2023 PLP 507 (YLR)

MOHAMMAD IBRAHIM KHAN, J.

By Suit No. 6/RC of 2011, Dr. Sohail Mehmood, the landlord of Shop No.5, situated at Umar Market, Havelian Road, Abbottabad, filed an application for ejectment of Muhammad Manzoor, in occupation as tenant. After the application was replicated and hotly contested, vide the judgment in the said suit dated 31.10.2011 passed by the learned Rent Controller Abbottabad was allowed, the suit shop was ordered to be vacated within three (03) months by allowing the petitioner held entitled to withdrawal of rent deposited in court excluding security amount of Rs.20,000/-. In the next move, the matter was taken up before the learned Appellate Court in Rent Appeal No. 03/ RC of 2012 by the tenant Muhammad Manzoor whereby the learned Additional District Judge-VI Abbottabad maintained the order dated 31.10.2011 passed by the learned Rent Controller and dismissed the appeal. In W.P. No. 62 of 2013 the tenant Muhammad Manzoor approached this court whereby the judgments of the learned courts below were maintained while the petition was found bereft of merit and was dismissed in limine.

2. Later, on execution of the decree for ejectment on the basis of personal need, the possession was transferred to the landlord, however, the plea taken in the application for ejectment on personal bona fide need to establish a clinic by the landlord, being a doctor by profession, as he remained in America, an application for restoration of possession was preferred before the learned Rent Controller by the tenant, which was accorded in terms of the judgment of the learned Rent Controller Abbottabad in Rent Petition No. 07/RC. Accordingly, the petition was accepted and the possession was restored to the tenant. Next off the matter was preferred through an appeal bearing No. 02/RC of 2014 whereby the learned Additional District Judge-III Abbottabad on 02.07.2015 did not agree with the observation of the learned Rent Controller, hence, on acceptance of the appeal, the impugned judgment for restoration of possession of Shop No.5 situated at Umar Market, Havelian Road, Abbottabad, stood dismissed. This is the Writ Petition bearing No. 817-A/2015 wherein the perspective prayer has been envisaged as:- "Under the circumstances, on acceptance of instant writ petition the impugned judgment and decree dated 02.07.2015 passed by the learned respondent No.2 to the extent of dismissal of application for restoration of application may graciously be set-aside and the said application may be allowed. Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case."

3. Having heard the arguments of learned counsel for the parties, record with their able assistance was gone through.

4. Learned counsel for the petitioner referred to the judgment reported in 2014 MLD

869. In this judgment, the Hon'ble Division Bench of Peshawar High Court has held that where the eviction has been sought on the basis of personal need by the landlord, then the landlord was bound to make use of the suit shops but if he could not meet use of such property on the same ground, then tenant was at liberty to seek restoration of possession from the Rent Controller within a specified time. He further referred to 2011 YLR 1535, whereby the rights of the tenant safeguarded under section 13(5-B) of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the landlord, who had acted with mala fide and if the ground taken in the ejectment petition has not been fulfilled then in such case the right of the tenant exists, who could apply to the Rent Controller for an order, directing that he be put in possession.

5. Inversely, learned counsel for the respondent has referred to the judgment reported in 2001 SCMR 1698 whereby the prayers taken for ejectment are based on reconstruction of the premises and default in payment of rent, then if one of these reasons for ejectment has not been complied and the other reason exists then in such like scenario on the ground of non-payment of rent the tenant has no right to be entitled to the benefit of section 13(5-B) of the West Pakistan Urban Rent Restriction Ordinance, 1959 for restoration of premises after reconstruction of the same.

6. In this case the landlord remained successful for ejectment of the tenant on two grounds, the first ground is personal bona fide need and the second ground is default in payment of rent for two (02) consecutive months. Yes, indeed the landlord in the evidence recorded before the learned Rent Controller had been living since long in America, who had never come to Pakistan to take an initiative of practicing medicine, for which the required shop was to be utilized for the establishment of clinic. If this was alone the ground, then the tenant could have rightly been entitled to restoration of possession but where the findings in the judgment of the learned Rent Controller, in original suit for ejectment, followed by the findings in the judgment of the learned Appellate Court and the findings in the judgment of the Writ Petition bearing No. 62/2013, specifically the ejectment on the ground of personal need as well as on the ground of default in rent were taken into consideration for ejectment of the tenant, then mere non-fulfillment of the condition for personal bona fide need would not be sufficient as the tenant has been ejected on the ground of default in rent and in violation of the terms and conditions of agreement.

7. It is also disclosed by learned counsel for the respondent that the landlord Dr. Sohail Mehmood has disposed of this property and is no more the owner of the suit shop (Shop No.5, Umar Market, Havelian Road, Abbottabad). The ibid fact is also now admitted by learned counsel for the petitioner.

8. In view of the other reasons on the ground of default in payment of rent for two (02) consecutive months and while this premises have already been sold out to another owner, who has not been made as party in the present litigation, this petition is not worth of credence, hence, it is dismissed. SA/258/P Petition dismissed.