1994SCMR1881 (PLP)

‑‑‑‑S. 17‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Personal bona fide need of landlord‑‑‑Acquisition of another property pending appeal would not bar or invalidate ejectment order already obtained by landlord‑‑‑Exact location of newly‑acquired property and its adequacy to meet requirements of landlord had not been established‑‑‑No case was made out for leave to appeal. Shah Abdur Rashid, Advocate instructed by Anwar M. Mir, Advocate‑on‑Record (absent) for Petitioners. M. Munir Peracha, Advocate instructed by Ch. Akhtar Ali, Advocate -on‑Record for Respondents. Date of hearing: 29th January, 1994. SHAFIUR RAHMAN, ACTG. C.J: ‑The successors‑in‑interest of the tenant under order of eviction from a shop seek leave to appeal against the judgment of the Peshawar High Court dated 1.2‑10‑1993 whereby their regular first' appeal against an order passed by the Cantonment Rent Controller was dismissed.

2. The landlords moved an application before the Cantonment Rent Controller under section 17 of the Cantonments Rent Restriction Act seeking eviction of the predecessor‑in‑interest of the petitioners from shop No. 2, 29‑The Mall, Peshawar Cantonment. A number of grounds were taken for seeking eviction but the one which needs to be considered in this petition is issue No.9, whether the suit shop is required by petitioner No.3 for his personal use in good faith? On this issue one of the brothers and attorney of Muhammad Amin of whom the shop was needed appeared and stated about his need. No question in cross‑examination was put challenging his bona fide need. The Controller passed an ejectment order and appeal against it also failed. Hence this petition for leave to appeal.

3. The three grounds taken up before us are that not all the landlords joined in the petition for eviction. Some, particularly the ladies, were let out. Such a petition according to the learned counsel was not competent. The second ground taken was that neither the bona fide of Muhammad Amin nor his need was adequately established on record. Finally it is contended that during the pendency of the appeal the landlords had got vacated after protracted litigation another commercial premises which can be utilised for the purpose of satisfying the need and for that reason they were not entitled to an eviction order.

4. As regards the first objection we do not find that it was raised at any earlier stage. If it had been raised at an appropriate stage either rectification would have followed or a determinative findings would have been recorded by the Controller and the High Court. Bedsides such a question has been decided against the petitioner in "Parvaiz Akhtar v. Dr. Muhammad Ahsan and others" (PLD 1988 SC 734) noted in "Muhammad Zaman v. Hasb‑un‑Nisa and I another" (1991 SCMR 1307).

5. As regards the need of Muhammad Amin in para. No. 5 of the Eviction Petition the following averments were, made:‑‑ "That the shop in question is required by petitioner No.3 for his personal bona fide use. He wants to start his business therein. The petitioners are ready to furnish security to this effect for the satisfaction of this Honourable Court." In reply to this what the petitioners stated was as hereunder:‑‑ "Para. 6 is wholly concocted and fabricated. One the deceased respondent never committed any default, damage, additional alteration and also the petitioners did not require the property in question in good faith nor they have asked the deceased respondent before this petition: Apart from a vague denial when the attorney and brother of Muhammad Amin appeared and made a statement with regard to the need no question was put to him. In this background of the record the contention now sought to be raised is without foundation.

6. The acquisition of another property pending appeal does not bar or invalidate ejectment order already obtained by the landlords. Besides the exact location and its adequacy to meet the requirement of the landlords has not been established.

7. No case is made out for leave to appeal and the same is refused. AA./T‑98/S ‑ ‑ ‑ Leave refused.