1985 P L D 419 (PLP)

Nemo for Respondent No.

1. Fateh Muhammad Nayyar for Respondent No.

2. Date of hearing: 12th December, 1984. This judgment will also dispose of Writ Petition No. 44 of 1984 as both have been preferred by a vanquished landlord who sought, on the ground of personal need, ejectment from three contiguous shops including the two occupied by the present respondent. Of course, the third petition has succeeded.

2. It was stated in the petitions that after having come back from Iran due to war, the petitioner wanted to have these three shops, all at one time, to establish his own business of agency from Messrs Wazir Ali Industries for using them as godown, show‑room and office. He explained that he was lying idle for over a year and that the respondent despite having his own six shops in Jhelum itself was not prepared to vacate them.

3. The petitions were resisted pleading that in so far as the petitioner holds an International and British passport, he could be anywhere in the world any time and further that despite Iran‑Iraq war, he could stay on there like many more Pakistanis It was added that even earlier he had been visiting Pakistan temporarily and that the plea of personal need was a hoax. Still further it was urged that during his stay at Jhelum, many of his shops and godowns had been re‑let by him on higher rents. It was denied if the respondent possessed six shops, though it was conceded that his three sons were doing their individual business presumably in them. The Rent Controller dismissed the petitions on the grounds inter alia that the petitioner had never done business earlier, was considerably aged to do it, and that a shop vacated by Hafeez, a godown by Faqir and a house by Jumma Khan in the meantime would preclude him from claiming ejectment of the respondent. The learned District Judge thought almost on the same lines subscribing to the view that as the petitioner did not occupy any of those shops, his claim was not bona fide.

4. Assailing the findings, Mr. Ghazi for the petitioner, contended that the Courts below miserably failed to keep in view the test of "suitability" of the premises available to the petitioner and that in law the sole arbiter to determine it was the petitioner himself exercising his prerogative in choosing premises to meet the needs of his intended business, and that in a way the law did not leave it to the Court to make it justiciable in an objective manner. He placed reliance upon Rehmatullah etc. v. Sh. Muhammad Yaseen etc. N L R 1980 A C 228 and Abdul Qudus v. District Judge, Sialkot and others 1982 C L C 2355. He added that a letter from Messrs Wazir Ali Industries placed upon the record giving him an offer of agency or wholesale dealership was entirely ignored by the Courts below and that the conclusion drawn against him was opposed to the evidence brought on the record.

5. He submitted that the petitioner explained in detail that the small shop vacated by Faqir was not adequate to meet his needs although it may have been situated at a lucrative point. Likewise he added that vacation of the shop from Hafeez, through the success of the third ejectment petition could not be made to fall under section 13(3)(ii)(b) of the Rent Restriction Ordinance as it was not without joining the present two "suitable for the needs". In the same way, the house vacated by Juma Khan was shown to be off the point.

6. In reply, counsel argued that concurrent findings of the Courts below related to a question of fact and that the vacation of as many premises during the courser of litigation, or even before it, precluded the petitioner in law from claiming his ejectment.

7. I must say with respect that the Courts below did not make an objective analysis of the problem. They somehow felt subjectively that the vacation of a shop' through the third concomitant ejectment petition or left by another tenant was sufficient to disentitle the petitioner frost ejecting the present respondent. It is not so. The law gives him the choice as a matter of prerogative and if he says that he needs three of them the same time, it has to be considered rather in a pragmatic manner. He had been in Iran and may not be forced to go back simply because he happened to hold an International or British passport. The plea was preposterous. He seems to be possessed of necessary funds so as to take up a sizeable business. The law does not require that he should establish as a hard fact that he has already embarked upon such a venture. The stage relates to disclosure of his intention. It is evident that without sufficient accommodation he may not be able to establish the precise nature, quantum or extent of his proposed business. The letter placed upon the record seems to have been entirely ignored practically for no good reason. The Courts below did not advert as much to these aspects and appeared to have misdirected themselves on the point of bona fide requirements. Sub‑clause (b) of clause (ii) of subsection (3) of section 13 (ibid) uses the phrase "suitable for his needs" as key words suggesting to leave it to the landlord's own subjective consideration. It may not be possible to insist upon a landlord to occupy a smaller shop which somehow has become available and deny him the larger accommodation though he has means to go in for a better and more prosperous business. This is why it is called the landlord's own privilege or prerogative which by its very nature was not supposed to be left to much critical appreciation. The findings of the Courts below do not conform to this acid test and appear to have proceeded on considerations not much relevant to the point. Those cannot be sustained.

8. The writ petitions are accepted. The impugned orders are held to be void and ineffective. The cases are sent back to the learned District judge for re‑decision of the appeals on these lines. Parties to appear before him on 26‑1‑1985. H . B . T . Writ petition accepted.