1990 PLP 1277 (CLC)

Muhammad Sarwar herein respondent is the landlord while Jan Muhammad and Muhammad Ikram are tenants. The rented premises is shop situated in Jandar Bazar, Sialkot. Jan Muhammad was inducted into rented premises vide a rent deed dated 16‑10‑1973. Muhammad Sarwar filed application for eviction on the ground of personal requirement. The application was resisted. The allegation of subletting was denied and also the requirement of landlord was disputed. FACTS OF WRIT PETITION No 904,/82: Muhammad Sabir and Muhammad Yousaf herein petitioners are tenants while Muhammad Sarwar is the landlord. The rented premises is contiguous shop situated in Jandar Bazar, Sialkor City. Muhammad Yousaf was inducted into tenament vide a rent note dated 2‑10‑1973. The application for eviction was grounded on personal requirement and subletting of the shop. The application was resisted. The allegations of subletting and personal requirement were controverted.

2. The learned Rent Controller accepted both the applications and ordered the eviction of tenants named above. On appeals the learned District Judge vide judgment dated 25‑10‑1979 dismissed both the appeals. The High Court vide order dated 9‑4‑1980 accepted the SA.O. No. 3 and S.A.O.No. 4 of 1980 and remanded the case to the learned District Judge with following observations: "I feet that the learned District Judge has ignored altogether the evidence produced by the appellant (petitioner herein) and has also not adverted to the evidence produced by the respondent in its true perspective. The question whether the respondent could get two shops vacated has also been not considered."

3. In pursuance of orders of remand in both the appeals, the learned District Judge again dismissed the appeals and maintained the orders of eviction. Both the orders are impugned in Constitution Petition No. 901 of 1982 by Jan Muhammad and Muhammad Ikram and in Constitution Petition No. 904 of 1982 by Bashir Ahmad and Muhammad Yousu?

4. Learned counsel for the petitioners in support of the petition contended that the respondent had filed two separate applications in respect of two shops simultaneously without indicating in the grounds of applications that one of the shops was not sufficient for his requirement. On the basis of this uncontested fact it was submitted that the applications were not competent in view of embargo embodied in proviso 2 to sub‑clause (ii) of subsection (3) of section 13 of the Urban Rent Restriction Ordinance, 1959 (VI of 1959) (hereinafter referred as the Ordinance). Reliance was placed upon Mirza Farooq Beg v. Muhammad Arif P L D 1981 Kar. 67 Dildar Hussain Nayyar v. Niaz Muhammad Dar and another (1985 S C M R 1769) Ghulam Farooq v. Fazal Ghani (1980 C L C 1082), Shaheen Oil Traders v. Imdad Ali Shah and others (1980 C L C 1558), Abdul Majid v. Mst. Jamila Khatoon (1984 C L C 2025), Messrs Haji Janat Gul & Co. v. Ch. Nawaz Haq and 6 others (1983 C L C 241), Mehdi Hasan v. Muhammad Saeed Chandna (1982 C L C 1003) and Haji Ghulam Muhammad v. Abdul Oadir (P L D 1975 Lah. 200).

5. On the other hand, the learned counsel for the respondent supported the impugned decision. It was contended that bar contained in the proviso was not applicable to the case of the applicant/landlord who had the complete prerogative to make an application for eviction on the basis of personal requirement in respect of two shops simultaneously. No other argument was addressed.

6. As indicated above, the fate of both the petitions turns upon the interpretation of proviso already cited above. The question calling for determination is whether this proviso prohibits the filing of an application in respect of two shops simultaneously. In order to determine the respective contentions it is appropriate to examine the proviso to sub‑clause (ii) of subsection (3) of section 13 of the Urban Rent Restriction Ordinance, which is as follows: "Provided further that where the landlord had obtained possession of a residential, scheduled or non‑residential building or rented land under the provisions of sub‑paragraph (i) or sub‑paragraph (ii) he shall not be entitled to apply again under the sub‑paragraphs for the possession of any other building of the same class or rented land unless such residential, scheduled or non‑residential, building or land is no longer suitable for his needs at the time.".

7. A plain reference shows that proviso is applicable to the cases where the landlord had got the possession of shop in pursuance of order of eviction. It is not applicable to the application for eviction in the first instance. The proposition came under consideration in Dildar Hussain Nayyar v. Niaz Muhammad Dar and another (1985 S C M R 1769). In this case the landlord sought eviction of three tenants from three shops on the grounds of personal need of all the three shops. The learned Rent Controller rejected his claim. On appeal the learned District Judge maintained this Order. The High Court in constitutional jurisdiction set aside the order of both the District Judge and the learned Rent Controller and held that the law gives a landlord a choice if he says that he needs three shops of them at the same time, it is to be considered rather in a pregmatic manner. The leave to appeal was refused. In Dildar Hussain Nayyar v. Niaz Muhammad Dar and another (1985 S C M R 1769) his Lordship Mr. Justice Shafi ?ur ‑Rehman, J laid down as follows: "After hearing the learned counsel for the petitioner we find that on the legal plane the view taken by the High Court suffers from no legal infirmity such as may require further examination by this Court. However, it is for the Rent Controller and the first appellate authority to ascertain and determine the exact need of the respondent and then decide upon the question of passing an order of ejectment. It is primarily the function of the Rent Controller and of the appellate Authority to ascertain from evidence the nature of the business that the respondent wants to set up and its requirements and if they are satisfied that more than one shop is needed they should not necessarily restrict the claim of the landlord to one shop because there is no such compulsion of law in the matter particularly so where the shops happen to be adjoining and he being the owner landlord can utilise them in accordance with his extended or reduced needs as the case be."

8. The ratio emerging from the analysis of proviso to sub‑clause (ii) of subsection (3) of section 13 of the Urban Rent Restriction Ordinance, is that there is no embargo on the right of landlord to file an application for eviction of A more than one shop simultaneously on the ground of personal requirement and that the personal requirement is to be adjudicated by the Courts after carefully considering the evidence of the parties on the record and in the context of the statement of landlord made on oath if it is consistent with averments in the plaint.

9. Applying these principles to the facts of the case I have no doubt in my mind that the learned District Judge has adjudicated the question of requirement after carefully considering the evidence of the parties on record. It is clear from the record that the petitioner landlord had no other shops and wanted to start business in the shops in dispute. The conclusion of the learned District Judge does not suffer from lack of jurisdiction or excess of jurisdiction and is, therefore not liable to interference in the constitutional jurisdiction of this Court.

10. In result I find no substance in these petitions, which are accordingly dismissed.

11. Both these Writ Petitions were admitted to regular hearing and the eviction order passed by the Appellate Authority was stayed. In the context of this peculiar feature of the case, 1 hereby with the consent of the parties modify the impugned order of the District Judge and order that the petitioner/tenant shall deliver the possession of‑the rented premises within three months of the passing of this order i.e. up to 2‑3‑1990. 1f the petitioner/tenant does not deliver the possession voluntarily the landlord shall have a right to file execution applications. Meanwhile the petitioner/tenant shall go on depositing the rent in the Court of the learned Rent Controller, Sialkot upto 5th of every month, in case of default the landlord shall have a right of executing the eviction orders. H.B.T./J‑71/L????????????????????????????????????????????????????????????????????????? ??????????? Petition dismissed.