1979 PLP 164 (CLC)

3. In this case this is the third round of litigation since 1970 The first application for ejectment filed by the respondent against the appellant was dismissed on a compromise according to which the respon dent agreed to the enhancement of rent from Rs. 60 to Rs.

70. This is proved by Exhs. R. 6, R. 7 and R.

8. The second application was filed within three months thereafter in which even the compromise was challenged on the ground of default and requirement of the property for personal use of the respondent. This application was dismissed on the 8th June, 1971, vide et Exh. R.5.

4. During the pendency of the second application the petitioner got sanctioned a site plan for re-constructions of the entire building consisting of three shops and the first floor above them on the 7th November, 1970. He filed the present application on the 18th October, 1971, on the grounds of default, requirement for personal use and bona fide requirement for reconstruction.

5. The application was contested inter alia on the ground that it was barred by the principle of res judicata. The learned Rent Controller found the issue of res judicata against the respondent. He found the issue of requirement for re-construction against him and dismissed the application on the 30th May, 1976.

6. The respondent filed an appeal which was allowed by Mr. Abdul Basir Qureshi, Additional Distract Judge, Gujranwala, only on the ground of requirement for reconstruction.

7. Hence this appeal.

8. The learned counsel for the appellant submitted that the applica tion is clearly mala fide and filed with an extraneous object of enhancing the rent by pressurising the appellant. He drew my attention to the fact that the evidence had not been discussed in that light by the learned Additional District Judge.

9. He further argued that the learned Additional District Judge has not taken into consideration the above history of the case which indicates the respondent's determination to pressurise the appellant either for enhancement of rent or to eject him. He further argued that it was not possible for the respondent to re-construct the building since one of the shops and the floor over it was not in possession of the respondent but was in possession of a mortgagee.

10. The learned counsel for the respondent, on the other hand, submitted that the order of the learned Additional District Judge is based upon a finding of fact. He stressed upon the requirement of his client.

11. After hearing the learned counsel for the parties I am of the view that the finding of the learned Additional District Judge cannot be considered to be a finding of fact which may be binding upon this Court. There is evidence that the object of the respondent is to enhance the rent which has not been considered at all by the learned appellate Court. The learned Court has also not considered the other points relied upon by the learned counsel for the appellant.

12. It is conceded in his evidence by the respondent that the third shop is in possession of Shams-ur-Rahman, mortgagee. On my query how he would reconstruct this shop, the learned counsel sought instructions from the respondent who said that that shop was with a tenant for a fixed term of seven years and since the period of tenancy had expired he might give up its possession.

13. It is clear from the evidence on record as well as the submis sions that the shop is in possession of the tenant against whom no proceedings have been taken for ejectment. If the shop is with the mortgagee, I do not see how the respondent would be able to get it vacated without recourse to law. I agree with the learned counsel for the appellant that it is not possible for the respondent to reconstruct the building includ ing the shop of the appellant.

14. This finding is sufficient to dispose of the appeal but I also agree with the learned counsel for the appellant that the attempt of the respondent has throughout been to eject the appellant by any means possible. His first application ended in a compromise but within three months he filed another application challenging that compromise as unauthorised and also on the ground of personal requirement ands default in the payment of rent. During the pendency of that application he prepared another ground for the third application and secured the sanction of the Authority for reconstruction, and within a short time after the two applications were dismissed he filed this third application not only on the ground for require ment for reconstruction but on the same old grounds which were taken in the second application. He has not led any evidence to show that the property is in such deteriorating condition that it must require reconstruc tion.

15. When confronted with this last point the learned counsel for the respondent submitted that the respondent did not lead any evidence on the point since he had applied on the ground of personal requirement also and in such circumstances it was not necessary for him to prove the condition of the shop. In any case, there is no proof that the condition of the shop is so deteriorated that it requires reconstruction. In view of this, the issue about bona fide requirement for re-construction is decided against they respondent. It is unnecessary to deal with the evidence of the appellant regarding the intention of the respondent to enhance rent.

16. The appeal is allowed with costs, the order of the learned Additional District Judge is set aside and the order of the learned Rent Controller is restored. K.M. A. Appeal allowed.