2007 PLP 1540 (MLD)

MAULVI ANWAR-UL-HAQ, J.

On 20-3-2004, the petitioner filed an application against the respondent for his ejectment from a shop located in Islamabad urban area. The ejectment was sought on the ground of bona fide requirement for personal use and occupation of the petitioner-lady and her husband. The said allegation was denied by the respondent in his written reply. Issues were framed. Evidence of the parties was recorded. Vide order, dated 15-12-2004, learned Rent Controller allowed the application and passed an ejectment order after recording the findings in favour of the petitioner under issue No. 1 pertaining to the said requirement for personal use and occupation. A first appeal riled by the respondent has been allowed by the learned Additional District Judge, Islamabad, on 14-6-2005, who has reversed the said findings and dismissed the ejectment application filed by the petitioner.

2. Learned counsel for the .petitioner contends that the learned Additional District Judge has misread the evidence on record as also the pleadings while holding that the application was filed mala fide. Learned counsel for the respondent, on the other hand, has contended that admittedly the landlady wanted to sell the property in dispute to a third party and a suit for specific performance is pending. The precise contention is that the ejectment was sought for delivery of possession to the proposed vendee.

3. I have gone through the copies of the record. The petitioner entered in the Witness-box to state her case and made a statement on oath that the shop is bona fide required for her personal use and occupation. Correspondingly, the respondent appeared as R.W.1. Upon a reading of the said evidence, the said personal requirement is established and further she is not in possession of any other similar building in the said urban area. The learned Additional District Judge has disagreed with the learned Rent Controller and while doing so has observed that the petitioner has acted malafidely as she has concealed a fact that she has filed another ejectment petition as well. The other reason given is that it was stated by her in the witness-box that she required the shop for her husband. I find that in para.6 of the ejectment petition itself, it was stated by the petitioner that she has filed an application for ejectment regarding the other shop as well, as she needs both the shops for her personal use. Thereafter, in her very examination-in-chief as A.W.1, she has stated that the other shop also belongs to her which has been let out to one Mustafa and that she has filed an ejectment petition against the tenant as well. One has only to wonder that as to how the learned Additional District Judge had arrived at a conclusion that .the petitioner-landlady has concealed the said fact: Similar is the case with the other reason. It is in the ejectment petition itself that the shop is required for both the spouses. Apart from this fact, law as contained in section 17(4) of Islamabad Rent Restriction Ordinance, 2001, enables a landlord/landlady to get the building vacated on the ground of her personal requirement as also that of her family and as per definition of "family" given in section 2(f) of the said Ordinance, the term includes a spouse.

4. Coming to the said contention of the learned counsel, he has shown me from his brief the records of a civil suit filed by one Syed Imran Hussain Shah against the petitioner-lady for specific performance of an agreement to sell. I find that it is being contested on the ground of breach of the terms of the said contract by the said plaintiff. Learned counsel has also shown me a copy of the said agreement to sell which is dated 1-6-2001. I do not find any term in the said agreement that the lady is required to deliver vacant possession of the building to the said plaintiff. On the other hand, the condition is that the said lady would be required to get lease deed executed in favour of the said purchaser by the tenant in possession. I may further note here that even in the course of her cross-examination, she admitted that she entered into a contract for sale with the said Imran but he failed to pay the balance amount. The ejectment petition was filed on 20-3-2003 whereas the suit was filed by the said Imran on 24-1-2004. I, therefore do not find any mala fide emanating on the part of the petitioner-lady with reference to the said transaction entered into by her.

5. Writ petition is accordingly accepted and the respondent is directed to deliver vacant possession of the shop in dispute to the petitioner/landlady on or before 30-6-2007 failing which she can get the ejectment order executed and in such an eventuality, the learned Executing Court shall invoke all available process including the Police aid for execution of the said order. The records of the learned lower Courts be returned immediately. S.A.K./T-16/L Petition accepted.