P L D 1988 Peshawar 153 (PLP)

(1) Whether petitioners have a cause of action? (2) Whether the petitioners are estopped by their conduct to file the present petition? (3) Whether the petition is premature? (4) Whether‑ the petition is bad for misjoinder of parties? (5) Whether the petition is frivolous, vexatious and. aims to secure enhanced rent? (6) Whether the respondent No.1 has without the consent of the petitioners sublet the portion of the disputed shop to respondents Nos.2 and 3? (7) Whether petitioners want to demolish the disputed property and raise construction on the site and have also obtained permission for demolition and reconstruction and also got approved the site plan from Cantonment, Board? (8) Whether the disputed property is required by petitioners Nos.1 to 3 in good faith and bona fidely for their own use and occupation? (9) Relief.

2. Asif Amin appellant No.2 was the only witness of the appellants whereas all the three respondents appeared as witnesses and also produced three more witnesses. The learned Controller after recording evidence and hearing arguments of the learned counsel for the parties dismissed the application of the appellants by order dated 21‑9‑1986. He found issues Nos.6, 7 and 8 against the appellants. Feeling aggrieved the appellants came up with the present appeal.

3. I have heard learned counsel for the parties who have also led me through the record of the case.

4. ISSUE N0.6.‑‑ The appellants had contended that Bahadur Ali respondent No.2 runs business of plastic goods while Khalid Khan respondent No.3 is using the suit shop for watch repairing purpose. Appellant Asif Amin appearing as PW.1 categorically stated that the appellants had not let on rent any portion of the suit shop to respondents Nos.2 and 3 and that they had been inducted into the premises by respondent No.1. It was alleged by respondent No.3 that he was allowed to carry on business of watch repairing in the suit premises by the father of the appellants but this allegation had also been denied by the appellants. Nasir Hussain attorney of respondent No.1 appearing as PW.1 has contended that respondent No.2 sells plastic goods in the suit shop. He also admitted that respondent No.3 runs his business in the southern side of the suit premises. He also admitted that in his presence the appellants or their father had not allowed respondents Nos.2 and 3 to run their business in the suit premises. From the evidence produced on this issue it shall be seen that the respondent No.1 had admitted that the respondent No.2 was running business of plastic goods and respondent No.3 was running business of watch repairing in the premises of the suit shop. It has been categorically stated by the appellants that they had never inducted respondents Nos.2 and 3 to the suit premises. The respondent No.1 also failed to produce any evidence to show that the respondents Nos.2 and 3 were inducted in the suit premises by the appellants or their father. Obviously respondents Nos.2 and 3 had been inducted in the suit premises by respondent No.1 without the consent of the appellant. . From the evidence produced on this issue the appellants had successfully proved subletting of the suit premises by respondent No.1 without their consent. The learned Controller failed to properly appreciate the evidence produced in this regard and erroneously decided this issue against the appellants. 1, therefore, set aside the finding of the learned Controller on this issue and decide it in the affirmative.

5. ISSUE No.7:-‑‑It has been contended by the appellants that they want to demolish the building of the shop and to reconstruct it and for that purpose they have obtained the necessary sanction for such construction from the Cantonment Board. The appellants have produced documents, copies Ex.PW.l/1 and Ex. PW 1/2, showing the sanction for demolition and reconstruction granted by the Cantonment Board, Peshawar and the site plan approved for such construction. According to the provisions contained in clause (vi) of subsection (2) of section 17 of the Cantonments Rent Restriction Act, 1983 a landlord', in order to prove his allegation of demolition and reconstruction of the property is required to obtain necessary sanction for such construction from Cantonment Board and the aforesaid documents produced in evidence clearly prove that necessary sanction g for such construction had already been obtained. The learned Controller was of the opinion with regard to this issue that the condition of the suit premises was alright and there was no genuine need for demolition and reconstruction thereof. I must say that this is not the requirement of law. According to the legal provision, as quoted Aforesaid, a landlord In order to prove demolition and reconstruction of building is not required to show or prove that the premises is in any way dilapidated and requires reconstruction. He has to show only his intention to demolish and reconstruct the building. The learned Controller failed to appreciate the legal provision in respect of reconstruction of the building. I cannot uphold the finding of the learned Controller on issue No.7 and by setting it aside I will decide issue No.7 in the affirmative.

6. ISSUE No.9.‑

It has been proved from the evidence produced in the care also from the admission of attorney of respondent No.1 that the appellant No.1 to running his business in a hired shop and that since no premises is available appellant No.2 assists the appellant No.1 in his business and appellant No.3 is employed with a doctor and cannot establish his own independent business. These allegations of the appellants have been admitted in cross‑examination by Nasir Hussain attorney of respondent No.1. As such sufficient evidence was brought on record by the appellants to show that they require the suit premises in good faith for running their own business. The respondent No.1 had contended that Muhammad Yasin appellant No.3 had sold a shop .in the year 1985 and that he did not require the suit premises in good faith for running his own business. The learned Controller has given undue importance to the sale of a shop by appellant Muhammad Yasin contrary to the provisions of law. There is no provision in the law that a landlord cannot get any shop vacated for running his own business when he has already sold another shop belonging to him. The learned Controller also failed to appreciate the point that none of the three appellants is possessed of any other shop belonging to them for running their business. Appellant No.1 is running his business in a rented shop whereas the other two appellants cannot start any business‑ for lack of any shop with them. It has been clearly established that at least one of the appellants is running his business in. a rented shop and he requires the shop in dispute in good faith for running his own business. I am afraid I cannot uphold the finding of the learned Controller on this issue as well which is decided in favour of the appellants.

7. In so far as issues Nos.1 to 5 are concerned, the learned Controller failed to appreciate the legal purport thereof. The appellants had successfully proved the factum of subletting, their Intention to demolish and reconstruct the premises and their personal need in good faith. Obviously the cause of action was In their favour. There is nothing on the record to show as to what conduct of the appellants operated to stop them to file the ejectment application. I fail to understand as how the petition was premature. This issue was presumably framed from the preliminary objection raised in the written statement of respondent No.1, but there is nothing on the record or even in the written statement as how and why ejectment petition was premature. There is general tendency with the parties to raise frivolous objections simply to cause inconvenience to the other party and this objection appears to have been taken with the same intention. Otherwise there is nothing on the record to substantiate this objection. As a result of my finding on issue No.6 the proper parties have been impleaded and there is no case of misjoinder of respondents' Noe.2 and

3. The facts brought on record also negate the objection raised In issue No.5. Consequently the Issues Nos.1 to 5 are decided against the respondents.

8. Another plea wad raised by the learned counsel for the respondents in this Court to the effect that a perpetual tenancy had been created by the father of the appellant, In favour of respondent No.1 and that he was not liable to ejectment. I have given serious consideration to this aspect of the matter. This plea was not raised In the written statement nor it was sought to be subsequently raised by any amendment in the written statement. It was only at the time evidence that a plea was raised by Nasir Hussain attorney of respondent No. 1 that the latter also wanted to purchase the suit property from the Settlement Department and had actually prepared a writ petition to be filed in the High Court to challenge the transfer thereof in favour of the father of the appellants that a compromise was reached between them whereby the latter agreed not to eject the respondent No.1 from the suit premises for ever. However, the cross‑examination of the attorney shows that this was a frivolous plea unfounded and unsubstantiated by any documentary or cogent evidence. Even otherwise this plea cannot prevail because neither it was raised as a ground of defence in the written statement nor any issue was framed with regard thereto.

9. As a result of my findings in the aforesaid discussion I will accept this appeal, set aside the impugned order dated 21‑9‑1986 of the learned .Controller and by acceptance of the ejectment application I will order the ejectment of all the respondents from the suit premises. They shall hand over vacant possession of the suit premises to the appellants within three months from today failing which the appellants shall be entitled to execute this judgment. There shall, however, no order as to costs. H.B.T./641/P Appeal accepted.