1979 PLP 801 (CLC)

Ch. Amjad Khan for Appellants. Ch. Ghulam Hussain All for Respondent. Date of hearing: 22nd April, 1979. This appeal is directed against the judgment dated 19-12-1977 delivered by the Additional District Judge, Faisalabad.

2. Briefly stated, the facts giving rise to this appeal are that Slop No: P. 175/13 situate in Gole Lakkar Bazar, Faisalabad was in occupation of the appellants as tenants under the respondent-landlord. The respondent landlord filed a petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of the Rent Controller, Lyallpur for ejectment of the appellants from the shop aforementioned on 27-2-1974, on the grounds that a portion of the shop in dispute had been sublet by the appellants without the consent of the respondent-landlord and that the disputed shop was required by the respondent-landlord bona fide for his personal use and occupation.

3. This petition was contested by the appellants-tenants who, inter alia by controverted the allegations made by the respondent-landlord in the ejectment petition and pleaded that the relationship of landlord and tenant did not exist between the parties, A preliminary issue was framed in respect of this objection which was found in favour of the respondent-landlord by the learned Rent Controller whereupon the appellants-tenants preferred an appeal to the Appellate Authority, which was dismissed. Five issues on merits were thereafter framed by the learned Rent Controller, who by his order dated 21-2-1977, dismissed the petition for ejectment, leaving the parties to bear their own costs.

4. The respondent-landlord went up in appeal to the learned Additional District Judge, Faisalabad, who by his judgment dated 19-12-1977, reversed the findings of the learned trial Court on issues Nos. 2 and 4, decided both these issues in favour of the landlord, accepted the appeal, set aside the order of the learned trial Court and allowing the petition for ejectment ordered eviction of the appellants-tenants. He, however, allowed two months time to the appellants-tenants to vacate the shop in dispute. Aggrieved by Me judgment of the learned Additional District Judge, the appellants-tenants have preferred this second appeal.

5. The learned counsel for the appellants contended: Firstly, that there is evidence on record that the respondent-landlord was working with his fatter in another shop which was rented out to his father and wherefrom both the respondent and his father were evicted. An appeal was preferred by the father of the respondent against the order of ejectment which was accepted on 22-1-1974 and that case was remanded to the learned Rent Controller for re-adjudica tion with a direction to restore possession of the said premises to the respondent. The father of the respondent made an application to the learned Rent Controller for restoration of possession which was, however, later dismissed for non-prosecution. He contended that this dismissal was suffered by the father of the respondent intentionally to create a ground for eviction of the appellants from the shop in dispute in the present proceedings. With this background he argued that the bona fides and genuineness of the requirement of the shop in dispute by the respondent-landlord for his personal use and occupation were not established secondly that the learned lower Appellate Court was not justified in interfering with the order of the learned Rent Controller holding that the documents produced for establishing that the possession of the shop in dispute was not taken by the father of the respondent in order to create a ground for eviction of the appellants-tenants from the shop in dispute were not relevant for resolving the controversy involved in the proceedings out of which this appeal has arisen. He argued that the judgment of the learned lower Appellate Court stands vitiated on account of a wrong approach to the case.

6. On the other hand, the learned counsel for the respondent-landlord contended that the occupation of a shop by the father of the respondent landlord, his eviction there from, and, for that matter, the order of restora tion of possession of the said shop to the father of the respondent have no bearing so far as the requirement of the shop in dispute by the respondent landlord bona fide for his personal use and occupation is concerned. He relied on Punjab Hardware and Machine Tools Ltd., Karachi v. Wazir Ali (P L D 1976 Kar. 233) and Hasan Khan v. Mrs. Munnawar Begum (P L D 1976 Kar. 832), to contend that the landlord has the option to choose suitable premises for his own business out of the shops belonging to him and that such a prerogative could not be denied to a landlord.

7. The contentions raised by the learned counsel for the appellants do not have any force. The bona fide requirement of landlord of any premises has to be seen in the context of the case in which the controversy has arisen. The mere occupation of a shop by the father of the respondent landlord in which shop the respondent was carrying on business along with his father would not show lack of bona fides of the respondent for occupation of a shop owned by him in that the respondent-landlord may b having the desire to run his own business independently of his father. No check can be placed on a landlord to have a tenant ejected from a shop where he wants to run his own business independently. It was held in Muhammad Sadiq v. Mst. Maryam Bibi (1975SCMR111), that the mere fact of the landlady's son having a shop in his possession and vacating it after the enforcement of the Ordinance is not sufficient to spell out lack of bona fides in the absence of evidence of vacated shop having belonged to the landlady. This case is fully applicable to the facts of the present case and more so because in the case in hand it is the admitted position that even the father of the respondent was merely a tenant in the shop from where he was evicted and that the son was only carrying on business with him in that shop. The case cited by the learned counsel for the respondent, Punjab Hardware and Machine Tools Ltd., Karachi v. Wazir Ali is also fully applicable to the facts of this case.

8. Apart altogether from the above position I am also of the vie that the provision of section 13(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is a sufficient check on a landlord obtaining possession of the premises on the ground of personal use and occupation and, thereafter, not occupying the same as the tenant in the case of such an abuse by the landlord can seek restoration of possession of the premises in dispute.

9. In so far as the contention of the learned counsel for the appellants that the learned lower Appellate Court has not correctly appreciated the evidence and was not justified in interfering in the order of he learned Rent Controller is concerned, suffice it to say that this is no ground for a second appeal. The lower Appellate Court could differ with the findings of the learned trial Court and no restraint can be put on the jurisdiction of an Appellate Court in this regard.

10. Examining the case on merits as well, it will be found that it is in evidence that there is no other shop owned by the respondent in Faisalabad City and that the shop in which he was carrying on business with his father is no longer available to him for doing his business as his father had been evicted therefrom. Even if it be assumed for the sake of argument that the father of the respondent did not intentionally pursue his remedy for obtaining restoration of possession of the shop which was in his occupation as a tenant, the burden of default of the father of the respondent cannot be placed on the respondent so as to disentitle him from seeking eviction of his tenant on the ground of bona fide personal requirement of the shop for his own use.

11. In view of the foregoing, this appeal has no merit and is dismissed. There will, however, be no order as to costs.

12. At this stage, the learned counsel for the appellants has requested for some time for vacating the shop in dispute. The appellants are allowed one, month's time from the date of this judgment to hand over possession of the is shop in dispute to the respondent subject to payment of rent for this month on or before the 15th of May, 1979. In case of failure of the appellants to comply with the above condition of payment of rent or failure to hand over possession within one month, the appellant may obtain possession through the process of the Court. M. A. K. Appeal dismissed.