2016 PLP 49 (CLCN)

ABDUL LATIF KHAN, J.

Through the instant writ petition, petitioner has challenged the judgment and decree dated 19.9.2011, passed by learned Additional District Judge-II, D.I. Khan for declaring the same unlawful and without jurisdiction.

2. Brief facts of the instant writ petition are that the petitioner filed the ejectment petition under section 13 of Urban Rent Restriction Ordinance, 1959 for the ejection of respondent from shop No.83, fully detailed in the head not of the petition, as well as, recovery of rent at the rate of Rs.1300/- per month since June, 2008 with arrears of electricity bills if found outstanding against the respondent since April 2010 till date of obtaining possession. The learned trial Court summoned the respondent, who appeared and submitted his written reply. The learned trial Court after framing issues, directed the parties to produce their pro and contra evidence. After recording evidence of the parties, the learned trial Court accepted the petition, vide judgment and decree dated 02.7.2009. Both the parties, preferred appeal before learned appellate Court, who vide judgment and decree dated 19.09.2011 accepted the appeals, hence the instant writ petition.

3. Learned counsel for the petitioner contended that the learned appellate court has wrongly dismissed the petitioner for ejection of the respondent from the suit shop and has reversed the judgment and decree of the learned trial court without any justification. He contended that the respondent never claimed to the court in support of his affidavit. He contended that the disputed shop was needed bona fide by the petitioner for his personal use and the learned appellate court has wrongly disbelieved the contention of the petitioner with this regard and as such travelled beyond jurisdiction vested in it. He contended that sufficient evidence has been produced by the petitioner and has himself appeared as AW-5 and reiterated the stance taken by him in the petition and the learned Rent Controller has rightly ordered the ejectment of respondent from the suit shop, whereas the learned appellate court has without any justification set aside the order of the learned trial court, which is the result of misreading and non-reading of evidence and is liable to be set at naught.

4. As against that, the learned counsel for the respondent contended that the petitioner has acquired the ownership of the suit shop on 03.6.2008 from his father and no notice was issued for the ejectment of the respondent. He contended that this act of the petitioner amounts to malice on his part for the ejectment of the respondent because the petition for ejectment filed by his father was dimissed upto the apex court. He contended that the petitioner is the owner of numerous shops and he has failed to prove that how the suit shop is suitable for his personal need. He contended that the petitioner is malafidely chosen the suit shop for his personal need and he was supposed to ask for the ejectment of any other tenant from the other shops. He contended that the learned appellate court has rightly dismissed the ejectment petition filed by the petitioner.

5. We have heard learned counsel of the parties and perused the record with their valuable assistance.

6. The petitioner has filed the rent petition before the Rent Controller on 05.09.2008 for the ejectment of respondent along with recovery of rent and utility bills. Originally the suit shop was the ownership of the father of petitioner, who transferred the same through registered deed No.795 attested on 09.6.2008 in favour of the petitioner. He has sought the ejectment of respondent on the basis of bona fide personal need. The respondent has contested the petition by filing his written reply and contended that the registered gift deed No.795 dated 09.6.2008 has been attested malafidely. The petitioner produced official witnesses to prove his ownership and possession of the respondent as tenant. AW-3, AW-4 and AW-5 have filed affidavits before the Rent Controller as required under the law, which were exhibited during the course of their examination. All these witnesses were subjected to lengthy, taxing and searching cross-examination but nothing against the stance of the petitioner could be digged out from the mouth of these witnesses.

7. On the other hand, the respondent/tenant produced two witnesses as RW-2 and RW-3 apart from RW-1, the special attorney of the respondent. The careful perusal of the evidence of the parties suggests that the petitioner has successfully proved the case. Admittedly, he is owner of the suit shop and the respondent was tenant under his father and now under the petitioner, and is paying rent to him since acquisition of title by him in the year 2008. The evidence produced by the petitioner was cogent and confidence inspiring and despite hectic efforts, the respondent was unable to make dent in it.

8. The learned trial court has rightly evaluated the evidence and passed the order for ejectment of the respondent from the suit shop. However, the learned appellate court has been swayed by consideration other than judicial while setting aside the judgment and decree of the learned trial court.

9. The ownership of huge property in the name of family or its members is not a disqualification to eject the tenant from the property. The learned appellate court has travelled beyond its jurisdiction by holding that the petitioner has a lot of property in the market and none of his family member is running business in it. It does not mean that the petitioner is bound by any act of his relatives to the effect that they are running business personally or otherwise. It has also been wrongly held by the learned appellate court that some of the relatives of the petitioner vacated the shop from their tenants for personal need and have not started business themselves, as the petitioner cannot be held responsible for the acts of others. Even otherwise law provides procedure to meet such eventualities. Section 13(4) of Urban Rent Restriction Ordinance, 1959 is reproduced below:- "

13. Eviction of tenant.- (4) Where a landlord has obtained possession of a building land in pursuance of an order made under sub-paragraph (i) or subparagraph (ii) of paragraph (a) of subsection (3), does not himself, or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining or having been so occupied is re-let within two months of the said date to any person other than the original tenant the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly".

10. The above referred provision provides a mechanism that if the landlord obtained possession of building, premises vacated through court on the ground of personal need or any of his child and has not occupied as such within one month or has further let within two months, the original tenant has the remedy to apply to the Controller, who in term shall direct for the restoration of possession. In the light of this provision of law, the sole statement of the petitioner/landlord is sufficient for his bona fide personal need as he has to use the premises for the purpose and not otherwise under the orders of the court. He has no option to do otherwise because in such eventuality he would lose the possession of the shop simply on the application of tenant to be moved before the Controller. Even otherwise there is no rebuttal on file to the evidence produced by the petitioner, the learned appellate court has bounded down the petitioner/landlord under the wish and whims of tenant which is against the mandate of law. It is prerogative of the owner/landlord to chose any shop of his choice out of numerous shops owned by him, suitable for his personal need and in no eventuality this option can be subjected to the wish and whims of the tenant.

11. One Mst. Zaitoon Bibi, paternal aunt of the petitioner moved an application for sine die adjournment of the instant writ petition till the disposal of application moved by her under section 12(2), C.P.C. pending before the learned Civil Judge-VI, D.I. Khan titled Mst. Zaitoon Bibi v. Mian Muhammad Naveed etc., the present petitioner. The learned counsel appearing on behalf of the applicant Mst. Zaintoon Bibi conceded that a decree for partition of the entire market originally owned by Bashir-ud-Din, the predecessor in interest of the parties, has been passed in favour of the petitioner by the learned Civil Court and he was unable to reply the query that the private partition already carried out between legal heirs of late Bashir-ud-Din including (Mst. Zaitoon Bibi applicant and the petitioner Mian Muhammad Naveed, along with others) would be given effect through court decree and adjustment made between the owners would no effect the right of the petitioner for the simple reason that in partition the possession of the parties is always honoured subject to adjustment. So in the presence of a decree passed by the competent court, no application under section 12(2), C.P.C. can be moved by the applicant Mst. Zaitoon Bibi, even otherwise at present no decree exists against which application under section 12(2), C.P.C. has been moved, which shows that she is in league with the tenant against her nephew, the present petitioner, in order to frustrate the instant proceedings and the application is based on malice and as such being without merit, deserve dismissal.

12. For the foregoing reason, we accept the instant writ petition and set aside the judgment and decree dated 19.9.2011 passed by learned Additional District Judge-II, D.I. Khan and restore the judgment and decree dated 02.7.2009 passed by learned Rent Controller/Civil Judge-VI, D.I. Khan with the direction to the respondent/tenant to vacate the suit within two months. JJK/531/P Petition accepted.