1987 PLP 1599 (CLC)

Muhammad Siddique Butt for Respondent This appeal has been filed by Niaz Ali against the respondent, Muhammad Ashraf, to assail order, dated the 27th November, 1986, passed by the Additional Rent Controller, Lahore Cantonment, whereby he directed the appellant to vacate a portion of the house belonging to the respondent. His ejectment was ordered on the ground that the disputed premises were needed by the respondent for personal use.

2. It was contended by learned counsel for the appellant that the case was not properly tried by the learned Additional Rent Controller inasmuch as he copied the evidence recorded in ejectment proceedings launched by the respondent against Mst. Sakina Bibi. FAO No. 261/86, decided by me today, has arisen out of the said proceedings.

3. While dealing with the above plea of learned counsel for the appellant, learned counsel for the respondent invited my attention to order, dated the Ist December, 1984, passed by Mr. Munawar Hussain Farooqi, Additional District Judge, Lahore, in an earlier round of litigation between the parties. That order was made by Mr. Farooqi on the basis of joint statement, of the parties counsel. In that statement learned counsel for the appellant agreed to the copying of evidence as aforesaid. In the circumstances, it is not open to the appellant to take exception to the procedure adopted by the learned Additional Rent Controller with the consent of the parties. Plea of learned counsel for the appellant in this regard is, therefore, repelled.

4. It was also urged by learned counsel for the appellant that while making as earlier order of ejectment on 30th July, 1980 the learned Additional Rent Controller decided the issue of personal need against the respondent and, therefore, he could not decide the said issue against the petitioner while making the impugned order. In this connection, learned counsel for respondent referred to order. dated the 9th March, 1981, passed by the District Judge, Lahore. In the said order, it was noted by the learned District Judge that the case had not been properly heard before the order of eviction, dated the 30th July, 1980, was passed by the learned Additional Rent Controller He, therefore, quashed that order of the learned Additional Rent Controller in toto and sent back the case to him for re‑trial. Thus, the learned District Judge set aside the finding of the learned Additional Rent Controller on the issue of personal need also and directed him to decide that issue afresh. To put it differently, the learned District Judge re‑opened the issue of personal need and, therefore, the learned Additional Rent Controller could decide it again. In the circumstances, no legitimate exception can be taken to the recording of fresh finding by the learned Additional Rent Controller on the issue of personal need.

5. Another argument advanced by learned counsel for the appellant was that the respondent was already occupying a house and, therefore, he was not entitled to seek eviction of the appellant from the premises in dispute. For this proposition, reliance was placed by him on sub‑section (4) of section 17 of the Cantonments Rent Restriction Act, 1963, hereinafter referred to as the said Act. In reply, it was submitted by learned counsel for the respondent that the house now lived in by the respondent was not owned by him and, therefore, its occupation would not operate as a bar to his seeking eviction of the appellant from the premises in question.

6. Relevant provisions of sub‑section (4) of section 17 of the said Act, which have been relied upon by the learned counsel for the appellant, read as follows:‑ "(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession, (a) in the case of a residential building, if (i) he requires it in good faith for his own occupation or for the occupation of any member of his family; and (ii) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment area concerned or in any local area in the vicinity thereof; and (iii) he or the said member has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act;"

7. Admittedly, the house in which the respondent now resides along with his family belongs to his wife whereas the premises in. dispute are owned by him. In view of the words "as the case may be" occurring in sub‑clause (ii) of clause (a) of sub‑section (4) of section 17 of the said Act, and the word "or" appearing before the said words in clause (a), if a landlord seeks to evict his tenant from a house on the ground of his personal need, his (landlord's) occupation of another suitable house owned by him would operate as a bar to his so doing; and if a landlord asks for vacation of his house on' the ground that it is required by any member of his family, he (landlord) would not be able to succeed if it is found that such member is occupying another suitable house owned by him (such member). In other words, availability of a house owned by any member of the family of a landlord would not cause any difficulty to him (landlord) if he wants to eject his tenant from a house owned by him (landlord) so that he and other member of his family may live in that house. In this view of the matter, the fact that the respondent and his family members now live in the house belonging to his wife would not preclude him from seeking eviction of the appellant from his (respondent's) house on the ground that he needs it for himself and his children. In taking this view I am fortified by Ghulam Nabi v. Rao Muhammad Usman Ali Khan 1980 SCMR 751, Muhammad Bashir v. Vensimal and 4 others P L D 1980 Kar. 409 and Mian Abdur Rehman v. Haji Muhammad Hussain and another (P L D 1971 Baghdad‑ul‑Jadid 17). The cited cases were under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, containing provisions analogous to those of section 17 of the said Act. In the cases of Ghulam Nabi and Muhammad Bashir, it was held that if a landlord is occupying a house belonging to his son, he is not debarred from seeking eviction of his tenant from a house owned by him (landlord) on the ground that he needs it for personal use. Similar opinion was expressed in the case of Mian Abdur Rehman which was in regard to a shop.

8. It was not disputed by learned counsel for the appellant that the respondent has as many as eight children. According to learned counsel for the respondent, one of his sons is also married. Admittedly, the respondent has already succeeded in getting two rooms of the disputed house vacated but that much accommodation can hardly cope with the requirements of his large family. In this state of affairs, finding of the learned Additional Rent Controller that the disputed premises are genuinely needed by the respondent for his own use is unexceptionable.

9. There is no merit in this appeal. It is, therefore, dismissed in limine. Appellant is, however, allowed four months' time to vacate the disputed premises. M.B.A./N‑33/L Appeal dismissed.