1988 PLP 801 (SCMR)

USMAN ALI SHAH, J.‑‑This appeal, by leave, arises from the judgment of the Lahore High Court dated .19‑1‑1980, whereby the order of eviction made by the learned Rent Controller dated 14‑10‑1978 and affirmed by Additional District Judge Lahore, against the respondent was set aside. The applicant (appellant herein) owner of a double storeyed building, situated at Street No.319 Bibi Ahata near Misri Shah, Sultanpura, Lahore, the ground floor of which consisting of 4 rooms with other amenities was rented out to the respondent herein at a monthly rent of Rs.70 and the upper portion consisting of 3 rooms and kitchen was occupied by himself. On 25‑11‑1974 the appellant had filed an eviction application against the respondent before the learned Rent Controller, Lahore on‑ the pleas of default in the payment of rent since August 1972, causing damage to the property, subletting the premises and above all for his personal need. The respondent contested the application. The Rent Controller examined 5 A.Ws. on behalf of the appellant and 2 witnesses were produced by the respondent. An affidavit (A.W. 3) sworn and executed by the respondent on 16‑2‑1973 before the Oath Commissioner, Lahore was placed on record by the appellant, on the basis of which the learned Rent Controller Lahore, dealt with issues Nos.l and 5 came to the conclusion about the rent of the premises was to be Rs.70 p. m. which was not paid by the respondent, as a result of which he was found to be a defaulter in payment of rent. Issue No.4 was also held by the trial Court that the portion in possession of the appellant was insufficient for his big family, this fact was corroborated by the P.Ws. produced by the appellant. The learned Rent Controller vide his order dated 14‑10‑1978 decided that the petitioner needed the house in good faith and for his personal use and ordered the eviction of the respondent. Being aggrieved by the said order the respondent filed an appeal before the District Judge, Lahore on 24‑5‑1979 which was dismissed on 13‑5‑1979 and affirmed the finding of the Rent Controller. The respondent filed a second appeal before the Lahore High Court, challenging the concurrent findings of the two Courts below, urging that he had never been a defaulter till the filing of the eviction application against him. The learned High Court, however, accepted the appeal on the ground that the eviction application was pre‑matured as the rent for the months of August, September and October 1974 was not due when the application for ejectment was filed by the appellant on 25‑11‑1974. Leave was granted to the appellant on a limited point that the interference of the concurrent findings of fact based on good and sound evidence, could not have legally been exercised under section 100 of C . P. C . , by the High Court. The appeal is heard ex parte. The learned counsel for the appellant pressed only the plea of personal need of the premises. As the appellant has a large family consisting of 16 members and the portion occupied by him, consisting of 4 rooms and a kitchen, is insufficient for their living and he had no other dwelling. It is a matter of record that Subhan, the son of the appellant (landlord) is dead and his family live in a separate house, even if the family of the deceased consisting of 7 members is excluded, it would not make much difference as the remaining 9 members are putting up with the appellant. In addition, the appellant has 4 married daughters, they are also quite often visiting their parents and staying with them. The second appeal filed by the respondent in the High Court from the judgment and order passed by the first appellate Court, concluded by finding of fact viz, that the appellant bona fide B required the demised premises for the purpose of his personal use. In view of the concurrent findings of the two Courts, no second appeal lay to the High Court under sections 100 and 101, C . P. C . In the result, we would allow the appeal with no order as to costs, set aside the impugned order of the High Court and restore the order of the Rent Controller dated 14‑10‑1978. M.I. /A‑191/S Appeal accepted