1981 PLP 323 (SCMR)

NASIM HASAN SHAH, J.-The petitioner was a tenant of a shop (in Attock City) which belongs to Sheikh Muhammad. Ashraf who died leaving behind respondents 1-8 herein as his heirs and legal representatives. The petitioner thereupon became their tenant. After the death of Sheikh Muhammad Ashraf the petitioner entered into an agreement of sale with one of the heirs of said Sheikh Muhammad Ashraf but as the latter were not going ahead to implement the aforesaid agreement he filed a suit for specific performance. According to him, as a counterblast, they filed an ejectment petition against him on the ground that they needed the shop for the purpose of reconstruc tion. During the pendency of the petitioner's suit the Rent Controller decided the agreement application and upheld the plea of the respondents that they needed the shop bona fide for reconstruction and ordered his ejectment. The petitioner filed an appeal before the District Judge who was also of the view that the relationship of tenant and landlord existed between the parties despite the aforesaid suit and dismissed the appeal. The petitioner then filed a writ petition before the Lahore High Court (W. P. No. 7733/80) which was also dismissed by a learned Single Judge of the said Court vide judgment dated 15-7-1980 holding that merely because one of the co-sharers in the property had entered into an agreement of sale did not entitle the petitioner to defend his possession under section 53-A of the Specific Relief Act because no one co-sharer could sell or bind the others of their share. On the merits he held that "the Courts have found that the respondents require the shop for reconstruction", hence there was no justification for interfering in the constitutional jurisdiction of the High Court. This petition for leave to appeal is directed against the aforesaid order. Sardar Ata Ullah, learned counsel for the petitioner, has submitted before us that he would not press the plea of lack of relationship of landlord and tenant between the parties as the petitioner had since withdrawn his suit for specific performance. He, however, submitted that the findings of the learned Judge in the High Court that the two Courts have found that the respondents require the shop for reconstruction is incorrect because only the Rent Controller has so found. The District Judge had not adverted to this aspect at all, hence the learned Judge in the High Court has not applied his mind to the facts of the case and his order requires interference. It is true that the learned District Judge has dismissed the appeal of the petitioner after discussing the question of existence of relationship of landlord and tenant in view of the agreement of sale between the parties and after holding against the petitioner on this point proceeded to dismiss the appeal but this merely shows that the petitioner did not press the plea that the finding of the Rent Controller that the shop was needed bona fide for reconstruction was unfounded. The same position appears to have been reiterated before the learned Single Judge in the High Court which appears to have been responsible for slight inaccuracy in his order. Nonetheless the order cannot be said to be vitiated on this account nor can it be held to have been passed without lawful authority. In these circumstances, this petition is dismissed. However, as the petitioner is carrying his business in the shop he will need some time to make an alternative arrangement. He is granted four months' time to vacate the shop, provided he continues to pay the monthly rent in accordance with law. His learned counsel has assured us that he will voluntarily surrender the possession of the shop on the expiry of the aforesaid period of four months. Petition dismissed.