2005 PLP 852 (CLC)

An ejectment petition was filed by the respondent qua Khokha No.61 comprising House No.F/1130 Mohallah Sareen, Azam Cloth Market, Lahore against the appellant on the ground that the premises was required in good faith for erection of the building for which purpose there existed a sanctioned plan by virtue of a decree of the Civil Court. By filing reply the ejectment petition was contested which gave rise to issues initially framed and additional issues added later on. On perusal of the evidence that was led before the learned Rent Controller ejectment order was passed on 20-3-2002, whereagainst appeal preferred by the appellant was dismissed by the learned Additional District Judge, Lahore on 3-6-2003, whereagainst S.A.O. No.122 of 2003 was filed before this Court. In view of the grievance of the appellant that his application for additional evidence had not been considered by the Appellate Court the appeal was remitted to the learned First Appellate Court on 28-4-2004. The appeal then was heard by the learned District Judge, Lahore who has dismissed the same through judgment, dated 14-10-2004 which has given rise to this second appeal.

2. During the pendency of this appeal, C.M. No.159/C of 2005 has been filed by one Mst. Kausar Shaheen to be impleaded as party on the ground that the respondent was not the owner of Khokha (Cabins Nos.61, 62 and 63) and the matter was sub judice before the Civil Court.

3. The learned counsel for the appellant contends that while the application for additional evidence filed by the appellant had been allowed by the learned Appellate Court, another application for permission to take a ground in appeal filed by him regarding the institution and pendency of the suit filed by Kausar Shaheen against the appellant, respondent and two others and further inquiry be held by this Honourable Court or through the learned Rent Controller for a correct, just and final decision of the ejectment application and the above noted appeal was not adverted to and has remained unconsidered, thus the matter may be remanded to the Appellate Court for that purpose. It is further contended that the respondent had failed to establish his bona fide who had according to him failed to prove Issue No.1. It is contended that an essential question as to the resources of the respondent for raising building was illegally disallowed by the Rent Controller. He has relied upon Abdur Rashid and others v. Ghulam Dastgir 1981 SCMR 1087 and Ch. K.A.M. Bajwa and 2 others v. Asghar Ali and 3 others 1987 CLC 2256.

4. The learned counsel for the respondent has supported the concurrent view taken by the Rent Controller and the Appellate Court qua findings on Issue No.1. It is contended that any such application being referred to by the learned counsel for the appellant which remained undisposed of, does not in any way affect the result of the litigation nor has prejudiced any right of the appellant. It is contended that the suit filed by Mst. Kausar Shaheen will have its own fate to be decided by the Court seized of the same. According to him mere pendency of the suit will not entitle Mst. Kausar Shaheen to be impleaded as party in these proceedings. In order to show that Issue No.1 has rightly been decided by the Courts below, reference has been made to Azizur Rehman v. Pervaiz Shah and others 1997 SCMR 1819, Sh. Abdul Aziz and others v. Kh. Hasan Joo and 5 others 1981 SCMR 924 and Haji Allah Ditta v. Mst. Shahzadi Bilqis and another 1980 SCMR

41. According to the learned counsel since the appellant was admittedly tenant under the respondent, he cannot take any different stance. Reference has been made to Madrissa Darul Uloom Al-Baqiat-ul-Salehat Registered v. The Additional District Judge (Appellate Court) and another PLD 1992 SC 401, Muhammad Saleem v. Waqf Muhammad Meher Elahi through Mutwalli 2003 YLR 3304, Muhammad Ishaq v. Syed Muhammad Zubair 1996 MLD 797 and Muhammad Yousaf Butt v. Muhammad Ali and another 1992 MLD

976. A

5. The main thrust of the contention of the learned counsel for the appellant centers around the finding returned by the Rent Controller and the Appellate Court on Issue No.1. That issue was Whether the petitioner requires the rented premises in good faith and bona fide for erection of building ? In view of the deposition that was made by the respondent, who stated on oath that he wanted to construct the premises for which purpose he had sanctioned plan, the bona fide of the respondent was believed by the Rent Controller who returned the finding on the said issue in his favour. The learned Appellate Court has even after permitting the appellant to produce additional evidence, on appreciation and appraisal thereof, reached the conclusion that As far as the steps required to be taken y the respondent to advance his plan for reconstruction are concerned, it is also evident from the record because in the year 1975 he submitted his site plan to the Corporation which was not sanctioned. Then he contacted the Lahore Development Authority and then Corporation and ultimately filed a suit before the Civil Court. It means that the respondent-landlord was very much serious in getting the site plan sanctioned wherefrom his bona fides are reflected. What else the steps he could have taken because he waited for getting the site plan sanctioned for a long time and made his every effort to achieve his object. So the accumulative effect of the above mentioned circumstances and the efforts made by the respondent lead me to the only conclusion that the site in question is bona fidely required by the respondent for erection of a building, of which he has got every right because he or his father has not committed any sin in renting out their own property to the appellant. It was further observed that the apprehension of the appellant that the respondent does not require the disputed site in good faith for reconstruction is well safeguarded by the Rent Restriction Ordinance itself . Thus, the findings on the vital issue are concurrent. So far as the appreciation of the evidence and view formed about the same by the Appellate Court is concerned, there is no justification to interfere with such a due and proper appraisal of the evidence. No misreading and non-reading of any material piece of evidence which could impair the legality of the findings has been shown to have been made by the Courts. Insofar as the legal position obtaining in the matter is concerned, the respondent landlord has successfully proved his bona fide for reconstruction. As mentioned above and noticed by the learned Appellate Court in its judgment the respondent had to make strenuous efforts and wait for a long time for the sanction which he got by virtue of a decree of the Court. Undoubtedly, the efforts made by him for that purpose itself are indicative of his bona fides and good faith and should dispel any doubt or apprehension about the same. Moreover, the law itself takes care of such situation and provides safeguards. The concurrent findings thus, do not call for any interference by this Court in second appeal. A

6. The grievance of the learned counsel for the appellant about the non-disposal of another application for further inquiry by the Appellate Court has been found of no worth. If at all any dispute about the property is going on between the respondent and Mst. Kausar Shaheen that will be decided by the forum seized of the same but so far as appellant is concerned, he undoubtedly, was inducted into the premises as tenant and continued to enjoy the said status and cannot plead denial of his title. Such an application thus, would not have caused any material difference as to the fate of the appeal. Likewise, even if a particular question had not been allowed to be put, it has no bearing.

7. Insofar as the application of Mst. Kausar Shaheen to be impleaded as party (C.M. No.159/C of 2005) is concerned, the same stands disposed of with the observation that it will be the ultimate fate of the suit that is pending before the Civil Court at Lahore which will bind the parties and orders passed in these ejectment proceedings would not adversely prejudice the rights of the parties to be determined by the Trial Court. In view of the above, this appeal is without merit which is dismissed accordingly. The learned counsel for the respondent has stated that so long as stay order in the suit filed by Mst. Kausar Shaheen remains in the field, ejectment order will not be executed. Besides this assurance, it is observed that while executing the ejectment order, the learned Rent Controller will keep in view that the appellant was doing some business in the Khokha, and will give him reasonable time to vacate the same. M.H./A-401/L Appeal dismissed.