P L D 1995 Peshawar 9 (PLP)

2. The common facts in the two appeals, for the purposes of their disposal, briefly stated, are that Abdur Rashid respondent instituted ejectment Petition No.39 of 1989 against Ghulam Sabir and another bearing No. 40 of 1989 against Abdur Rehman Under section 17 of the Act for the latter's eviction from two contiguous shops Nos. 1090 and 1091‑92, on Saddar Road, Peshawar Cantonment, on the grounds of default in payment of rent and bona fide requirement of the shops in dispute for personal use by the respondent who was retiring from service in the year 1990. These petitions were separately resisted by the two appellants and both the grounds for seeking ejectment were refuted. On the divergent pleadings of the parties, the learned Rent Controller framed, in both the petitions, as many as eight identical issues but for the purposes of these two appeals the following issues are relevant:‑‑‑ "(2) Whether the petitioner is estopped by his own conduct to bring the present petition? (3)? Whether the petition is premature, as the petitioner is being retired at yet, if so, its effect? (4) Whether the petition is based on mala fide? (6) Whether the petitioner requires the suit premises for self‑use? (7) Whether the petitioner in order to convert and to make changes and alterations by constructing one shop out of two shops has taken proper and valid sanction from Cantonment Board, Peshawar Cantonment?" The learned Rent Controller on conclusion of the trial held on issue No.2 that there was nothing to show that the respondent was in any manner estopped to seek eviction of the appellants; on issue No.3, that as the respondent was not seeking ejectment of the appellants under section 17‑a of the Act allowing, inter alia, the salaried employees to get their tenants summarily ejected but under sections 17(2)(i) and 17(4)(a)(i) of the Act for applying for ejectment of the appellants on the two grounds, namely, default and bona fide personal requirement and thus found this issue against the appellants. Issue No.4 was also answered in the negative holding that the petition is bona fide and there was nothing to suggest on the record that it was mala fide. On crucial issues Nos. 6 and 7, the learned Rent Controller reached the conclusion that the respondent having retired from service is rendered jobless and, therefore, he requires the suit premises for personal need in good faith bona fidely" and further that "he would make one shop from two and would run personally". The learned Rent Controller, while making reference to the statutory safeguard made available to the respondent under subsection (6) of section 17 of the Act, pointed out that if the respondent "obtains possession of the building on the ground of personal need and if he does not occupy the building within one month of obtaining the possession the tenant, who had been evicted, may apply to the Rent Controller and can get back the possession." Reliance in this context was placed on: (i) Muhammad Zaman v. Mahboob Ellahi PLD 1981 Lahore 609, (ii) Muhammad Latif v. Hakim Nisar Ahmad and others 1986 SCMR 650; (iii) Bashir Muhammad and 7 others v. Ch. Abdul Rehamn Gill and others PLD 1987 Lahore 145, (iv) Abdus Sattar Ansari and others v. Mst. Meno and others PLD 1988 Peshawar 145 and (v) Aleem‑ud‑Din v. Muhammad Yaseen PLD 1990 Lahore 42).

3. Sheikh Wazir Muhammad, learned counsel for Ghulam Sabir, appellant, in FA.O. No.60 of 1992 contended‑‑‑ Firstly, that the expression "requires in good faith" does not connote mere wish, convenience, whim or fancy of the landlord but he must not only allege but also substantiate by positive evidence that he required the premises in good faith. Reference was made to: (i) Dr. A.R. Khaff v. Muhammad Ishaque 1972 SCMR 437, (ii) Gul Rahim Khan alias Khan v. Muhammad Naeem Khan alias Naeem Muhammad 1984 CLC 521 and (iii) Sultan Press Ltd. v. Muhammad Hasan PLD 1985 Karachi 624); and Secondly, that the respondent had sought eviction of the appellants in the petition filed on 2‑5‑1989, 17 months prior to his actual retirement whereas he was authorized under section 17‑A of the Act to seek eviction of the tenant either 6 months before his retirement or 6 months after his retirement and having been filed beyond the said period was premature. In this regard the learned counsel invited my attention to the well‑known principle of interpretation of statutes that each word of the statute is to be construed strictly. Reliance was placed on: "(i). EA. Evans v. Muhammad Ashraf PLD 1964 SC 536), (ii) Akhmir Khan v. Sher Ahmad Khan 1983 CLC 1029 and (iii) National Bank of Pakistan v. Wafaqi Mohtasib (Ombudsman) PLD 1992 Karachi 339."

4. Mian Fasihul Mulk, learned counsel for Abdur Rehman, appellant in FA.O. No.61 of 1992, apart from adopting aforementioned two contentions, additionally submitted that it had been conceded by the respondent that earlier he had ejected his old tenant from the "Balakhana" raised on the roof of the two shops on the ground of his bona fide need thereof but after evicting him instead of occupying himself he had rented it out to another tenant who was running therein a Computer Academy which was clear proof of his mala fides.

5. Conversely, Mr. Muhammad Amin Khattak, learned counsel for the respondent, reiterated the argument on the precedent case of Messrs Spinzer Snacks v. Mrs. Anjum A. Rab and another PLD 1984 Karachi 147 and which had found favour with the learned Rent Controller that even conceding for a while that the petition was filed under section 17‑A of the Act and that, therefore, it was premature, still it was not premature, in that, it had become mature during the pendency of the proceedings and in consequence the ejectment proceedings were not liable to be vitiated on the ground of being premature. Respectfully following the law laid down in: (Mst. Amina Begum and others v. Ghulam Dastagir PLD 1978 SC 220) and (ii) Sheikh Fazal Muhammad versus Sheikh Muhammad Shafi and others (1983 CLC 261) I am of the considered opinion that where a law lays down a statutory period for maintaining a lis and that period expires during the pendency thereof, such lis shall not be liable to be dismissed on the technical ground of being premature. Nonetheless, in the instant case, I am quite clear in my mind that the petition was not instituted under section 17‑A of the Act but it had been filed under section 17 of the Act and the question of its maintainability on the ground of its being premature is misconceived.

6. From the respective contentions raised at the bar, the sole question which survived for determination is whether bona fide requirement of shops in dispute in this case has been substantiated on the record by the respondent/landlord. The burden of proof initially, no doubt is on the landlord. What he could possibly urge and which he did urge before the learned Rent Controller was that he had since retired from service and that he intended to do some business in the two shops‑after removing the intervening wall. In defence, the appellants, on the other' hand, had only urged that the respondent/landlord intended to enhance the rent. The plea of letting out the two shops after eviction of the appellants on receipt of heavy "Pagree" raised at the bar finds no mention either in the written replies nor pressed into service in the witness‑box. The respondent has not been cross‑examined at all on the point of his bona fide requirement of the shops. He is not shown to have got any other shop ‑in the cantonment area and thus this assertion has gone unrebutted. The conduct of the respondent to have rented out the "Balakhana" after securing eviction order .of the previous occupant was highlighted and the alleged previous tenant was also brought but not a single word was uttered by him on the point of his eviction on the ground of personal requirement. In any case, I respectfully subscribe to the view expressed in Muhammad Zaman v. Mahboob Ellahi (PLD 1981 Lahore 609) that while determining the finding on issue of personal bona fide requirement of the shops in dispute, fundamental importance should be attached to the statement of landlord himself as no one else can better state about the need than the person who needs it. The statement of the landlord in this regard has to be taken as truthful unless it is? rebutted by cogent evidence adduced by the tenant moreso when statutory " safeguard against frivolous assertion or the abuse of the legal provision has also been made available to the tenant in the Act itself. In consequence, if the statement of the landlord is confidence‑inspiring and there is no other material brought on the ground by the tenant to rebut the assertion, then certainly it should weigh heavily with the Court to believe this plea.

7. These factors were rightly adverted to by the learned Rent Controller for arriving at the conclusion on the plea of personal requirement of the shop pressed into service by the landlord, for which there was enough material and, therefore, I do not find any exception to these findings. Accordingly I would uphold the findings of the learned Rent Controller on the plea of bona fide requirement of the two shops made by the respondent. 8: Resultantly, these appeals‑ having no merit are dismissed. There will be, however, no order as to costs.

9. The premises in dispute being commercial, three months time is allowed to the appellants to vacate them and deliver vacant possession thereof to the respondent/landlord failing which the respondent/landlord would be entitled to seek possession through process of the Court. AA./1631/P???????????????????????????????????????????????????????????????????????????? Appeal dismissed