because he has not given up his job as a clerk ; that while appreciating the evidence in this behalf as also with regard to the question of damage, preference should be given to the deposition of the respondent who is more respectable person ; that no independent witness not even an architect mentioned in the deposition of the appellant's attorney has been procured to substantiate the plea of the damage to the property nor a complaint was made to the concerned authorities regarding alleged damage to the property ; that if there would have been any seepage of water causing harm to the walls of the building, the same would have been included for reconstruction in the plan Eah. P. 3 ; that the installation of a metal works in the building would be more injurious to it-offer was made during the hearing of the appeal in this behalf for proper Inspection by a competent person to discover whether the alleged damage had been caused to the property ; that in case the respondent is evicted, he will not only lose goodwill in the building in dispute, it will also cause inconvenience to his patients ; and lastly, that the application for eviction i9 motivated on account of desire of she appellant to enhance rent as also on account of enmity which has resulted into extensive criminal litigation between, the parties. 5. It is true that the doctor has made considerable structural changes affecting the entire plan of the ground-floor so as to suit the needs of his clinic. So much so that the clinic is being used as a place for indoor patients. Latrine facility has also been provided. As admitted by the learned counsel, two X-Ray plants have been installer'. It is common knowledge that installation of even one X-Ray plant needs structural construction particularly for foundation purposes. The comparative study of the two site plane prepared side by side on the same sheet and attached with the origins: eviction application--pare. 3 (v) (plan not denied in para. 3 of the written statement) shows that the respondent constructed new units and wails adding a bathroom, described as ghusalkhana, on one open side of the building and a lattice, described as such, in almost the middle of the constructed portion and in front of a deohri closing its approach door to the inner side. A store, latrine, dark room and a room involving construction of a considerable length of alts with provision of several doors have biers carved out of three spaces described in the original plan as verandahs. Seven ditches have been shown in the courtyard and a partitioning
---
## Page 3
wall has been erected in the middle of what is described in the original plan as a verandah which, as already mentioned, is being used by the respondent as residential accommodation for indoor patients. Although there is nor reason to doubt the statement made by the appellant's attorney that some damage has been caused to the walls on account of the ditches, there is nothing to show that the said damage has "materially" impaired the value of the building. I agree with the learned counsel for the respondent that in order to prove material damage to the building, more evidence was needed in this behalf, Similarly, although there is no reason to disbelieve the statement of the appellant---s attorney with regard to the major structural changes made in the building by the respondent including construction of a latrine directly in front of the deohri closing its approach to ail the inner portions of the building: and this also stands supported by the composite site plan attached with the eviction application regarding which clear denial was not made an the corresponding para. Of tire written statement ; there is nothing on the record to show that this major construction by the respondent has, on account of erection of a latrine at a place which is undoubtedly odd, caused such a damage to the property which has "materially" impaired the "value" of the property. The addition of the material to the house on the other hand, even if it is treated as a mulba, instead of enhancing monetarily, the value of the building by a small percentage, cannot be said to have reduced it. But the same cannot be sold with regard to utility of the building. A tenant can be ejected on either of the two grounds-when he materially impairs the 'value', or materially impairs the 'utility' of the building. In this case, when considering the admitted structural changes made by the respondent ire the building and while having a bare look at the comparative site plans, it becomes absolutely clear that the utility of the building: as it existed at the time of renting out, has undoubtedly been materially impaired. No one can use any of the inner parts of the building, from the deohri side. A latrine has blocked the connecting door. Three verandahs have been cut into small spaces. The utility of another verandah has been rendered into nill by construction of several small service units like darts room, latrine, etc. The utility of yet another large verandah, which most have been provided in the building for open use, has been materially affected by converting it into accommodation for resident patients. A small courtyard, which must have had considerable utility when initially provided in such a small house, has lost all utility after it bas been infested with seven ditches and the provision of a bath room in corner thereof; which otherwise too has practically closed one door of a room on the western side which opened in the courtyard. One gate on the southern side also appears to have been closed and some other conversion has been made to provide an almirah. The structure in the building under lease with the respondent has been so changed as to render it beyond recognition. It is impossible to hold that the acts of the respondent have not materially impaired the utility. The word "utility" has been used in clause (iii) of subsection (2) of section 13 in its general sense for usefulness and profitableness. Although the present of the building for the purpose of a clinic might be very useful for a particular tenant who is d practicing doctor, its general usefulness, i.e. Utility for all others including owners has been materially impaired. This, supposition finds support in this cane from the fact that in the proposed reconstruction plan, almost all structures constructed by the respondent are intended to be entirely removed by the owner. The learned lower appellate Court and the learned Rent Controller did not pay any attention to the composite site plan providing comparative study nor the admitted.' facts with regard to the changes effected by the doctor. They have not only misread the evidence in this behalf but have also ignored material parts thereof, I, therefore, reverse the finding on Issue No. 3 and hold that the respondent has materially impaired the utility of the building and is thus liable to be evicted on this ground alone. 6. The next question to bit determined is whether the appellant did not require the building far reconstruction reasonably and in good faith and as to whether necessary sanction for reconstruction had been obtained. Learned counsel for the respondent raised a legal objection
---
## Page 4
that the original plan for reconstruction hearing the original sanction of the authorities produced from the appellant side has not been prove' in accordance with law. He has relied on Mian Taj Din v. Messrs Royal Engineering Works (PLD 1967 Lah. 718). No objection was raised before the learned Controller nor before the learned lower appellate Court with regard to the proof of admissibility of the sanctioned plan Exhibited as P. 3. The appellant's attorney, namely, It son is himself an employee of the Municipal Committee. He produced and proved the original plan for reconstruction Exh P.3. Mention of this very plan was made in parts. 4 of the eviction application. The fact that the plan had beer sanctioned was not disputed in the corresponding para. 4 of the written statement-instead, plea was taken that the plan in question for reconstruction was only a contrivance for getting the building vacated from the respondent. Apart from this admission in the written statement--- it cannot be ignored that no objection was raised with regard to the admissibility/proof of the plan at any other stage. Their Lordships of the Supreme Court were pleased to hold in Javaid Iqbal v. Rana Muzaffar Khan (1976 SC MR 229) that the Evidence Act in terms does not apply to the proceedings under the Rent Restriction Ordinance. In view of what is stated above, it is not necessary to discuss the ruling in the case of Mian Taj Din cited by the learned counsel. However, it is observed in pare. 6 thereof at page 721 of the report that "the plan sanctioned by the Municipal Committee/Corporation is also a public document since it is a record under the Municipal Administration Ordinance, as is clear from section 77 (5) thereof, which reads as follows;--- "A Municipal Committee may sanction a site plan or a building plan subject to such modifications or terms as may be specified in the order of sanction." The sanction of site or building plan has, therefore, to be retained by the Municipal Committee as a matter of record for future reference and for taking action under section 78, if necessary. A copy of this document is always available from the Municipal Corporation on payment of the requisite fee". In the present case, it appears that one original might have been retained by the Municipal Committee but another original plan which bears the endorsement of sanction and original signatures thereon of the sanctioning authority (Exh. P.3) was produced by the appellant. Thus, Exh. P. 3 would be covered by the above-quoted observations. That being according to section 127 of the Municipal Administration Ordinance read with Article 95 of the Basic Democracies Order, Exh. P. 3 being an authentic document and record of the building plan sanctioned by the Municipal Committee shall be deemed to be a public document and that it shall be deemed to be genuine unless contrary is proved. In the light of what has been discussed above, there is no force in the technical objection raised by the learned counsel for tire respondent. 7. The learned lower appellate Court rightly noticed that the learned Controller did not consider "the implication of site plan sand also the penal clause" provided in subsection (5) of section 13 of the Ordinance. The learned lower appellate Court was also right in noticing the observations of their Lordships of the Supreme Court in Messrs Amir Din Allah Ditta v. Seth Adamji Abdullah and others (1969 SCMR 131). I, however, do not agree with the learned lower appellate Court's reasoning that it was incumbent upon the appellant "to prove that she wanted to reconstruct the building after demolishing the same". Learned counsel for the respondent has also taken the same position that unless the intention is to demolish the entire building in question, the law contained in section 13 (2) (vi) would not be satisfied. The provision relied upon reads as follows;---- "13.--(2) (vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, tv4unlcipal Committee or Town Committee for the area where such building or rented land is situated."
---
## Page 5
The building on rent with the respondent is in the grand-floor portion of a bigger building having first and second floors. There is considerable accommodation on the first floor. On the second floor, there are two rooms and a projection. It cannot be denied that if the building in question, i.e. The ground-floor is demolished in its entirety, the first and the second floors would also, in the said process, be demolished. The question arises whether the law required that the reconstruction must always, in every case, be of the entire building after its entire demolition or it depends upon the circumstances ref the case whether the demolition or reconstruction of one or more portions of the building might be enough. 8. Learned counsel for the appellant, to start with, also thought that reconstruction would mean the demolition and reconstruction of the building in its entirety, but after seeking time for further study he relying on (Velivela) Vekanta Sivayya v. Emperor (AIR 1927 Mad. 442) and Percy E. Cadle & Co. Ltd. v. Dacmarch Properties, Ltd. ((1957) All E R 148), contended that there is need only for substantial reconstruction and not for entire demolition and reconstruction. In fact, he took out this Case-law from Prom's Judicial Dictionary (1964) Vol, IV and Aiyer's Manual of Law Terms and Phrases (1974) 7th Edition. On the other hand, learned counsel for the respondent cited Muhammad Gul v. K. B. Mian Feroze Shah (PLD 1964 Pesh. 11), Haji Ghulam Hussain and another v. Muhammad RAM and others (PLD 1965 Kar, 468), Syed Shin Gul v. Haji Abdul Majid (PLD 1968 Quetta 45), Manzur Ahmad and 8 others v. Muhammad Hanif sail 2 others (PLD 1970 Lah. 391) andHussain and others v. Fancy Foundation (PLD1975SC1) to contend that the word reconstruction" would mean "rebuild'' and would imply the entire demolition and reconstruction of the rented building. 9. Excepting one, i.e., the case of Manzur Ahmad, none of the rulings cited from the respondent side has any bearing on the controversy involved in this case. The question as to what is the meaning and connotation of ''requirement" for "reconstruction" of a "building" was not considered therein. As the important questions discussed in the cases of Muhammad Gul, Haji Ghulam Hussain, Syed Shin Gul and Hassan and others were other than the aforenoted controversy, therefore, these words as used in clause (vi) of subsection (PLD 1965 Kar. 458) of section 13 were reproduced In the rulings as they exist in the statute. An expression used in the case of Muhammad Gul, namely that an old shop was being demolished and new shops were being built and thus, the shop could not be "constructed unless it is demolished" has to be read in the context of the language used in unamended clause (vi) as also the other observation in the ruling. It is not only reconstruction but also replacement of building or erection of other buildings, which were kept in view in the said case. The Supreme Court ruling in the case of Hassan and others is mainly on the point of the effect of the amendment in clause (vi). Both the unamended and amended clauses were reproduced in the judgment for the purpose of deciding the main question regarding retrospectively. The observations with regard to demolition of the existing premises and reconstruction of multi- storeyed building were in other context and not for the purpose of laying down the scope of these words. Same comment would apply to the two Karachi and Quetta rulings. The use of another expression "now building" after demolition of the old one in the Quetta case is also in the context of the language used in the unamended clause (vi) as it applied in that case, and is of no help to the respondent in this case. 10. Although the ruling in the Lahore case of Manzur Ahmad also relates to the unameaded clause (vi) which, as would be demonstrated, is materially different from the amended clause, for the purpose of controversy involved in this case 1 yet the discussion on the principles relating to divisibility of tenancy, definition of the word "building" and the scope of the word "reconstruction" is, as would be presently shows, of considerable importance and relevance; in the present case. It is necessary to reproduce" the unamended clause (vi) and compare it with the amended clause; "Section 13----------------
---
## Page 6
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf, if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that----- (prior to amendment)(as amended) (vi) the landlord intends to demolish (vi) the building or rented land is the building for constructing areasonably and in good faith a now building on the samerequired by the landlord for site and has already obtainedreconstruction or erection of a the necessary sanction for thebuilding on the site, and the said construction from the Im-landlord has obtained the provement Trust or the Munici-necessary sanction for the said p.I Corporation, Muncipslity,reconstruction or erection from Municipal Committee or No.1-the Town Improvement Trust, fled Area Committee of theMunicipal Corporation, Muni- area where such building iscipal Committee or Town Com- situated.Mittee for the area where such building or rented land is situ- ated. the Controller may make an order directing the tenant to pat the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application; It is also essential to reproduce the definition of the word "building" in section 2 (a). It reads-------- ----- "(a) 'building' means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture lot therewith, but does not include a roam in a "Jarai", hotel, hostel or boarding house ;" 11. 1t would be seen that the expression "for constructing a new building" used in the unamended clause (vi) has not been repealed in the amended clause. Instead, the word "reconstruction" bas been used in this context and the word' "demolish" and "new" have notably boon omitted. This leads to the inference that the expressions used in the unamended clause were liable to be interpreted as if ejectment could not take place under this clause (i) unless the building was to be completely demolished without leaving its trace ; and further, (it) till a new building was lobe constructed on the same site. This, it appears, was not the intention of the Legislature. Therefore, the law was amended so as to provide a more reasonable and elastic basis for eviction on the ground in clause (VI). Instead of demolition of old building and construction of a new building, only the word "reconstruction"-as it was generally understood to include the whole or part and was also understood in the English law (which was, by and large, followed in enacting several provisions of our urban tenancy laws) was introduced. This supposition gets strengthened from another change also. In the unsmended clause, the condition of demolition and construction of a new building was restricted to the interest of the landlord and the satisfaction of the provision yeas entirely left to the landlord's "intention". It was not necessary for the Controller to give objective findings with regard to reasonableness or good faith on the part of the landlord. In the amended clause however, while expanding the scope of the provision to more situations regarding reconstruction, the Controller was given power tea scrutinise the bona fides and reasonableness of the landlord's claim, it is also important to note that while under the unamended clause, tics intention of the landlord was all important to be considered, is the amended clause the intention alone was not considered enough. It was changed into '"requirement" in which, in addition to the intention and desire of the
---
## Page 7
landlord, the Controller is necessarily to give objective judgment on the question of the requirement being bona fide and reasonable. 12. As a corollary of the foregoing discussion, it is necessary to interpret the word "required" in its proper context, as used in the amended clause. Two shades of its meaning have to be properly explored : One, requirement in the sense of the need of the landlord for reconstructed. This need might develop for improvement/change in the property for structural purposes and/or for modernisation. It might be motivated to increase the utility and value of the property and it can also be for the purpose of better utilisation of investment. This aspect of requirement is referable exclusively to the need of the landlord vis-a-vis the building itself. 13ut the other aspect relates to the tenant occupying the building. Cases can be visualised where a landlord's requirement might be to reconstruct the building but it might not be necessary for him, or he may not desire, to evict the tenant for this purpose i.e., reconstruction. In such a case, although there might be a need for reconstruction yet it would not be the requirement of the landlord to evict the tenant. Thus, in this second sense,…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.