1991 PLP 1236 (MLD)

Sher Zaman Khan for Respondents Nos. 1 and

2. Nemo for Respondents Nos. 3 and

4. Date of hearing: 11th March, 1991. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, filed by Tahir Umar petitioner herein on 24th October, 1983, against Messrs Bata Shoe (Pakistan) Ltd., with respect to a shop situated at Liberty Market, Lahore. The eviction was sought on the solitary ground that the shop was required by the petitioner for his own use and occupation. The learned Rent Controller after framing necessary issues and recording evidence found that the personal need of the landlord did not stand proved. He consequently proceeded to dismiss the ejectment application on 18th October, 1986. The petitioner unsuccessfully invoked the appellate jurisdiction of the Additional District Judge, who dismissed his appeal on 27th June, 1987. He has now filed the present constitutional petition assailing these orders of the Rent Controller and the Additional District Judge.

2. Sheikh Zia Ullah, Advocate, learned counsel appearing on behalf of the petitioner has contended that both the Courts while non-suiting the petitioner, have acted illegally on considerations, which have no relevance under the law. It was explained by the learned counsel that the petitioner was under no obligation to disclose in the ejectment petition that his other family members were occupying another shop in the same urban area, especially when the other shop was occupied by the brother of the petitioner and not by him. On factual plane, it was contended that a full disclosure was made by the petitioner in the ejectment petition as also in evidence. The learned counsel further maintained that the impugned orders were contrary to law declared by the superior Courts, and were clearly without lawful authority and could be subjected to judicial review in the exercise of constitutional jurisdiction of this Court.

3. On the contrary, Mr. Sher Zaman Khan, appearing on behalf of respondents Nos.l and 2 has objected to the maintainability of this petition on two grounds. Firstly, that there was no jurisdictional illegality committed by the Tribunals below and, therefore, constitutional jurisdiction could not be invoked and secondly that the findings recorded by the Rent Controller and the Additional District Judge on the question of personal use cannot be interfered with by this Court in the exercise of its constitutional jurisdiction. As regards the first part of his arguments, he has relied upon Muhammad Sharif and another v. Muhammad Afzal Sohail etc. P L D 1981 S C 246; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 and Noor Muhammad v. Sarwar Khansand 2 others PLD 1985 SC 131, while for other part of the contention support is sought to be drawn from Muhammad Hanif and others v. Settlement Commissioner, Lahore Division and 9 others 1985 SCMR 474 and Ali Sher and others v. Maskeen and others 1985 SCMR

534. As regard the merits, learned counsel for the petitioner submitted that admittedly the family of the petitioner was in occupation of a shop in the same building but this tact was concealed. It was maintained that under section 13(3) of the Punjab Urban Rent Restriction Ordinance, 1959, the onus lay heavily upon the petitioner to show that the shop in occupation of his family was not suitable for his needs. The learned counsel asserted that the object in filing the ejectment petition, as has been held by both the Courts below, was to enhance the rent and the need was not bona fide. The learned counsel referred to a part of the cross -examination of the petitioner while appearing as AW 3 in which he stated that the market rent of the shop was about 5000/6000 per month and it could fetch a Pagri of Rs.300,000 or 400,000 lacs. The previous conduct of the father of the petitioner in filing repeated ejectment petitions against the Company and withdrawing the same after enhancement of rent was also pressed into service.

4. A perusal of the judgment of the Additional District Judge shows that he I has mainly non-suited the petitioner on two grounds; Firstly, that he and his brother were in possession of the adjacent shop but this fact was not disclosed in ejectment petition and secondly, that as the petitioner was in possession of the other shop, he was not entitled to have the shop vacated. Both these grounds are clearly not tenable and are not only contrary to the law declared by the superior Courts but also suffer from non-consideration of the material evidence.

5. It is not the case of the respondent that the adjoining shop is exclusively occupied by the petitioner. But on the other hand, it has been contended by the learned counsel for the respondent that the shop was in occupation of the petitioner and his family members. That being so, the petitioner was certainly not debarred from having the shop vacated for the purposes of independent business. (See Ehsan Karim and another v. Nisar Ahmad 1979 C L C 801). Furthermore, while considering this question, the Additional District Judge has without any valid basis failed to give effect to the petitioner's plea that after the death of his father, under an arrangement, the other co-sharers had relinquished their rights in the tenancy and had permitted him to occupy the shop for his own use. The brother of the petitioner who appeared as A.W. 2 fully supported him in this behalf. However, most important evidence is the admission of Talat Manzoor RW 2 to the effect that the other co-sharers had surrendered the shop in question in favour of the petitioner. Unfortunately, these statements were not adverted to by the lower Appellate Court.

6. The Supreme Court has taken the view that it is not necessary for the landlord to disclose in the ejectment petition that he was occupying any other shop (See Ghulam Muhammad v. Tamkeen alias Bhukka and 3 others 1990 SCMR1087).

7. Learned counsel for the respondent argued that it has not been shown that in the adjoining shop the petitioner has no interest and, therefore, the occupation of that shop debared the petitioner from claiming the present shop. This argument is not sustainable. Admittedly, that shop does not belong to the petitioner alone and according to the own case of respondent No.1 to all the co -sharers. Consequently, the ejectment petition could not have been dismissed on the ground that the petitioner was a co-sharer in another shop in which the entire family or at least one of his brothers, was also running business. (See Muhammad Salim and others v. Begum Musarrat Bashirul Hassan and others 1982 C L C 868). In this view of the matter, the argument that the condition laid down under section 13(3) regarding failure of the landlord to prove that he was not in possession of the property suitable pales into insignificance.

8. So far as the conduct of the father of the petitioner in filing previous ejectment petition was concerned, it has no relevance as admittedly the petitioner was not a party to those proceedings nor were the premises sought to be got vacated for his use. Furthermore, the fact that the father of the petitioner had withdrawn an earlier petition after enhancing the rent has no relevance. (See Muhammad Hafeez and 4 others v. Abdul Rashid Khan 1981 C L C 796 and Muhammad Saeed v. Dr. Sultan Muhammad 1983 C L C 2407.

9. Reverting to the objection of the learned counsel for respondent No.1 as to the maintainability of the petition as pointed out above, not only material evidence was ignored from consideration, the Additional District Judge also acted contrary to law declared by the superior Courts. The judgment cited by the learned counsel for the respondent himself viz. Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 246 supports this view. It is also well settled that it is the prerogative of the landlord to select any shop for his business and neither the Rent Controller nor the Additional District Judge could do so. (See Sardar Khan v. Riaz Ahmad and others 1986 SCMR 1981 and Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185).

10. From the above, it is apparent that the appeal filed by the petitioner has not been decided by the Additional District Judge in accordance with law, and shall have to be re-decided.

11. Learned counsel for the petitioner wished this Court to appraise the evidence itself and decide whether the shop is required by the petitioner for his own use. It is not desirable to undertake such an exercise which is primarily the function of Tribunals below, nor can this Court substitute its findings for those recorded by them.

12. As a result of what has been said above, this petition is accepted, the judgment of the Additional District Judge is declared to be without lawful authority and of no legal effect, with the result that the appeal filed by the petitioner shall he deemed to be still pending before the District Court and shall be decided afresh. The parties shall appear before the District .fudge, Lahore, on 24-3-1991, who may hear the appeal himself or entrust it to any other Additional District Judge. As the litigation has remained pending for almost seven years, it is directed that the appeal shall be disposed of within three months. There shall be no orders as to costs. A.A./T-122/L Case remanded.