2009 PLP 1238 (CLC)

MUHAMMAD ALAM KHAN, J.

Zar Gul Khan petitioner has filed the instant Constitutional `petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for setting aside the judgments and decrees of the learned lower fora dated 9-7-2008 and 29-1-2009 respectively.

2. Facts of the case are that Ihsanullah Khan brought an eviction petition against Zargul and others on the ground that he is the owner of the suit Shop No.69/2 situated in Mohallah Abdullah, Bannu City and the defendants have defaulted in payment of rent from 1-1-1990 to 31-12-2000 at the monthly rent of Rs.100 due to which they were liable to be ejected therefrom. It was further averred that the defendants had sublet the suit shop without the consent of the petitioner/landlord which was required for his personal need. The learned Rent Controller after calling for replication, framing of necessary issues from the divergent pleadings of the parties, affording opportunity to the parties to lead pro and contra evidence and evaluating the same passed an eviction order dated 9-7-2008 as prayed for in the eviction petition. Feeling aggrieved, the petitioner challenged the said order in appeal and vide order dated 29-1-2009, the learned Additional District Judge-V, Bannu maintained the impugned order of the learned Rent Controller to the extent of rent, as according to the learned appellate Court in view of Article 110 of the Limitation Act, the respondent/landlord could claim the outstanding rent for three years and that too at the rate of Rs.500 per month from 7-2-2004 till the eviction of the petitioner/tenant from the suit premises and dismissing the remaining appeal directing the petitioner to hand over the vacant possession to the respondent/landlord within sixty days from 29-1-2009.

3. It was submitted by the learned counsel for the petitioner that neither the default nor the subletting as well as the personal bona fide need of the landlord/respondent had been proved on the record and thus, the eviction order is illegal and without jurisdiction. It was also submitted that the respondent/landlord had other shops and thus he could not restrict his personal need to the suit shop. He argued that the learned trial Court had passed a decree for the arrears of rent at the rate of Rs.100 p.m. beyond the period of three years as envisaged under Article. 110 of the Limitation Act. Reliance in this respect was placed on Zafar Sharif v. Muhammad Shujah 2002 YLR 1355 and Afaq-ur-Rehman v. Choudhry Afzal PLD 1968 SC 230 and on the strength of these rulings, it was submitted that the Rem Controller cannot order the deposit of rent beyond three years.

4. We have gone through the evidence recorded by the Rent Controller and the available record of the case.

5. Perusal of the record reveals that the respondent/landlord has produced overwhelming evidence to prove the continuous default of the petitioner. It is also on the record that the petitioner had sublet the suit shop on monthly rent of Rs.1,500 without any permission from the landlord. So far as rent beyond three years is concerned, that was corrected by the appellate Court and rent was ordered to be payable to the respondent/landlord for three years from the date of filing of the eviction petition, but a clerical mistake occurred that instead of Rs.100 p.m., Rs.500 p.m. was mentioned which was corrected to be Rs.100 p.m. for three years from the date of filing of the eviction petition till the eviction of the petitioner from the suit shop.

6. The contention of the learned counsel for the petitioner that no bona fide personal need was proved by the landlord is without any substance as there is overwhelming evidence on the record that the suit premises was required for the bona fide personal need of the landlord. Regarding the choice which the landlord exercised, if he has more shops, the choice is with him to select the best shop and he cannot be restricted to the choice of the tenant as held in Messrs Dada Ltd. v. Madersa Muzharul Uloom Association 1981 CLC 1101.

7. The Rent Restriction Ordinance itself provides a guarantee to the tenant that if the suit shop is vacated on the ground of bona fide personal need and the same is rented out or used for other purpose by the Landlord, then the tenant is entitled to restoration of possession which is sufficient security to the tenant.

8. The impugned orders of the two Courts below are perfectly sound, based on correct appreciation of evidence brought on record, well established principles of law and no jurisdictional error was pointed out by the learned counsel for the petitioner so as to call for interference by this Court in the exercise of its extraordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The same are accordingly maintained and the writ petition being devoid of any meritable consideration is dismissed in limine. The petitioner is directed to hand' over vacant possession of the suit shop to the respondent/landlord within three months from today. H.B.T./154/P Petition dismissed.