1989SCMR938 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from an order, dated 12‑2‑1980 of the Lahore High Court m a case arising out of the West Pakistan Urban Rent Restriction Ordinance, 1959, whereby a second appeal filed by the petitioners (tenants), was dismissed in limine. The eviction of Ch. Muhammad Yousaf, predecessor‑in‑interest of the petitioners, was sought by the respondent on various grounds including that of personal requirement. Ch. Muhammad Yousaf died during the pendency of the proceedings. The learned Rent Controller held that the respondent required the shop in dispute bona ride for his personal use. The petitioners' first and second appeals having beer dismissed they have sought leave to appeal. In support of this petition learned counsel has raised three contentions: (1) that two notices under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958 (the property it is stated was evacuee) were sent to the predecessor‑in‑interest of the petitioners on 30th August, 1971 and 30th October, 1971‑‑while the original application for eviction was filed on 18‑2‑1977, the amended application was moved on 15‑6‑1977, and as the predecessor‑in‑interest of the. petitioners was entitled to six years protection under the said Act, therefore, the eviction could not be ordered on ground of personal use; (2) that the respondent owns a factory spread over a large area of more than 15 kanals on the same road where the shop in dispute is situated and as the respondent could do the business in his factory, therefore, the shop in dispute was not requited by him in a bona fide manner‑; and lastly (3) that the petitioners moved an application before the learned first appellate Court wherein prayer was made for additional evidence with regard to the location of the factory but the same (application) was not disposed of the argument being that the High Court has failed to consider this aspect of the case. Learned counsel did not press the argument which was urged before the High Court. namely, that the respondent was in occupation of another rented shop for conducting his business. The first point raised by the learned counsel, it is now admitted, was not urged before the High Court nor its factual aspect has been investigated. We, therefore, see no justification for permitting, the same to be raised at this stage. Learned counsel for the caveator has, in reply to the second point./ contended that the respondent's factory which was lying closed is situated at a considerable distance from the shop in dispute and that there is no question (if proximity. He has also pointed out that there is no possibility of the respondent running his business m the factory which is for a totally different purpose. This B point, it appears, was also not argued before the High Court. After hearing both the learned counsel on this question, we are of the view that the factory even if it can be considered as non‑residential premises, is not suitable for the business which the respondent wants to run in the shop in dispute. There is, therefore, no force in the second argument either. In view of our opinion on the second contention the third contention of the learned counsel would lose significance. Be that as it may, it appears that the point with regard to the additional evidence which it is stated was raised in an application made before the first appellate Court was not pressed in the High Court. If the petitioners would have been serious in this behalf the possibility that they could have made a fresh application in the High Court for additional evidence could not be excluded. After hearing the learned counsel at some length we do not find any force in this petition. The petition accordingly is dismissed. However, in the circumstances of the case we allow two months' time to the petitioners to vacate the premises. This order is subject to the petitioners' observing during this period the terms of the tenancy. A~/K‑96/S Petition dismissed.