2007 PLP 285 (YLR)

JAWWAD S. KHAWAJA, J.

The respondents/landlords filed an ejectment petition against the appellants/ tenants in respect of a shop in a building known as Khalil Plaza, Joharabad. The said ejectment petition was filed on the grounds of default in payment of rent bona fide personal use of the respondents and for reconstruction. The petition was resisted by the appellants. The learned Rent Controller framed six issues on which the parties led evidence. Vide order, dated 10-10-2005 the ejectment petition was dismissed by the learned Rent Controller. The learned Appellate Court has; however, allowed an appeal filed by the respondents vide order, dated 13-2-2006 and has ordered the ejectment of the appellants. The sole ground on which the ejectment has been ordered is that the respondents require the shop for personal need.

2. Learned counsel for the appellants, firstly, argued that only respondent No.3 Muhammad Iftikhar appeared as A.W.2. He admitted in his evidence that there were six other shops which were got vacated but had been let out by the respondents. Learned counsel for the appellants contended that his testimony of A.W.2 disclosed the ejectment petition had not been filed for bona fide personal use. It was further argued that even the learned Appellate Court did not give a finding that the shop was required by the respondents bona fide. It was merely held that the respondents/ landlords had the right to choose which particular shop they wanted for themselves for their own use.

3. Learned counsel for the respondents/landlords argued that it was for the landlords to pick and choose from amongst the shops in Khalil Plaza because they were the owners of the same. It was contended that the learned Appellate Court rightly held that the respondents could not be dictated to by the appellants as to the choice of shop which they wanted for their personal need.

4. There can be no cavil with the above submission. However, as to the contentions of learned counsel for the appellants that the respondents had got as many as seven shops vacated, but had given six of these shops on rent, does tend to support the plea of the appellants that the ejectment petition was not filed bona fide. Here I may add that Muhammad Iftikhar (A.W.2), one of the respondents, acknowledged in his cross-examination that some of the shops were got vacated by the respondents/landlords but were subsequently let out. It is also worth noting that when Muhammad Ramzan appeared as R.W.3 he categorically stated that the shop adjacent to the shop in dispute, was got' vacated by the respondents/landlords and the same had been let out ten days prior to his testimony to Chatha Electronics.

5. After hearing learned counsel for the parties and also going through the original record, I am clear that the respondents had not been able to show their bona fides. At this juncture, another aspect of the evidence on record needs to be viewed. After the respondents had purchased Khalil Plaza a notice (Exh.A-2) on behalf of the one of them, namely, Hafiz Ismail was addressed to appellant No.1. In the said notice, it was averred that the shop, occupied by the appellants, was required for the personal need of Hafiz Ismail. Later on 23-10-2004 another notice (Exh.A-2) was issued to appellant No.2 Muhammad Ramzan. This notice was addressed on behalf of the three respondents/landlords and it was stated herein that the shop in dispute was needed in good faith by all three respondents. However, when the respondents/landlords led evidence, only Muhammad Iftikhar (A.W.2) respondent No.3 appeared as a witness. He admitted that his other two brothers (respondents herein) were gainfully employed, but he was jobless and needed the shop for his own personal need. These contradictory positions also detract from the bona fides of the respondents/ landlords.

6. Unfortunately, the learned Appellate Court has only given consideration to the fact that the respondents/landlords are free to choose the shop which they wish to get vacated and that the appellants as tenants have no say in this choice. The learned Appellate Court has not at all adverted to the aspects of the testimony which have been discussed above. The learned Court has also not concluded that the respondents are in bona fide personal need of the disputed shop.

7. In the above circumstances, the impugned appellate order, dated 13-2-2004 is not legally sustainable. The same is, set aside. As a consequence, the dismissal of the ejectment petition vide order, dated -10-10-2005 passed by the learned Rent Controller stands restored. H.B.T./M-640/L Appeal allowed.