1994 PLP 2032 (SCMR)

Tahir Bashir Amin, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents. Date of hearing: 11th October, 1993. FAZAL ILAHI KHAN, J.‑Leave to appeal is prayed for by the tenant against the judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 4‑5‑1993; whereby the landlord's appeal was accepted and the order of Controller of Rent, dismissing the ejectment petition, was set aside. Tariq Amin and six others, hereinafter referred as the landlords, on 1‑9‑1990 brought the present ejectment petition under section 17 of the Cantonment Rent Restriction Act, 1963 for the petitioners' ejectment from the premises No. 46, Bank Road, Rawalpindi Cantonment in the Court of Controller of Rent, Rawalpindi. It was' alleged that the premises in question were rented out by Naeem Yamin on' behalf of the legal representatives/heirs of Muhammad Yamin deceased, the original owner, on payment of Rs.1,200 per month. In a civil suit filed by some of the L.Rs. for separate possession through partition of the properties, left by the deceased, was decreed on 17‑3‑1988. The premises in question in possession of the petitioner fell into the share of the respondents and as such the petitioner became their tenant by operation of law. In spite of several requests made to the petitioner for payment of rent to them he started depositing the rent since April, 1988 with the Controller of Rent and that too in the names of those who had been left with .no interest whatsoever in the property. The petitioner, . therefore, defaulted in the payment of rent. It was further alleged that respondents are living and carrying on business under the name and style of "ladies home classes" in rented premises No: 334/1, Lane No. 5, Peshawar Road, Rawalpindi Cantonment and that the landlady of the said premises had filed an ejectment petition against them. The landladies in this situation bona fidely need the premises (which consists of shops and residential portion) for their own use. Moreso when they neither own any other property nor : re in occupation `of any other premises for their residence and for carrying on' their business. The ejectment petition was resisted by the petitioner in written statement in which the joint ownership, the rate of rent and the tenancy created by Muhammad Yaseen was not denied but several legal factual pleas were raised to the ejectment. It was admitted that on the death of Naeem `Yamin he started depositing the rent with the Controller of Rent. Regarding the respondents' personal need it was stated that the shops are of small size and are situated on the main road,‑ therefore, these are not suitable for the respondents' residence and business. That the alleged petition for ejectment brought against the respondents by their landlady is fake and managed collusively in order to create a cause of action for seeking the petitioner's ejectment. Various issues were framed in the light of the pleadings of the parties of which issue No. 1 pertaining to the landlords' personal need in good faith is the main issue in the context of the present dispute. After recording the evidence of the parties the landlords' evidence was not found convincing as compared to that of the tenant the learned Controller of Rent decided the issue against the landlords and dismissed the ejectment petition. The learned High Court in appeal filed against the judgment of Controller of Rent after reappraisal of the evidence in the case set aside the finding on the issue, accepted the appeal and in consequence of acceptance of the appeal ordered the tenant's ejectment from the suit premises. We have heard the learned counsel for the parties and perused the record. It cannot be denied that the main issue; whether the premises are bona fidely required by the landlords for their personal use, is that of fact and the finding arrived at by the High Court is not open to interference in absence of any misreading or non‑reading of evidence or some other legal infirmity vitiating the judgment. The learned counsel for the petitioner, in advancing his case of misreading contended that the cause of action for seeking the tenant's ejectment from the suit premises was non‑existing as the ejectment petition filed against the landlords for their ejectment from the rented premises under their occupation had been dismissed and that it was never revived. It was further contended that the suit premises are commercial in character and cannot be converted into residential without approval of the competent authority. It was further contended that in view of the area of the premises it can by no stretch of imagination be used for residence‑cum‑commercial purpose. The aforementioned contentions of the learned counsel for the petitioner have got no force. One of the landlords who appeared before the Rent Controller has clearly stated that petition for ejectment against them was dismissed for non‑prosecution and it was not revived because parties had reached at an understanding in that case with their landlord that they would vacate the premises and hand over its possession as soon as they get possession bf their own premises from their tenant. As for as the character of the suit premises is concerned it has been set out in para. 5 of the ejectment petition that the suit premises "which, consists of shops and residential portion" is bona fidely and in good faith required for their personal need. The above averment has not been specifically controverted in the written statement nor the landlady appearing as her own witness was cross‑examined on this point. Furthermore, the respondents' witnesses when asked in cross‑examination that portion of the suit premises is residential and part of it commercial, by large, they showed their ignorance of the fact. No efforts were made to substantiate their plea through the Cantonment Board Record. With regard to the suitability of the premises no objection can be raised on the facts of the case. Admittedly the landlords/respondents are in occupation of rented premises and have been threatened to vacate the same, therefore, faced with the situation their bona fide cannot be challenged and the premises‑being of composite nature and need found to be, bona fide it is the landlord's outlook which is to be preferred and not that of the tenant specially in presence of the penal provision in the Act in case the premises are not occupied by the landlord. For all these reasons we find no merit in this petition and dismiss the same. The petitioner is however, allowed a period of 4 (four) months from today provided he undertakes to deliver the vacant possession of the premises to the landlord on the expiry of such period. AA./M‑1970/S Petition dismissed.