P L D 1988 Peshawar 145 (PLP)

3. I have heard the learned counsel for the parties at great length and with their assistance have gone through the material placed on record.

4. As regards the service of notice under section 30 of the said Act, it is important to note that in view of pronouncement of the Supreme Court reported in Muhammad Ramzan v. Ch. Bashir Ahmad (P L D 1981 SC 340) and Mst. Jaleesa Begum v. Iqbal Ahmad Qureshi (P L D 1982 S C 396) service of such notice was not required after) the repeal of Displaced Persons (Compensation and Rehabilitation) Act, 1958.

5. Reverting to the ground of default I must say that no doubt the lower Court has passed an order on the application of the predecessor‑in‑interest of respondents 1 to 5 vide order sheet No.2 dated 23‑11‑1972 regarding deposit of rents, yet the law says that arrears of rent cannot be claimed by a landlord beyond a period of 3 years. In this case the period of default as claimed by the appellants becomes more than 3 years, therefore, this will not be of much help to the appellants.

6. Now coming to the ground of subletting I may refer to the statement of Dilbar Khan coupled with the documents placed on record in the shape of exhibits from the Office of Cantonment Board record and statement of Muhammad Suleman, P.W.2, coupled with the admission of respondent No.6 Khitab Gul himself that he is working in the suit shop as an Agent of Dilbar Khan there is no mention of parting of possession by respondent. It is an admitted fact that Khitab Gul, respondent No.6; is occupying the suit shop as an agent of the original tenant and it is a matter of common knowledge that there is no provision in the law that even a brother or a father could run business 'on behalf of his family or at ‑the courtesy of others in a rented shop, the original tenant of which had died. Even a father if transfers possession to his son without the permission of the landlord, the latter is sublettee. In Ghulam Abbas and another v. Faqir Hussain and another (1985 S C M R 1093) their Lordships have observed as under :‑ "Subletting‑‑Tenant remaining out of Pakistan from 1969 to 1972, from 1974 to'1977 and from 1977 to 1983. Premises (shop` run by brother of tenant alone‑‑Brother of tenant prior to departure of his brother (tenant) running another shop jointly with another brother of theirs and on account of departure of tenant, he (tenant) handed over shop and lease rights to his brother who then gave up joint business with his other brother‑‑Tenant admitting his visits abroad, in Court‑ Contention that landlord was estopped from putting forward plea of subletting on account of tenant's visits abroad, held, was not tenable‑‑Case being a clear act of subletting and landlord could not recognise, anyone else as tenant of property arid no question of waiver on part of landlord could arise in circumstances." This view has further been clarified by their Lordships of the Supreme Court of Pakistan in Muhammad Aslam and others v. Muhammad Ashraf and another (1986 S C M R 586) by observing as follows:‑ "Article 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Section 13(2)(ii)(a)‑‑Ejectment‑‑Default and subletting‑‑Tender of rent in contravention of tenancy‑‑Original tenant not keeping tenancy to himself, making R a partner in tenancy without associating landlord or obtaining his consent and himself proceeding abroad‑‑Tender of rent by R could be lawfully refused by landlord‑‑Order of ejectment on ground of default and subletting, held, unexceptionable‑‑Leave to appeal refused." In Masroor Hasan and another v. Abbas Ali Khan (1981 C L C 669) it has, been also held as under:‑ "Subletting‑‑ Burden of proof‑‑Appellant No.2 carrying on practice as Homoeopath in shop rented to appellant No. 1 (tenant) without permission of respondent (landlord)‑-Held, once landlord proves somebody else using rented premises either exclusively or jointly with tenant burden of proof shifts on tenant to explain relationship between him and user of tenement." As such, there is no provision of law, as mentioned above, for ant agent or an attorney who could run independent business in a rented shop of a tenant. Therefore, I hold that respondent No.6 who has admitted that he is running the business as an agent on behalf of the legal heirs of original tenant Dilbar Khan is a sublettee in the eyes of law and the eviction petition could succeed on this ground alone. Thus, I set aside the finding of the Controller of Rents on the issue of subletting and decide it in favour of the appellants,

7. As regards personal need of appellant No.1 it has come on record that he is a retired Government Servant, presently jobless and doing nothing to earn his livelihood. He is getting meagre pension, which cannot support his big family. It is the case of Khitab Gul, respondent No.6, that the appellants had another shop No.1021 lying adjacent to the shop in dispute and which is vacant for the last 10 years but the same is not borne out from the evidence on record. He is also wrong in saying that this shop No.1021 is much bigger than shop No.1020 in dispute. In Sabu Mal v. Kika Ram alias Haman Das (1973 S C M R 185) the following observation was made by their Lordships of Supreme Court of Pakistan:‑ "(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Section 13 (3) (a)‑‑Landlord possessing more than one house in same urban area‑‑Choice as to house in which he would like to live is matter within his prerogative and discretion. If a landlord possess more than one house in the same urban, area, the choice as to the house in which he would like to live himself is surely a matter within his prerogative and discretion, and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside." So, it is a well‑known principle of law that a landlord is at liberty to choose any place out of his property to run his business. Appellant. No.l wants to convert both shops No.1020 and 1021 in one shop and then to start business therein. That is why he had not rented out shop No.1021 for quite a long time. It is equally true that after waiting for about .12 years to get the shop in dispute vacated from the respondent, appellant No.l, being helpless and having no source of income, had no alternative but to rent it out in the year 1987. It is also important to note that the said shop No.1021 was got vacate earlier from its tenant on the ground of default and not on persona: need of the appellants and so there is no bar to get the shop in dispute vacated from the respondent by the appellants on the ground of personal need. It is also important to note that the statement of Abdul Sattar Ansari appellant No.1 herein, goes unchallenged by the respondents on the point of personal need because he has not been cross‑examined with regard to this fact. In Muhammad Mohsin v. Rent Controller and others (P L D 1985 S C 327) the observations made by their Lordships of the Supreme Court of Pakistan run as follows:‑ "Ejectment on ground of personal need‑‑Second application for ejectment, held, was riot barred by section 14, if a new cause of Action had arisen or circumstances were altered in such a manner as to justify filing of another application for ejectment." In Muhammad Zaman v. Mahboob Ellahi (P L D,1981 Lah., 609) it has been held that: "Determination of whether particular premises required by landlord for personal use‑‑Fundamental importance to be attached to statement of landlord himself‑‑Section 13(4), an. adequate safeguard against abuse of provisions of section 13(3) (a) (ii) by landlord‑‑Statement of landlord confidence inspiring and no material on record to detract from its veracity‑‑Held, such statement should be given all important weight and not treated as statement of an interested person." Therefore, in my view the shop in dispute is rightly and legally required by appellant No.l for his personal need because admittedly he is a retired Government Servant and is jobless till today and ants to run his business therein. As such, I also set aside the finding of the Controller of Rents on the issue of personal need ands decide it in favour of the appellants.

8. On the view of the matter that I take, I accept this appeal with costs, set aside the order dated 16‑2‑1987 passed by the Controller of Rents, Peshawar Cantonment and order the, eviction of the respondents from Shop No.1020, Sabzi Bazar, Peshawar Cantt. The respondents are directed to hand over vacant possession of the suit shop to the appellants within a period of 2 months from today A.A./627/P Appeal accepted