2010 PLP 365 (CLC)

SHAHID ANWAR BAJWA, J.

Ejectment Application No.1770 of 1998 was filed by the present petitioners against the predecessor-in-interest of the present private respondents in November, 1998. Ejectment was claimed on grounds of default from January, 1978 till filing of the ejectment application, impairment and damage to the property and bona fide personal need. The application was dismissed by the Rent Controller vide order dated 8-3-2002 and the order was upheld by the Appellate Court vide its order dated 6-10-2005. Earlier to this ejectment application another ejectment application had been filed in respect of the same property against the same tenant and that ejectment application though was allowed by the Courts below however, the Supreme Court allowed appeal and set aside concurrent judgment of the two Courts below. Both the learned counsel who appeared, submitted that the earlier application had been filed on ground of impairment and material damage to the property.

2. Learned counsel for the petitioners submitted, that he is not pressing ground of damage/impairment and also ground of default and would argue only ground of bona fide personal need. He submitted that this ground has been stated in the ejectment application as well as in the affidavit-in-evidence. He further submitted that it is a right of the landlord to decide as to his need and as to suitability of any particular premises for his or his family's needs. He relied upon Mazharuddin v. Hussain Bakhsh and 2 others, PLD 2005 Kar. 205, Sultan Ahmad, v. Additional District Judge-1, Karachi South, 2006 CLC 99 and Muhammad Anwar Azim and another v. R.I.G. Education Board through Directress/General Secretary PLD 2003 Kar.

34. Learned counsel for the respondent submitted that another hotel in the same premises is available to the landlord and therefore it is available to the landlord to seek eviction of the present respondent. She also submitted that this case has been filed quick on the heel on dismissal of earlier case by the honourable Supreme Court. She further submitted that the property is owned by a number of person and it has not been stated as to which one requires the property and partition of property has been pleaded. She relied upon Haji Abdullah Jan v. Anwar Khan, PLD 2000 SC

787. She further submitted that this constitution petition was filed in 2005 and no attempt for its expeditious disposal has been made for four years.

3. I have considered the submission made by the learned counsel and have also gone through the record as well as case-law cited by the learned counsel.

4. As far as, question of using another business premises, Muslim Hotel, it was stated in the cross-examination that it was admitted as correct by the Applicant No.1 in his evidence that Muslim Hotel is in the front of the building and that accommodation in Muslim Hotel is almost the same. He further stated "It is incorrect that Muslim Hotel will be vacated in the near future." Therefore, the Muslim Hotel was not available as vacant property when ejectment application was filed. It is choice of the landlord to decide as to which property is more suitable to his requirements. Thus, where the landlord owns more properties in the same building or in the same locality, the landlord (sic) would be more suitable to his requirements. Neither the tenant nor Court can sit in judgment over such a right of, and exercise of such a right, by the landlord. However, when any other property is vacant and available, it is essential for the landlord to state as to how and on what basis the available property is not suitable to his requirements. But this is not the case here. Here at the time of filing of ejectment application Muslim Hotel was not a vacant property. Therefore, factum of existence of Muslim Hotel cannot knock out case of the landlord.

5. It is true that this ejectment application was filed after decision was rendered by the Supreme Court in the earlier matter. But the earlier matter was in respect of only damage/impairment. Since the learned counsel for the petitioners has given up that ground I do not think earlier judgment of the Supreme Court would stand in his way.

6. However, the third submission urged by the learned counsel for the respondent carries weight. Haji Abdullah Jan's case is on the question of co-owners. The following was observed:

"(12) Coming to the merits of the case, it is noted nothing concrete has been brought on record to show that the property was actually portioned among the co-owners nor even portions to be owned by the co-owners, are shown. The evidence was insufficient to justify eviction of the respondent on the ground of alleged bona fide personal use. Although a plea was taken that building was to be reconstructed having two shops and a restaurant in the portion in possession of the respondent but such substantial evidence to that effect was missing."

7. In the present case, the petitioners are Hafiz Ferozuddin, his wife and his brother. They were also three applicants in the Court of Rent Controller. Only Hafiz Ferozuddin filed his affidavit-in-evidence and in respect of personal bona fide need he stated as under:

"That I submit and say that the said shop is required for our personal bona fide use and for use of our/my son and we want to start our own business in the said shop, the said shop is very much and most suitable for our need and for our son."

8. During cross-examination he admitted that he had three sons and their respective ages were 27 years, 20 years and 15 years. He also admitted that younger son is a student while others are engaged in their businesses. He stated that they did not have any business place. He further stated that he deals in the business of threading at Shah Faisal Colony. He admitted that his brother and co-petitioner has three sons and their ages respectively were 29 years, 26 years and 13 years and the elder two sons were also doing business. There has not been any partition of the property. There is no statement whatsoever as to who is to conduct business or whether all of them have jointly decided to conduct business. Applicants Nos.2 and 3 did not appear as witnesses and there is no statement that he had been authorized by the co-owners while all the co-owners separately signed the ejectment application; the other co-owners did not appear as witness. All these circumstances hale correctly lead the Courts below to coming to the conclusion that bona fide personal need had not been established. I do not find any reasons for interfering with the conclusion recorded by the Courts below. Consequently this writ petition is dismissed in limine. M.H./F-28/K Petition dismissed.