1981 SCMR 557 (PLP)

KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about a bungalow bearing No. 34-A, situated in Peoples Colony, Lyallpur (now Faisalabad). This bungalow was taken on rent by the petitioner Sabir Hussain from respondent landlord on 18-9-1969. On E-4-1976 the landlord filed an application for eviction of the tenant from the aforesaid bungalow, inter alia on the ground that he needed the same in good faith for his own occupation .and for the residence of his children who were receiving education in colleges in' Lyallpur. The application was accepted by the learned Rent Controller who by his order dated 30-3-1978, directed the eviction of the tenant. The tenant/petitioner filed an appeal but without any success as the same was dismissed by the learned Additional District Judge on 15-2-1979. His second appeal being S. A. O. No. 100/79 also met the same fate and was dismissed on 10-4-1979 by the High Court.

2. The petitioner has come up in a petition for special leave to appeal against the same to this Court.

3. The first point argued by the learned counsel for the petitioner was that during the pendency of the appeal before the learned Additional District Judge, the landlord had obtained possession of some other accommodation and therefore the case should have been sent back to the learned Rent Controller for reassessment of the whole situation after the notice of the accommodation which had become available to the landlord so as to find whether the same was sufficient or not for his needs. The conten tion has no merit. In this respect we may refer to a passage in paragraph of the order of the learned Additional District Judge, which reads as follows :- "Learned counsel for the appellant argues that a quarter of the Kothi is lying vacant. Therefore, College going children of the landlord can put up there. The servant quarter attached to the disputed Kothi can never be a suitable accommodation for the daughters and son of the landlord being below their status. The landlord is not occupying any residential house suitable for his needs in Faisalabad City." In the, face of the above factual position the learned counsel is no justified in finding fault with the orders of the Courts below refusing the remand of the case to the learned Rent Controller, inasmuch as, obviously a quarter of that very bungalow could not be considered a suitable for the need and the status of the landlord who is retired Lt.-Col from the Army.

4. Learned counsel then argued that the plea of the landlord that he needed the bungalow for the residence of his children in good fait was not correct because the aforesaid children have been studying in colleges since long and had he required this kothi for them and himself in good faith he could have filed an ejectment application earlier. The point is essentially one of fact and has been squarely met by all the Courts below by holding that if the landlord now wants that his children should stay and live in his own house there is nothing wrong in it. We find no mistake in the aforesaid findings. Learned counsel has not been able to point out any misreading of record in this connection and as such his objection is without any substance.

5. The last point argued was that the bungalow in dispute had been taken by the petitioner both for residential and commercial purposes and it could have been got vacated only if the landlord similarly required it for the same composite purpose. It was argued that as the bungalow was being required only for residence of his children (and not also for a commercial purpose), therefore this was not a use or need available fur getting a bungalow of this type vacated solely on the ground of the aforesaid "need or requirement". In this connection the learned counsel also wanted to refer to the relevant rent deed dated 10-9-1969 which contained a recital that the bungalow was taken by the tenant for residence and also for opening a poultry farm business therein. He pointed out that to consider this point leave to appeal has already been granted by this Court in Mrs. Gool v. Mrs. Nasim A. Rahman (P L D 1979 S C 843), therefore leave to appeal in the present case should also be granted. We do not agree. The present case is d1stinguishable inasmuch as the point was not raised before the learned Rent Controller and neither before the learned Additional District judge nor before the High Court. If the tenant wanted to raise a plea that the kothi in dispute is a "non-residential building" within the contempla tion of section 2 (d) of the Ordinance then he should have specifically Pleaded it in his written statement. According to the aforesaid provision of law a "non-residential building" means "a building being used solely for the purpose of business or trade". Learned counsel for the landlord pointed out that the tenant was himself residing in this building and that it was not being used for commercial purpose. However, he argued that if for the sake of argument (without conceding) he was also doing any business in any of its quarters then it was not a use of the "kothi as distinct from use of the quarters for business purpose and nor would the kothi for this reason become a non-residential building with the result that it could be got vacated only for business or trade purpose. This controversy will show that' in the instant case the factual basis on which the plea is being raised is' lacking, and, therefore, leave to appeal cannot be granted on a point which was not raised in any of the three Court below and to plead which first there has to be made a roving inquiry and detailed evidence has to be recorded.

6. The result is that this petition has no merit and is dismissed. The petitioner is, however, given four months time to vacate the bungalow in dispute, subject to regular payment of rent in the meanwhile. Petition dismissed