Haji Hafiz Ullah and others Vs Sardar Hussain and others

PE^SHAWAR HIGH URT. PE.SHA\MAR

IJUDICI.AL DEPARTMENTI

'Writ Paition No. 582P IW)A" Haii IIafiz Lilhh and othcrg w Sarrrlar Hursain and ofh€rs

PRF^SE[.IT

For Petitiouem: Muhammad A-li, Advocate For respoudeuts M/S. Abid Ayub and Saad ul Mabood Khattak, Advocates.

Date of heariug: 05.05.202t

.IUDGMENT

MLIHAMMAD NAEEXTI AI{VIAR J.- This single judgmeut shall also decide Im1t Dehhon No. 14 tifled Sardar Hussain vB. Ilaii I{afiz tlllah as both the petitions are the ouicome of the applicatiou submitted by dre petitiouers before the Reut Controller whereby t}e petitioners were seeking ejectrner)t of the respondent No. I ol' tlre instalt petitiou ou the ground of (i) defarlt ilr paymelt of monthly rert, (ii) default iu payrneut of mouthly utility Gas consumption clnrges, (ii) boua- fide persoual need, (iv) coustructiou of the shopping rnalyplaza by demolishiug the whole old Faisal market shop, includilrg dre suit shop, with a recovery of moudrly rent at the rate of Rs. 45000/- per month, recovery of Rs. 2,95,340/- outstanding against the nou-pa]rynents of the utility charges and gralting direction to respoudents 2 & 3 for suspensiou of gas corurection to Afghan Hujra hotel and renditiory'setflement of ac.c.ounts in respect of previous gas consumption on the plea that they are owllers of tlrc Faisal market" situated at Malakand Chowk, uew Bus Stand, Mardan, Tehsil ald Disu'ict Mardan, wherefrom shops, which were halded over to respoudent No,l, were being used as hotel, lurowu as Al'ghau Hujra ou palmcut of monthly rent of Rs. 45,000/- per month by providing all basis uecessities i.e., supply of gas, electricity erc, but dre respondeut No.1 (tenant) has uot paid the montlrly rent with efl'ect from Septembea 2018 till April, 2019, despite his request aud issuance of written notice seut uuder registered A,/D card and also it was the duty of the teuant uot ouly to pay the monthly rerrt but also to deposit the amorurt of t}e water charges, gas, electricity and telephone bills

based on facility provided and consumed but he defaulted. The application was resisted by respondeut No,l (teuant) on differeut legal and lacnral objections with a plea that he has paid Rs. 14,00000/- (lburteeu lac) as surety to the petitiouer but also, he himself iustalled the electricity ald gas meter and was payirU utility bills regularly ald, lastly, he averred that he has made coustructiory'improved the property by spending huge amouu! thus, tlre ground taken by the petitiouers (laudlords) were frivolous and baseless. He requested for dismissal of the applicatiou. The parties were directed to produce evidence to prove their respective couteutions, which was, accordingly, produced by the parties. Al'ter completion of the evidence and hearirg of the parties, vide judgmeut dated 03.06.2023, leamed Civil Judee-XII/Rent Controller, disposed of the ejectment applicatiou in the lbllowirg temrs: - "The tenaut "hrtl r€trlro vacaff possession of the suit shop by or before the orpiry of 30 d"yr. The landlord, after dedrrction of the utility dues he has paid and proved under issue No. 3, i.e., Rs, 2,95,340/-, retrm the residue of the secuity deposil ie., Rs.

14,00,000/-. He slull also pay aD. anoutrt of Rs. 1470,000/- as reimbuneoent for structral improvemenb made to the tenement with his consent by the teDa[t About t]e conrovErsy surrounding the utility dues, upon conclwion of pending litigafion around the utility bills, the tenant sball ensure tlut no outstaDditrg dues are left against the prcmises for the period in rfrich it was in his occupatiotr uoder tenancy tbat fu until his eviction consequent to this ordef

2, Both the parties being aggrieved, questioned the judgment of the leamed Reut Coutroller dated 30.06.2023, tluough their separate appeals i.e., appeal O2IRCA and 4O/RCA of year 2023. The leamed appeal court tluougtr cousolidal€d judgment dated 20.11.2023 modfied the fiudings of the leamed trial court, reversed the judgmeut to the exteut of alleged security deposit of 14,0000/- and responderrt No. I was held entitled for the improvemeut but at the preseut market value of the expeuditure ircurred by him while rest of the judgment was maiutai-ued. The petitioner has questioued t}e judgment and decree of the courts below to the extent of construction allesedly made and improved the property whereas Sardar Hussaiu

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respoudeltt No.l has challeuged the order of dte ejectment tluouglr corurected writ petition 2335-P/2024, heuce, both are being disposed of tluough this single judgemeut A. Arguments heard ald record perused.

4, The ejectmeut application was based upon the ground provided under the law, i,e., default in paymeut of monthly reut, default iu paymeut of morrthly gas consumption charges and utility bills. Pertiuent to mentiotr that neither relatiouship of respondent No.l with dre petitioners nor rate of mouthly reut i.e., Rs. 45000/-per month has beeu disputed by either side. Ukewise, though the petitioners alleged default il payment of the montlrly reu! however, the record reflects that the default has not been proved to the extent of the payment o[ mont]rly rent ald this fact has been admitted by the couusel fbr the petitioners before dris court during the arguments but it is an admired fact that the amouut outstanding against t}e consumed electric.ity aud gas, amoturting to Rs. 2,95340/-, has beeu paid by the petitiouers, which was the liability of the respondent No.l in terms of sub clause (i) of second proviso to sub-section 2 of section l3 of Urban Reut Restrictiou Ordinalce of 1959 which was included in the defuritiou of"rent" aud has been proved to have been paid by the landlord (petitiouer) instead of tenant (respondeut No.l) and the uon-paymeut of utility bills during the period withiu which the reuted premises are iu possession of teuant is default especially u'hen nothirg conu"ry has beeu brought orr record by the tenant (resporrderrt No.1). Reliance is placed on the case of "WdiL vs. Muhammad usa (1994 SCIIR L200), "My!@g.

Besam vs. Mst. Shasufta" 199s SCMR 323 "Abdul Ghsfoor vs. Mst. Amtul Saeeda" (1999 SCMR 28) and"Sher Afsan vs.

Sheikh Anium lqbat' (EtD 2A!{.$g-62D. Teuant was bouud to maiutain the rented premises through payment of monthly utiliS, bills, which amount has beeu paid by the present petitiouers and the lindiugs !o this ellect were maintairred by the Ieanred appeal court. Neither this paymeut has been disputed by respoudent No.l, nor could he provide any justification for uon- pa)ryneut of the utility bills. Herrce, in view of nou-payrnent of utility bills, respondent No.l has committed defaulr Though, the

petitiolers have takeu the plea of persorral ueed, but they have uot been able to prove iL ht tlreir evideuce, even neither they could provide details of the business irteuded to be started by them uor could any particular drereof be sugested by them even before this cour! rather they have poiuted out their iltentiou to recorrsfuct tlre property after is demolition, thus, the grourd to the extent of persoual ueed has not been proved ald on this ground tlre respoudert No. I could uot be directed to vacate tlre premises,

5, Recoustruction of property is also the prerogative of the laudlord but ouce this plea is taken by the landlord, he is legally required to get the permission lrom the authority coucemed for dre purpose of recorxtructiou of the rented premises and, undeniably, in tlre instalt pe tition, uo such permissiou was brouglt ou the record, There is rro restrictiou for seekiug the evictiou of the teuant ol dre gound of recoustructiou of the demised premises subject to the conditions as provided iu sectiou 13(2)(vr) of the Ordinalce of 1959, which reads as urrder:

13(2xvi) the building or rented a 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 [Municipal Corporation, the Municipal Committee, the Town Committee or tle Provincial Urban Development Board for the area where such building or rented land is situatedl. the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller in not so satisfied he shall make an order rejecting the application: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not exceed four months in the aggregate.

It is also rrot the requiremeut o[ the law for the landlord to establish that the demised premises are in dilapidated or in dangerous couditiou because the landloxl has a riglrt to improve his property despite the building may uot be in dilapidated condition, however, sectiou l3(2)(vi) of tIrc Ordiuance of 1959 has provided a mechanism which mauifess that the building or rented laud is reasonably and in good faith required by the

landlord for reconstructiou or erectiou of a building ou the site, and the landlord has obtained necessary sauction for the said recoustruction from the coucemed authority for dre area where such building or rented land is siu.rated, Furthermore, section 13(2xvi) of drc Ordiuance of 1959 makes it obligatory for dre landlord to obtain necessary sauctiou for recoustructiou or erectiou of rrew buildirg from relevalt authorities at the time of filing of ejectiory'eviction application or even durirg is pendency but said provisiou does uot require it to be reuewed again and agaiu before startilg the achral process of reconstructiou. In the case of " Aanar On Us Ast rc faten gegunl' (1980 SCMR 515), tlre apex Court has held that"if the landlord reasonablv and in good faith required the premises for reconstruction. it sives a cause of action to him for making an application for eviction and absence of a sanction from the authoritJt concerned could not defeat the applicetion. if such a sanction is subsequently obtained during the course of proceedings before the Rent Controller." Moreover, shops in question in possessiou of the respondent No.l are not the ouly shops iu dre plaza radrer there are other shops which are in possessiou of the other tenants and uutil the entire property is vacaled from tlre t€uants ueither coustructiou is possible nor the respoudent No.l could be directed to hand over vacart possession ol' the reuted premises on the said grourd, The ground of recorsfuction by demolitiou of the earlier constructed portion was subject to the permission from the competeut aut}ority ald uutil any such permission is granted, he could uot be directed to vacaut the premises.

6.Iusolhr as the amouut decreed agaiust the respoudeut No.l irr favour of the petitioners, i.e., Rs. 295340/- is concenred, as same has not beeu disputed, thus, the furdings of both the courts below are mai.utained to tlut ellect The controversial aspect, raised before dris court, was t}e amouut allegedly ilcurred by the respoudeut No.l orl the coustructiory' improvemeut of the shops by couvertiug it irto hotel for which tlre respondeut has made reliance ou Ex.RW L/44 ui EX.RW U45, lt was one of the grouuds of the tenarrt that he has paid

rupees lburteeu lac as security to the petitiouers aud same is outsLnrding agairxt him lbr rvhich the decree was gralted against the laudlord (petitioner) but al'ter liling of appeal, respoudent No,l has made a stjatement that uo such amount has beeu paid by him ap.inst alleged security. Statemeut was recorded belbre dre appeal court aud being based upou the statemeut the tindilgt of tlre leamed trial cour to dre exteut of security of rupees fourteeu lac were reversed and this fact has beeu admiued by respoudent No.l before this court, however, he alleged that he has spent an amouut of Rs. 1470,000/- on improvemeut of the property for which an agreement was executed ou 05,06.2006 i.e., Ex.RW l/14. Siuce it was the plea of respondeut No.l/te uant, t}ercfore, such plea was required to be proved by him but, uudisputedly, neithcr scribe, uor witnesses/ oath commissiouer or lrotary public, has beeu produced before the courl This documeut revolves arouud the alleged liability of petitiouers/audlonds pertaiuiug to the alleged improvement and costs ou the rented premises but since dre grounds taken by the respoudent No,l were factual in rnhrre, thus, were required to be proved by tem. Though, respoudent No.l has admiUed this fact that he could uot produce any wihress, however, he conteuded tlrat the plea of improvemeut was categorically taken by him in his writen statement and was uot nega.ted, as such, this shall be taken iuto cousiderariou as admined lbr which he referred Para No.6 oflegal objectiou ald Para l0 offactual objectiou. Insofar as prelimiuary objectiorr of Para 6 is coucenred, it was about the deposit of rupees Fourteen lac as security for which lre has made a statemeut belbre the appeal court that uo such amourtt was ever paid him and now hrmirg to Para l0 of the reply of the lacts whereiu he has takeu dre plea of agreemeut dated 29.03.2008, has been executed for the purpos€ of construction aud permissiorr thereol, dris couteution of respondeut No.l is repellirg to t}e date ou rvhich EX.RW U44 was allegedly executed. The date of agreement mentioued in Para l0 of the tact of reply is 29.03.2008 whereas at the foot of the agreement Ex.RW l/44 it is 05.06.2006, whreas Ex.RW l/44 was to the eflect of rupees Fourteen lac as security, thus, it has got no

coucenl with the alleged improvemeut made by him or the cost ilcurred against the improvemenl Thus, dre plea taken by the respondeut No.l for improving the superstruchrre of the rented premises has not beeu proved, however, the siguificant aspect of the instant matter is the statement made befbre this court by the sorr of petitiouer No.l as petitioner No.l has died duriug pending' adjudicatiou of the iustant petition and list of his legal heirs has beeu placed on record tluough CM No. 107. Hadayat Ullah, one of the sorrs of petitioner No,l, is before the court who has adnritted that he is in possession of rupees fourteen lac of respondeut No.l and is ready to pay it to him provided the possession of the rente d premises is hauded over to him, Irrespective of the waiver ou the part of respondent No,l before leanred trial court and his inability to prove the cost of improvement allegedly made by him with or without permissiou of the petitiouer, the clean burst stance o[ the sotr of petitiouer No.l rcquires appreciation aud, thus, respondent No.l is held entitled tbr recovery of Rupees Fourteen lac which shall be paid by Haday* Ullah, one of the sons of the deceased petitiouer No.l. Thus, viewiug the submissiou of the leamed coursel for the petitioners, grorurds taken iu the application, evideuce recorded betbre dre TribuuaVRent Coutroller, the statemeut of respoudent No.l before tlre appeal court, the admission of the son of petitiouer No.l before this court, the pagneut of Rs.295340/- as outstandiug amount of utility bills by the petitioners, both these petitions are disposed of in the followiug maturer:-

0 One of the grounds of nonpayment of utitity charges has been proved agalnst respondent No.l, as such, he is held responsible to hand ovcr yecant possession of the rented premises to the petitioners oDd, thus, the petitionerc are entitled for decree of rccovcry of possession ofthe rentcd premiscs.

(ii)In view ofthc stance ofthe sons of petitioner No.l, respondent No.l ls hcld entitled for rccoverT of rupecs fourtcen lacs.

(ii)Ground of personal need, default in paymcnt of rent' rcconstruction of the property has not been proved by thc petitioners.

(rD Respondcnt No.l is given three months' time from today to vacatc the rented premiscs and hand over its possession to the son of

petitioner NO. I from today by clearing all the utility bills till handing over of the possession of the rented premises and upon transfer of the possession, the son of petltioner No.lshall pay the amount of Rs. Fourteen lacs as edmitted by him.

(v)Thc plea of rG{onstructiotr has not been provcd because neither the pctitioner has obtained necessary permission for rGconstruction prior to filing of application nor during pendency of the case till today any such pcrmission has bcen placed on record. No order as to costs.

Disposed of accordingly

Apporrncd 05.05.2025.

Rdeascd on 02.06.2025.

JUDGE

'M Zafral CS'