2019 PLP 1967 (YLR)

ALI BAIG, J.

This civil second rent appeal under section 15(6) of Gilgit-Baltistan Rented Premises Act 2010 has been preferred against the impugned judgment/decree dated 28.11.2017, passed by the learned District Judge Ghizer, whereby the learned Ist Appellate Court has accepted the petition of the present respondent/petitioner filed under section 13(3) of Gilgit-Baltistan Rented Premises Act 2010, by allowing first rent appeal of the present respondent/ petitioner.

2. Succinctly, facts of the case necessary for disposal of this appeal are that the present respondent/petitioner namely Sher Alam son of Shazada resident of upper Gahkuch Tehsil Punial District Ghizer, filed an application under section 13(3) of Gilgit-Baltistan Rented Premises Act 2010, against the present appellant/respondent namely Nasir Akhtar son of Muhammad Sharif resident of Ayashi, Tehsil Punial District Ghizer for ejectment of appellant/respondent from rented shop on the ground of personal need in the court of learned Rent Controller Punial/ Ishkoman.

3. The present appellant being respondent in ejectment petition hotly contested the matter and filed replication to the ejectment petition wherein he has repudiated the averments of ejectment application on many legal and factual grounds.

4. The learned Rent Controller Punial/Ishkoman framed the following issues from the divergent pleadings of parties After farming the above said issues, the learned Rent Controller directed the parties to produce their respective evidence. Accordingly, the present appellant/respondent has produced two oral witnesses namely Noor-ul-Ameen son of Sher Ameen and Ismail son of Painda Gul besides recording of his own statement in the court of learned Rent Controller Punial/Ishkoman. The present respondent did not produce any evidence in the trial court except recording of his own statement in the court of learned Rent Controller Punial/Ishkoman District Ghizer.

5. On conclusion of trial the learned Rent Controller/Senior Civil Judge Punial/Ishkoman vide judgment/decree dated 30-3-2017, has dismissed the ejectment application of the present respondent/ petitioner. The said judgment/decree passed by the learned trial court was challenged in the court of the learned District Judge Ghizer through First Rent Appeal by the present respondent/landlord, which was allowed by the learned District Judge Ghizer, hence the instant Second Rent Appeal.

6. The learned counsel appearing on behalf of the appellant contended that the impugned judgment/decree dated 28.11.2017, passed by the learned 1st Appellate Court is contrary to law and facts on the record of the case, as such the impugned judgment/decree passed by the learned Ist Appellate Court is not maintainable and liable to be set aside. The learned counsel for the appellant further argued that the respondent/ petitioner had failed to adduce any oral or documentary evidence in the trial court and the respondent had failed to prove his claim/plea of personal need of the disputed shop, therefore, the learned Rent Controller Punial/Ishkoman had rightly dismissed the ejectment petition of the respondent and learned District Judge has wrongly allowed the appeal of the respondent as the respondent had failed to prove his claim of personal need of the disputed shop. The learned counsel for the appellant further argued that another tenant of the respondent namely Noor-ul-Ameen has vacated the rented shop owned by the respondent and possession of said shop has been handed over to the respondent as evident from the affidavit of Noor-ul-Ameen dated 26-02-2018, hence the present disputed shop is not required to the respondent for personal need.

7. On the other hand the learned counsel for the respondent controverted the arguments advanced by the learned counsel for the appellant and supported the impugned judgment/decree passed by the learned District Judge, Ghizer. The learned counsel for the respondent further argued that son of the respondent is jobless and the respondent wants to establish a business in the disputed rented shop for his un-employed son, hence the said shop is needed for bona fide personal use of son of the respondent.

8. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

9. The case set up in ejectment application is that the rented shop is in good faith required by the respondent/ land lord for use and occupation of his son namely Samiullah as he is jobless and the respondent intends to establish business in the said disputed shop. Admittedly to substantiate the aforesaid claim/plea the respondent/ petitioner was required to produce either oral or documentary evidence in the trial court, but the respondent has miserably failed to prove his claim/plea taken in the ejectment petition and he has simply recorded his own statement in the trial court, hence the case of the respondent/petitioner is without evidence. In the instant case the crucial issue is issue No.3 which is re-produced as under:-- Issue No.3. Whether the petitioner needs the shop for his personal bona fide need? The onus to prove this issue was on the present respondent/petitioner, namely Sher Alam.

10. A perusal of record it transpires that the respondent/petitioner has not produced a single oral or documentary evidence in the court of learned Rent Controller/Senior Civil Judge Punial/ lshkoman whereas claim/plea of personal need of the disputed shop must be proved by evidence on a very high order and it cannot be proved by mere recording of statement of the respondent/ petitioner or on the basis of averments of ejectment petition.

11. It is settled principle of law that plaintiff has to prove his case on its own strength/footing by producing cogent evidence and he has no right to claim that his suit may be decreed on the weakness of opposite party/defendant in the suit. In this connection, reliance may be placed on reported judgment of Lahore High Court reported in 2004 CLC 1847.

12. Moreover, from perusal of record it shows that in addition to the present disputed shop the respondent/petitioner has two other shops situated adjacent to the disputed shop and another shop has already been vacated by the tenant namely Noor-ul-Ameen during pendency of suit/appeal as evident from an affidavit dated 26-02-2018, sworn by Mr. Noor-ul-Ameen tenant of the present respondent in this regard, which is available on judicial file and the respondent can establish business to his son Samiullah, in the aforesaid vacated shop.

13. In the above circumstances, the impugned judgment/decree dated 28.11.2017 passed by the learned District Judge Ghizer is legally not sustainable and the same is set aside. Consequently, the judgment/decree dated 30.3.2017 passed by the learned Rent Controller Punial/Ishkoman stands restored. This appeal is allowed and ejectment application is dismissed with no order as to costs. File. SA/215/GB Appeal accepted.