2004 PLP 1607 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan. 1973 had been filed seeking leave to appeal against the judgment, dated 5-7-2002 passed by a learned Single Judge of Peshawar High Court, Peshawar, in an appeal arising out of ejectment proceedings.

2. The relevant facts for disposal of this petition are that Syed Sohail Wajid Gilani, respondent herein, with a view to seek ejectment of the petitioner from the shop bearing No.CB 2142, Ashraf Road, Peshawar Cantonment filed a petition under section 17 of Cantonment Rent Restriction Act, 1963 in the Court of Rent Controller, Peshawar Cantt., on the ground of default in payment of rent and bona fide personal need. The ejectment petition was dismissed by the Rent Controller vide order, dated 8-11-2001 which was challenged by the respondent by way of filing an appeal in the Peshawar High Court. The learned Single Judge in the High Court while setting aside the order of dismissal of ejectment petition, allowed the appeal on the ground of personal need through the impugned judgment.

3. The learned counsel for the petitioner has contended, firstly that the ground of personal need urged by the respondent for ejectment of the petitioner would not be available to him after expiry of the statutory period given in section 17-A of Cantonment Rent Restriction Act, 1963 as the ejectment petition was filed much after the expiry of said period, therefore, the same was bound to be dismissed being not maintainable and secondly that except the desire shown by the landlord in his statement for doing some business in the shop, nothing was said about the nature of business to establish the personal need.

4. Learned counsel representing the respondent-caveator, has submitted that section 17-A of the Cantonment Rent Restriction Act, 1963 is a special provision relating to the residential premises and is not relevant for the ejectment of tenants from the commercial properties in reply to the second contention relating to the personal need the learned counsel while placing reliance on Juma Sher v. Sabz Ali 1997 SCMR 1062 submitted that there is no legal requirement of specifying the nature of business to prove the bona fide personal need of landlord.

5. The contention relating to the application of section 17-A of Cantonment Rent Restriction Act, 1963 in the present case being based on misconception of law, needs no comments. The respondent, after his retirement from National Bank of Pakistan, sought ejectment of the petitioner from the shop in question for his personal use and made the statement on oath that shop was required by him to do some business. The landlord is not bound to mention the name of business in his statement as he keeping in view his financial position, margin of profit and the chance of success, may select any suitable business after obtaining the possession of premises and therefore, in absence of choice of the business the bona fide personal need is not effected. The law has provided sufficient safeguard for the tenant under section 17(6) of the Cantonment Rent Restriction Act, 1963 wherein it is provided that if the landlord after obtaining the possession of premises on the ground of personal need does not occupy the same within a period of one month, the tenant is entitled to ask for restoration of the possession. Therefore, the contention of learned counsel relating to the bona fide of the landlord in view of the statement made by him on oath, would have no substance. We having gone through the record, find that the High Court having properly attended the question relating to the bona fide personal need of the respondent in the light of evidence, allowed the appeal and the conclusion drawn on the question of fact being not suffering from the defect of misreading or non-reading of evidence, would not call for interference of this Court, However, keeping in view the nature of business being run by the petitioner, it is proper to give him some time to vacate the shop. We, therefore, with the consent of learned counsel for the respondent, allow the petitioner to retain the possession of shop till 31-12-2002 subject to the payment of monthly rent to enable him to make alternate arrangement. The petitioner shall voluntarily hand over the possession of shop to the respondent by or before 31-12-2002 failing which he shall be evicted forcibly through police and shall also be liable to pay costs of litigation. This petition is, accordingly, dismissed. Leave is refused. M.H./M-721/S Petition dismissed.