1991 PLP 1217 (SCMR)

Pervaiz Akhtar v. Dr. Muhammad Ahsan and others P L D 1988 SC 734 and Sardar Khan v. Riaz Ahmad and others 1986 S C M R 1981 ref. K.M.A. Samdani, Advocate Supreme Court, instructed by Manzoor Ilahi, Advocate‑on‑Record for Petitioners. Ejaz Ahmad Khan, Advocate-on‑Record for Respondent. Date of hearing: 19th February, 1990. RUSTAM S. SIDHWA, J.‑‑‑‑Qazi Muhammad Naeem and others petitioners seek leave to appeal against the judgment of the Peshawar High Court, Peshawar, dated 20‑1‑1988 passed in FA.O. No.24 of 1985.

2. The petitioners filed an application under section 17 of the Cantonments Rent Restriction Act, 1963, against Muhammad Amin, respondent, for his ejectment from Shop No.5 situate at 29, The Mall, Peshawar Cantt. The petitioners sought ejectment on the ground that the respondent had not paid rent from October, 1976, onwards, that the respondent had made some construction in the shop without the consent or permission of the petitioners, which had materially impaired the value and utility of the shop, that the shop was required by Qazi Muhammad Arif, petitioner No.4, one of the landlords, for his personal use for running his own business and that the petitioners were not occupying any other property. The said allegations were controverted by the respondent. The Rent Controller found that the petitioners did not require the disputed shop in good faith for their personal use and that the respondent was not a defaulter. The petitioners thereupon preferred an appeal before the Peshawar High Court, where the only issue which was argued was that regarding personal need. The learned Judge who dismissed the appeal found that the respondent had given a detailed statement on oath that Qazi Muhammad Arif, one of the landlords, who had appeared as a witness, was employed in Iran and had come only on one month's leave and had again returned to Iran, that later when the respondent was further examined he had stated that the said Qazi Muhammad Arif, landlord, had settled in America and that the disputed shop was not required by the petitioners for their personal occupation and that another shop belonging to the petitioners which had been got vacated earlier, was not occupied by the petitioners for their personal use, but had been rented out again. The learned Judge held that this evidence of the respondent had not seriously been contested during the course of cross‑examination and that in the circumstances it could not be said that one of the petitioners req6ired the shop in good faith for his own use. The learned Judge further observed that two other landlords of the suit property had not joined as petitioners in the petition. He, therefore, held that since there had been no misreading of the evidence or any other legal or factual flaw in the dismissal of the petitioners' ejectment petition, he dismissed the appeal.

3. On behalf of the petitioners it is submitted that when Qazi Muhammad Arif petitioner No.4 appeared to give evidence, he was not cross‑examined as to whether he had been employed or settled in Iran or America or had come on one month's leave from there and was going to return to Iran or America, or that for the said reason he did not require the shop in dispute, or that any other shop belonging to the landlords had been got vacated which they had not occupied, but had let out the same again. It is submitted that the respondent could not take advantage of his own admissions made during his examination after the evidence of Qazi Muhammad Arif, petitioner No.4, had been recorded, without having cross‑examined the said petitioner when he had appeared earlier to give evidence. It is further submitted that any one of the joint landlords can seek ejectment. In this connection Pervaiz Akhtar v. Dr. Muhammad Ahsan etc. (PLD 1988 SC 734) has been referred. As regards the proposition that where even a shop is let out, the same does not bar a landlord's petition for seeking the possession of another, Sardar Khan v. Riaz Ahmad etc. (1986 SCMR 1981) has been cited.

4. The submissions raised by the learned counsel for the petitioners require examination. We would, therefore, grant leave in this case and direct that the appeal should be listed for hearing at an early date. The petitioners, shall furnish security in the sum of Rs.5,000 (Rupees five thousand only). The appeal shall be heard on the basis of the present record. Parties are at liberty to file such other documents as they consider fit and proper for the full and proper disposal of the appeal. AA./M‑1254/S Leave granted.