1994 PLP 1121 (SCMR)

SAEEDUZZAMAN SIDDIQUI, J: ‑‑The petitioner is seeking leave to appeal against the Order of Peshawar High Court, dated 14‑11‑1992, passed in FA.O. No.48 of 1992 rejecting the appeal filed by the petitioner against the Order of Rent Controller granting his ejectment in respect of shop No.891 Cavalry Road, Nowshera Cantt. The relevant facts of the case are that the petitioner is the tenant of shop No.891 Cavalry Road, Nowshera Cantt. The premises is owned by the respondent. The respondent instituted a rent case before the Rent Controller, Nowshera, seeking ejectment of the petitioner from the shop on the ground of personal and bona fide requirement. The application was granted and on appeal the Order of the Rent Controller has been confirmed by the Peshawar High Court. The learned counsel for the petitioner has raised two contentions before us. It is firstly, contended by the learned counsel that the respondent earlier to the filing of ejectment case against the petitioner, got vacated some other shops in the same area and rented out these shops at higher rent which fact was not considered by the learned Judge in Chamber while deciding the rent appeal of the petitioner. The second contention of the learned counsel for the petitioner is that there is no positive finding by the High Court, in appeal, with regard to the bona fide requirement of the petitioner and that the High Court, while dealing with the case, had drawn inference against the petitioner on account of his personal non‑appearance in the case and the fact that the shop in the tenancy of the petitioner was occupied by his brother, Muhammad Nawaz, who appeared as the attorney of the petitioner in the Court. None of the above contentions, raised by the learned counsel for the petitioner, has any merit. We have gone through the evidence on record in the case and find that the suggestion given to the respondent in cross‑examination that he is owner of other shops in Nowshera Cantt. in addition to the shop which was the subject -matter of the ejectment case, which he got vacated and later rented out the same at higher rent, was denied by him. He specifically stated that shops Nos.893 and 894 belonged to his brother, Feroz, while shop No.892 which belonged to him was let out on rent for a period of ten years. No effort was made to bring on record any evidence to show that either immediately before filing the rent case or during pendency of the rent case, the respondent got vacated any other shop in the same urban area and which remained in his possession. The petitioner, in his written statement before the Court, had specifically alleged that before filing of the rent case against him, the respondent got vacated shops Nos. 892, 893 and 894 for his personal and bona fide requirement and thereafter he let out the said shops at higher rent. The burden of proving these assertions remained entirely on the petitioner as the respondent had denied the suggestion given to him in this behalf during the cross‑examination. Although the petitioner's attorney, when examined in the Court, made vague statement that the respondent owned another shop which is adjacent to the shop of the petitioner, which was let out by the petitioner eight months before the date of examination of witnesses but he was unable to substantiate the above allegation. There is nothing on the record. to show that the shop No.892 was got vacated by the respondent through the Rent Controller or otherwise on the ground of his personal and bona fide requirement. The two Courts below have fully analysed the evidence in the case and reached the conclusion that the respondent had succeeded in establishing his personal and bona fide requirement for the shop occupied by the petitioner. There is neither any misreading of evidence by the Courts below nor the appreciation of evidence is perverse. The second contention of the learned counsel for the petitioner is that the learned Judge in Chamber, while rejecting the appeal of the petitioner reached the conclusion that the tenant of the shop is not interested in occupation of the shop, since he has another shop of Photography in Mardan and that, in fact, shop is being claimed by another person who is his partner and running business of Chemist and Druggist. The learned counsel very vehemently contended that this was not a ground for ejectment pressed by the respondent. in his case and as such the learned Judge in Chamber was not justified in granting the ejectment on that ground. We have gone through the judgment of the learned Judge in Chamber and find that the aforesaid observation was made by the learned Judge while dealing with the plea of personal and bona fide requirement of the respondent in respect of the shop occupied by the petitioner. There is nothing in the Order of the appellate Court to show that the ejectment of the petitioner was granted on the ground mentioned above. The observations relied by the learned counsel for the petitioner were made by the learned Judge in Chamber only to show that the petitioner did not appear to rebut the personal and bona fide requirement of the respondent, pleaded in the case. This is fully evident from the observations made by the learned Judge in Chamber immediately after the observations relied by the learned counsel for the petitioner, which is as follows:‑‑ "The tenant Muhammad Akram has not rebutted the claim of the landlord, whose statement, in the circumstances, is sufficient to prove good faith and bona fide of the claim in absence of any issues of want of financial resources or constraint to belie or disprove the claim of the landlord." We do not find any merit in this petition, which is, accordingly dismissed. AA./M‑1882/S. Leave refused.