1993CLC53 (PLP)

Muhammad Rafiq Chaudhry, respondent, of this appeal is the owner of property which consists of two rooms on the first floor of property bearing No.S‑90‑R‑10, Urdu Bazar, Lahore, which is on rent with Mst. Naheed Ghafoor, the appellant. Previously the respondent filed an ejectment petition against the appellant on the ground of bona fide need for reconstruction but the same was dismissed by the learned Appellate Court vide order dated 22‑11‑1986. The respondent filed then ejectment petition on 7‑12‑1987 on the grounds of personal need, default in payment of rent and causing of damage to the property and impairing its value by the petitioner. This application has been contested by the petitioner and was dismissed vide order dated 14‑1‑1991 passed by the learned Rent Controller, Lahore. Landlord's first appeal has succeeded and learned Additional District Judge, Lahore vide order dated 27‑6‑1992 has passed an order of ejectment against the petitioner‑defendant on the ground of personal need of the landlord. The tenant has now come up in this second appeal.

2. Learned counsel for the appellant has raised the following contentions in support of this appeal:‑‑. (1) that it is established on the record that the respondent No.l is in occupation of upper portion of the same building wherein the disputed premises are situated and unless and until it is alleged and established that the upper portion is not sufficient for the need of landlord, ejectment order could not have been passed; (2) that the respondent landlord has failed either to allege or prove that the vacant portion is not sufficient for his needs; (3) that son of the landlord for whose alleged need the premises in question are being got vacated has made no. arrangement for the opening of Computer College; (4) that previous application on the ground of reconstruction having been dismissed on merits, the second application even on a different ground is not maintainable and at any rate shall be deemed to be mala fide; (5) that in fact the landlord wants to sell the property and he is not in a bona fide need thereof and (6) that the landlord has filed ejectment petitions against various tenants of the same floor and one of such applications has already been dismissed whereas the others have been accepted, and therefore the landlord cannot be said to be of a bona fide need of occupation of the premises in question.

3. In support of the arguments addressed by the learned counsel for the appellant, learned counsel has referred to the evidence produced by the parties and has also relied upon the following judgments reported as Fasahat Ali v. Mst. Noor Jehan Begum (1991 CLC 1902), Abrar Ahmad Khan v. Jamil Ahmad Khan (1991 CLC Note 35), Mst. Ashraf Alia v. Dr. Asif Majeed (1991 CLC 53); Adamjee v. Haji Ghulam Ali (1986 CLC 2376), Habibur Rehman v. Faqir Muhammad (PLD 1983 Lah. 425), Jamil Ahmad v. Abdul Karim (1984 CLC 1815); Syed Farzan Rizvi v. Khaldur Rehman (1981 CLC 1223), Seth Abdus Sattar Haji Ahmad v. Sh. Fazal Hussain (1986 PLD (W.P.) Lah. 733); Gullah Jan v. Ghulam Habib etc. (1983 CLC 1149), Dr. A.R. Khan v. Muhammad Ishaque (1972 SCMR 437), Muhammad Saddique v. Mistri Muhammad Aslam (PLD 1975 Lahore 308), Malik Muhammad Ramzan v. Messrs General Iron Stores etc. (1984 CL.C 2418) and Abdulah v. Hasan Abbas 1985 CLC 892,

4. Elaborating his arguments in the light of the judgments referred to by the learned counsel for the appellant it has been contended that as admittedly ‑the landlord is in occupation of the upper portion of the same premises and as admittedly he is seeking ejectment of all the tenants of the same floor on which the premises in question are situated, need of the landlord is proved to be mala fide and at any rate he cannot‑get an order of ejectment passed in his favour unless and until he can show that the premises presently occupied by the landlord are insufficient for his needs. Learned counsel has further contended that dismissal of the previous application although the same was dismissed one year prior to the filing of the application, militates against the bona fides of the landlord and is in fact a bar to the filing of present petition. It has further been contended that in fact need of the landlord is mala fide and he wants to sell the properly in question inasmuch as there is absolutely no arrangement for the purpose of establishment of a college by his son. 5. 1 have considered the arguments addressed by the learned counsel for the appellant and have gone through the record as welt as the judgments referred by the learned counsel for the appellant. Argument of the learned counsel to the effect that in view of the occupation of the landlord of upper portion of the building and in view of the filing of ejectment petitions against this bona fides and he cannot get the tenant ejected unless he proves that his occupied premises are insufficient for his need is misconceived. It is an established proposition of law that it is the choice of the landlord to decide as to which portion is needed by him as held in 1973 SCMR 185, Sabu Mal v. Kika Ram alias Heman Das. Upper portion of the building definitely will not be convenient for college as compared to floor in question. Filing of ejectment petition against all the tenants of the floor speaks volumes about bona fide need of the landlord for the floor in question. He as well as his son have appeared as witnesses and have stated on oath that the premises in question are required by them for the use and occupation of his son. In support of the bona fides of the landlord, there is a statutory proviso which guarantees the restoration of possession to the tenant in case of failure of the landlord to occupy the premises got vacated on the ground of personal need. It is the landlord who is the best judge of his need and the place where his need can be satisfied, consequently, it cannot be said that need of the landlord as reflected in the application and evidence, is not bona fide. There is absolutely no evidence on the record to prove that the landlord wants to sell the property in question. Even otherwise, a tenant cannot pre‑empt the right of sale of an owner and cannot ask for the dismissal of the ejectment petition filed by a landlord merely on the assumption that the landlord may dispose of his r property. Argument of the learned counsel to the effect that the present ejectment petition is not maintainable or is mala fide due to the dismissal of the previous application is also misconceived. There is a gap of a period of one year between the decision of the previous application and filing of the present petition which has been filed entirely on a different and fresh cause of action, consequently, dismissal of the previous application is neither a bar against the filing of the present petition nor in any manner militates against the bona fide need of the landlord. Reference in this behalf can be made to case of Muhammad Ashfaq v. Asghar Ali (1989 SCMR 1315).

6. It may be mentioned here that it has been specifically explained that there is a defect in one eye of the landlord's son and running of computer college is the only profession which he can adopt and therefor no fault can be found with the expressed need of the landlord. Making of arrangements for opening of college is not at all a precondition for filing of an ejectment petition on the ground of that need.

7. I do not consider that there is any misreading/non‑reading of evidence in the case in hand nor does it appear the judgment rendered by the learned First Appellate Court suffers from any legal infirmity. Judgments referred by the learned counsel for the appellant are distinguishable on facts and hence it cannot be said that the impugned judgment is not in accord with settled law on the subject. Resultantly, this second appeal is dismissed in limine. AA./N‑103/L?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.