1986 PLP 428 (MLD)

Ch. Khurshid Ahmad for Petitioner. Syed Jamshed Ali and Muhammad Hanif Ch. for Respondent No.3. Dates of hearing: 6th and 7th October, 1985. This order will dispose of Writ Petitions Nos.1049 and 3878 of 1985 as some of the questions involved are common in both the writ petitions.

2. Muhammad Sharif respondent No.3 moved two separate ejectment applications one against' Mushtaq Ahmad and the other against Malik Muhammad Umar both on grounds of default and personal need. In the case of Mushtaq Ahmad petitioner, Mr. Mehboob Elahi Sheikh, the learned Rent Controller, Sargodha found both the issues against the landlord and dismissed the ejectment application on 30‑3‑1983. In appeal Mr. Abdul Hamid Khan Khatak, the learned Additional District Judge, Sargodha vide his orders, dated 22‑2‑1984 has reversed the findings on both the issues and has directed the tenant to deliver the possession of the shop in his possession to the landlord within a period of one month. In case of Malik Muhammad Umar, Mr. Muhammad Aslam Bhatti, the learned Rent Controller, vide his order, dated 7‑7‑1983 found the issue of default against the landlord but held that the landlord required the disputed shop for his personal use in good faith. He directed the ejectment of Malik Muhammad Umar petitioner. In appeal Mr. Zisur Rehman, the learned Additional District Judge confirmed the orders of the trial Court vide his order, dated 19‑6‑1984 and directed Malik Muhammad Umar to vacate the premises within two months. The orders have now been assailed in two separate writ petitions. 'As stated above, these are being disposed of by a single order.

3. The common ground of the two petitioners is that the landlord has concealed the fact of his occupation of the third shop adjacent to the two shops in question. It has also been urged that‑ the Courts below have misread the evidence regarding the third shop and have wrongly held that one of the witnesses of the tenant, namely, Sher Khan (R.W.3) has corroborated the landlord in this regard. In the case of Mushtaq Ahmad it has also .been argued that there is no notion of advance payment of rent in case of oral tenancy and that no default could be proved against the tenant as he had a period of 60 days available to him to make the payment.

4. The landlord in his statement frankly admitted the existence of the third shop but he led evidence to show that this shop was not in his exclusive possession but was in possession of a firm of which he alongwith four or five members of his family were shareholder. This firm was running a soda water factory on the premises and the third shop had been included in the factory. There is, therefore, no question of misreading of statement of the landlord who appeared as A. W. and similarly the concealment of the fact of the so‑called third shop. It was the firm which was in possession of the shop and not the landlord himself. As regards the misreading of statement of R.W.3 a corroboration is available from his statement when he refers to the soda water business and states that the father of the landlord is not engaged in any business and that his sons deal in the soda water business.

5. The petitioner argued at considerable length about the bona fide need of the landlord for personal occupation of the premises. The landlord as it is, is owner of three shops including the two shops in possession of Mushtaq Ahmad and Malik Muhammad Umar. The third shop, as stated above, is being used for the purposes of bottling, etc. of soda water. He has a fourth shop in his possession which he has obtained on rent in Muslim Bazar. In this shop soda water bottles are sold. As regards the two shops in question, the landlord has sought the ejectment on the ground that the shops are required for his two sons Nasir Mahmud and Shahid Mahmud and one of his brothers. These two sons admittedly are not doing any business. They have finished their schooling and their father is keen to induct them in business in these two shops. Even if it is assumed that the father is in occupation of the third shop, this is no bar for seeking ejectment of the petitioners from the two shops now in their occupation as the father wants to induct two of his sons in these two shops. The landlord cannot be compelled to join his sons in his own business and his desire to set up independent business for the two sons in two separate shops, belonging to him cannot be rejected merely on the ground that the father has a business of his own. The need of the two sons stands on its own footing and has adequately been proved by the landlord. The so‑called third shop is not in occupation of the landlord himself but even if it was so the need of his sons to have independent businesses could not be denied.

6. A portion of statement of Nasir Mahmud, one of the sons was read in Court in which he stated that the third shop was lying vacant at the moment but it was clearly mentioned that this shop was closed during winters as the business of soda water was relevant only in the summers. The mere fact that the shop was lying vacant in the month of February when the statement was made is no ground for refusing one of the two sons of the landlord to have independent business.

7. As regards question of default in case of Mushtaq Ahmad, the learned counsel has made a distinction between an agreement in writing and an oral agreement but the plain reading of the provisions of section 13 of the Rent Restriction Ordinance shows that oral agreements are not excluded and in the present case the tenant has stated in so many words that he was regularly paying the rent in advance and that it was paid on 5th of every month or even earlier except that at times the landlord accepted it even later. This indicates the arrangement between the parties that the rent will be paid in advance. The mere fact that the agreement was oral is no ground to hold that there was no agreement between the parties. I am unable to accept the contention of the learned counsel that unless the agreement is in writing, it is no agreement.

8. In the case of Malik Muhammad Umar, the learned counsel referred to the report of a Local Commissioner who was sent to the premises on the request of the landlord. The report of the Local Commissioner was rejected by the Rent Controller as he found bias on the part of the Local Commissioner. The learned counsel feels that this report should have been given its due weight and not rejected out of hand and at least the portions of the report which related to the terms of the reference should have been considered. I am afraid there is no merit in this argument. It is for the competent authority, in this case, the Rent Controller, to attach, what importance it chooses, to the report of the Local Commissioner and if bias is found in the report its rejection in totality will not be unjustified.

9. In view of the above considerations, it is clear that there was justification for ordering ejectment of the petitioners. Their writ petitions are, therefore, dismissed. They are directed to deliver vacant possession to the landlord within one month. There shall be no order as to costs. H . B . T .???????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.