2006 PLP 1421 (YLR)

MAULVI ANWARUL HAQ, J.--On 12-9-2002, the appellant filed an application against the respondent for his ejectment from a building located in Multan Cantonment. The grounds for ejectment were bona fide requirement for personal use and impairment in value and utility of the building. The respondent filed written statement on 4-1-2003. He denied the said allegations and specifically stated that a shop owned by the petitioner is vacant and she had put up a banner for letting it out. Issues were framed. Evidence of the parties was recorded. Learned Rent Controller dismissed the application vide order dated 22-10-2005.

2. Learned counsel for the appellant contends that the learned Rent Controller has passed an order, which is against law and facts inasmuch as he has observed that the appellant did not mention the factum of said vacant shop in the petition. According to him upon an over all reading of the evidence requirement of section 17(4)(b) of the Cantonments Rent Restriction Act, 1963 stands fulfilled and his client was entitled to the grant of ejectment order.

3. I have gone through the entire records, copies whereof have been appended with the F.A.O., with reference whereof, learned counsel has made his submissions. Now as noted by me above, a specific plea was taken by the respondent in his written statement filed in Court on 4-1-2003. The appellant lady entered the witness box as A.W. 1 on 20-9-2003. She opted to remain silent with reference to the said vacant shop in the examination-in chief. In her cross-examination she admitted that during the pendency of theejectment petition a shop was vacated and that the same has since been rented out. There is not a word in this statement that the said shop was not suitable for her need or as to why it was rented out when it was in her possession. Similarly her witness Gulzar Hussain A.W.2 also admitted the said fact. He in fact admitted the entire plea of the respondent that the shop was vacant and a banner was displayed for letting it out and it was then so let out.

4. Now learned counsel insists that it was suggested to the respondent as R.W.1 and he admitted that the size of the said shop was smaller than the shop in question.

5. I have examined the statement of the said R.W.1 and I find that nothing turns on the said contention of the learned counsel reason being that it was primarily for the landlady to have proved the ingredients of the said section 17(4)(b) of Cantonments Rent Restriction Act, 1963.

6. Learned counsel for the petitioner then contends that it is the prerogative of the landlady to select the shop for occupation and the tenant cannot give dictation. The contention is true but to my mind it would apply where all the shops are occupied. Choice would still be available but in case of a vacant shop the landlady is required by law to prove or at least to state that the vacant shop is not suitable for her requirement. This all important evidence or even the statement of the landlady is missing in the present case. The F.A.O. is without any force and is accordingly dismissed in limine. M.H./K-10/L Appeal dismissed.