1980 PLP 974 (SCMR)

MUHAMMAD HALEEM, J‑The petitioner seeks special leave to appeal against the judgment of the Lahore High Court, Lahore, dated 15th of October, 1979, by which S. A. O. No. 183 of 1979, was dismissed. 'The facts which have given rise to this petition ire that the petitioner was the tenant of the respondent in respect of Shop No. 1, in Building No. 6~B, situate in the Commercial Area, Rawalpindi; at a monthly rental of Rs.

115. The respondent owned 5 other shops in the same building. On the ground that the respondent needed the shop for his own use and that of his four sons, who were jobless, he sued for the ejectment of the petitioner on 12th d March, 1973. Simultaneously, the respondent sued for the ejectment of another tenant, Abdullah, of a contiguous shop on the ground that it was required for the use of his jobless sons; and in particular, from amongst his sons, gave out the name of Wali Muhammad who wanted to start some business in the shop. By order dated 13th of November, 1976, the Rent Controller dismissed the petition. His conclusion was that the respondent had failed to establish his good faith in seeking the ejectment of the petitioner from the shop either for his own use or that of his sons. The reasons were firstly, that the "petitioner was not sufficiently cross‑examined" to rebut the assertion that his son Ghulam Muhammad was not capable of doing business and that his other son, Walt Muhammad, was "doing his business at Lyallpur" which was established from the copy of an extract from the Assessment Register (Exh. R/2) which showed that he was occupying property comprised of the rooms and‑one shed at Lyallpur and that document stood unrebutted as Wali Muhammad failed to appear in the witness box to challenge it; secondly, that in the ejectment application filed against Abdullah, the same ground that is the need of the shop for the use of his jobless sons was alleged whirl is also the ground aver‑red in this petition; thirdly, that this application was tied with the object to enhance the rent as earlier too a notice was served and after the rent was enhanced the remedy was not pursued for two years; fourthly, that it has come on record that two of the petitioner's sons are employed and the third is doing business at Lyallpur while only Ghulam Muhammad is left who is ill and not capable of doing any business. Further, that the respondent did not say in his evidence that he wanted to start business although he has taken that plea in his application; and fifthly, that in the appeal by Abdullah against his ejectment, he had compromised with him with the result that the order of ejectment was set aside and, therefore, he cannot seek ejectment of the petitioner on the same ground which had weighed with the Rent Controller while ordering the ejectment of Abdullah. In the first appeal, the learned Additional District Judge, Rawalpindi, reversed the conclusion holding that on the date of the institution of the application it was established that two of the respondent's sons were jobless but that would "not diminish in any manner his need of the premises for other sons or even one, son" and for that matter the requirement cannot be regarded as without good faith. He further held that the Rent Controller had not properly appreciated the facts brought on the record, which clearly established that the shop was required in good faith for the use of his sons Wali Muhammad and Ghulam Muhammad. He further held that the Rent Controller fell into an error when he took into consideration the plea of the enhancement of rent as the motive behind the application as that was not a relevant factor in determin ing the good faith of the respondent vis‑a‑vis his requirement; and as to the earlier notice for his ejectment which was not further pursued, the learned Additional District Judge held that the respondent had sufficiently explained as to why he did not do so and that should have sufficed. In regard to the illness of Ghulam Muhammad, he held that the former had appeared as a witness and had also attended this Court and from his appearance he did not look to be incapacitated for doing business. The learned Additional District Judge also accepted the explanation of the respondent that he had compromised with Abdullah because of the intervention of some persons of the locality; and lastly, the Additional Sessions Judge concluded that he was convinced of the bona fide requirement of the shop for the use of Ghulam Muhammad and Wali Muhammad, the sons of the respondent. In Second Appeal, the High Court agreed with the opinion of the learned Additional Sessions Judge while dismissing the appeal. In seeking leave to appeal the learned counsel for the petitioner contended that the Courts below erred in holding that the shop was required for the use of Ghulam Muhammad and Wali Muhammad as in the other petition which eventually ended in a compromise between the parties, the requirement of the shop for Wali Muhammad was alleged and that could not be the ground in this application. This contention is misconceived as the Courts below have concurrently held that even if it be for the need of one son that would satisfy the requirement of law and we agree with it. In this background even if the need for Wali Muhammad was mentioned in the other application, that would have no effect on the bona fides of the requirement. Besides, it was urged that Ghulam Muhammad was mentally incapacitated and, therefore, he "could not run a shop" which contention was rejected as it was held that there was no evidence to establish that he was an infirm person. Both the appellate Courts have concurrently held against the petitioner on questions of fact and we see no reason to disturb those findings in the absence of any legal error in the appreciation of evidence. The petition fails and is hereby dismissed. However, four months time is allowed to the petitioner to vacate the shop subject to the payment of rent. Petition dismissed.