1984 PLP 352 (CLC)

(a) Provisional Constitution Order (1 of 1981)‑ ‑‑ Art. 9‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13 (3) (ii)‑Tenancy for fixed period‑Tenant not proving tenancy for 20 years‑Application for ejectment for personal use. before expiry of such period, held, competent‑Question involved one of fact‑Concurrently found against tenant by two authorities below, normally not to be taken in writ jurisdiction. Muhammad Yousaf v. Hakim Muhammad Ahmad P L D 1978 Lah. 815 and Niaz Ahmad v. Ghulam Abbas Bhatti Writ Petition No. 135 of 1981 ref. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 13(3) (ii)‑Evidence Act (I of 1872), S. 137‑Witness Tenant's case being that Rs. 90,000 paid to landlord in advance in lieu of 20 years lease‑His witnesses cross‑examined on point that either they were not present at time of agreement or were in terested and suggestion put to tenant that allegation of advance payment was incorrect‑Contention that no witness was cross‑exa mined on this aspect of case as such plea of advance payment of rent for 20 years be accepted as correct, held, has no force in circumstances. Syed Iqbal Hussain v. Mst. Sarwari Begum P L D 1967 Lah. 1138 and Mst. Zar Jan v. Mst. Najmun Nisa P L D 1969 Pesh. 118 ref. Date of bearing: 4th May, 1983. JUDGMENT The petitioner assails the orders passed by the Rent Controller as well as the appellate authority, directing him to hand over possession of the tenanted shop and the godown to respondent No. 1, who is the landlord, for the reason that it was bona fide needed by him, for his per sonal use. The case of the petitioner has been that as, he held the pro perty under a 20 years' lease, in lieu of an advance payment of Rs. 90,000 the proviso, to section 13(3)(2) of the West Pakistan Urban Rent Res triction Ordinance, was a bar to an application for ejectment. The two authorities below, however, have not accepted the plea.

2. Briefly, the facts of the case are that the respondent No. 1 made an application, for the eviction of the petitioner, from shop and a godown in 40,Commercial, Gulberg‑III, Lahore, on the ground that it was bona fide needed for his personal use. The Rent Controller allowed the application and directed the petitioner to delver possession. An appeal filed by the petitioner failed before the appellate authority. Both the authorities held that the payment of Rs. 90,000 alleged to have been made by the petitioner, in lieu of 20 years' lease, was not proved and, therefore, the need of the respondent being genuine, the petitioner was liable to be ejected.

3. The learned counsel has again relied on the proviso to section 13 (3)(ii) of the West Pakistan Urban Rent Restriction Ordinance, to state that the application of the respondent was barred by law. He relied on Muhammad Yousaf v. Hakim Muhammad Ahmad (P L D 1978 Lah. 815) and a decision of this Court in an unreported case of Niaz Ahmad v. Ghulam Abbas Bhatti W.P. 135‑81 to say that even an oral tenancy for a specified period, which was neither written nor registered, could extend protection of law to a tenant, against eviction before the expiry of the period, on the ground of personal use. The learned counsel further stated that as the petitioner had speci fically, taken the point of 20 years' lease tenancy, while no question controvert the same plea was asked in cross‑examination, the plea shall be deemed to have been accepted by the respondent. Reliance was placed on Syed Iqbal Hussain v. Msr Sarwari Begum (P L D 1967 Lah. 1138) and Mst. Zar Jan v. Mst. Najmun Nisa (P L D 1969 Pesh. 118).

4. After hearing the learned counsel for the parties and going through the record, I find that the petitioner can succeed only if it is proved that he had obtained a tenancy for 20 years period, as in that case no application for ejectment for personal use lay before the expiry of the period. This plea, on the face of it, involves a question of fact, which has concurrently been found against the petitioner, by the two authorities below. Normally, therefore, it will not be agitated in this jurisdiction. In any case, to see that no injustice is done to the peti tioner, I have gone, with the learned counsel, through the entire evidence but find that the reasons given by the authorities below, for not accepting the plea, do not suffer from any infirmity calling for interference. It has been rightly observed that if the petitioner had paid a sum of Rs. 90,000 in advance for 20 years' lease, he at least, would not have omitted to take a receipt even if the lease‑deed was neither written nor registered.

5. Further, the contention that no witness was cross‑examined about this aspect of the case, is not correct. Practically, all the witnesses were cross‑examined on the point to show that either they were not present, at the time of the alleged agreement or they were interested. A specific suggestion was also put to the petitioner in cross‑examination to say that it was incorrect to say that any payment of the sum of Rs. 90,000 was made. It may be noted that the very case of the petitioner in his written statement was that be had paid a sum of Rs. 90,000 in lieu of securing 2 years' lease. So any question, either assailing the very presence of a witness, at the time of agreement or denying the payment of the amount, was sufficient, to take the respondent out of the rule laid down in the last two judgments quoted at the end of para. 3 above.

6. In view of the above, it cannot be said that the respondent did not controvert the plea of payment of Rs. 90,000 for 20 years' lease allowed, in lieu of the said payment. Consequently, the entire infra structure, laid by the learned counsel for resting his plea on, being non existant, this case has no merit. As a result thereof the writ petition has no merit and is dismissed with costs.

7. Before parting with the case, it may be noted that the petitioner made a specific request for more time so that he could vacate and deliver possession of the property to the respondent. The respondent very sympathetically considered the same and it is agreed that the petitioner may deliver possession after three months from the date of this order. In this view of the matter, the petitioner shall deliver the possession to the respondent on or before 4th August, 1983. M. B. A. Petition dismissed.