1983 PLP 1607 (CLC)

Abdul Naseer Khan for Appellant. Khurshid Anwar Shaikh for Respondent. Date of hearing: 4th October, 1982. This appeal is directed against the order of Rent Controller rejecting the Rent Application No. 1002/76 of appellant filed on the ground of personal and bona fide requirement of his son Ibne Hassan. It was stated in the application that son of the appellant had returned from abroad after having taken training in automobile and wants to set up his business in the two shops occupied by the respondent. It appears that simultaneously another Rent Application No. 1003/76 was also filed by the landlady appellant against another tenant of the same building in respect of other 2 shops and the personal and bona fide requirement was pleaded in paragraph 3 of that case in the following terms ; "That the applicant requires the rented premises in occupation of the opponent for her personal bona fide use and for the use and occupa tion, of her grown-up son who is now qualified as Mechanical. Engineer to whom she wishes to set up in allied business of Engineering etc, and support the family members, of the applicant which consists of seven family members, for which a legal notice was also served upon the opponent but to no effect hence this. application (copy of the notice is attached and marked as annexure `B'). Rent Application No. 1003/76 appears to have been compromised between the landlady and the tenant and as a result of compromise possession of one of the shops occupied by the tenant in R. C. 1003/76 was surrendered to the appellant during the pendency of R.C. 1002/76 : and it is now stated in this appeal by the respondents that the other shop occupied by the tenant in R.C. 1003/76 had also been vacated and possession handed over to the appellant5 during the pendency of this appeal. The applicant examined herself and hers on in support of the case that the premises occupied by the respondent is required by her for personal and bona fide needs of her son Ibne Hassan. In rebuttal the respondent examined himself and one Altaf Hussain and Aftab Ahmad Naqvi. The Rent Controller after hearing the parties came to the conclusion that the personal and bona fide requirement urged by the appellant was not established and he accordingly dismissed the application for ejectment. The main consideration which prevailed with the Rent Controller while dismissing the application was that the landlady had filed another Rent Application No. 1003/76 in which the ground of personal and bona fide requirement were the same as are pleaded in R.C. No 1002/76 which was compromised between the parties and as result of the compromise the landlady got possession of one of the shops occupied by another tenant Mahmood Ali, but this shop was admittedly not utilized by the landlady for establishing her sons in the business but was utilized for the purpose of providing a passage to the School which is run just behind the disputed shops. The Rent Controller was accordingly of the view that had the requirement urged by the landlady for her son been genuine she would have given the shop so vacated by another tenant to her son for the purposes of establishing his business. It has come in the evidence sufficiently that the school run behind these shops is managed and run by landlady s daughter and the landlady herself. This fact though not admitted by the appellant in her evidence is established by the evidence of the respondent the appellant s son and other witness examined in the case. The contention of the learned counsel for the respondent before me is that the Rent Controller rightly rejected R.C. No. 1002/76 as the ground of personal requirement urged in this case was identical to the ground urged in R.C. 1003/76. It is further contended by the learned counsel that the landlady appellant having received possession of one shop during pendency of R.C. No 1002/76 and other shop during pendency of this appeal and having failed to utilized these shops for establishing her son in business could not press for ejectment of respondent. I have seen the contents of 2 applications (R.C. 1002/76 and 1003/76) filed by the appellant on ground of personal and bona fide requirement and after going through the same I am of the view that it cannot be said that the ground of personal requirement pleaded in the two cases are identical. In R.C. 1003/76 the personal requirement is urged both with regard to landlady herself and her son while in R.C. 1002/76 the personal requirement is urged only in respect of the son of landlady. It has also come in evidence that the school run behind these shops is managed by landlady and her daughters and one of the shop vacated by another tenant during pendency of R.C. 1002/76 was utilized for the purposes of providing passage to the school. In this appeal a further allegation is now made that another shop which was in occupation of tenant Mahmood Ali, has been vacated and that in the said shop the landlady has allowed her son Ibne Hassan to carry on the business of automobile. This fact has been controverter in the rejoinder fiuled by the landlady s son who was has stated that the shop which has been got vacated during the pendency of this appeal is being utilized and used by the landlady as an office for School which is behind these shops. As the fact regarding vacation of another shop during pendency of this appeal is admitted a further question arise whether in these circumstances, the landlady could maintain the ejectment application against the respondent as it is alleged by the respondent (though denied by the appellant that the shop is being utilized, by the landlady for her son for whose benefit R.C. 1002/76 was filed. Since this fact was not in existence at the time o decision of the application and the Ist appeal and, therefore, no decision could be given thereon in these circumstances, I remand this case back to the Rent Controller with the direction to hold further enquiry into the case on the basis of the allegation made in the counter‑affidavit and rejoinder filed b the parties in this appeal, that whether shop is being used by the appellant as a workshop or is used as an office of the school and whether the shop i used by the appellant's son was sufficient to meet the need and requirement of the landlady's son. The Rent Controller shall examine the question o bona fide requirement as urged in the application by the appellant indepen dently irrespective of the earlier decision in the case on the basis of fact stated above after allowing the parties to lead such further evidence as the may desire in this behalf. With these observations this appeal is allowed, the order of Rent Con‑B troller is set aside and the case is remanded back. There will be no order as to costs. Since the original application for eviction was filed. in the year 1976, 1 further direct that the Rent Controller shall make every effort to dis pose of the application as expeditiously as possible. M. Y. H. Appeal accepted.