2000 PLP 1080 (SCMR)

CH. MUHAMMAD ARIF, J.

In this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 leave to appeal is sought against judgment, dated 19-4-1999 passed by the Peshawar High Court, Peshawar in F.A.O. No.261 of 1998, dismissing the same with costs with the result that the order of the Rent Controller, Nowshehra, dated 23-11-1998, directing the eviction of the petitioner for the suit premises, was upheld. .

2. Briefly stated the background in which this petition has been made by Kifayatullah Bangash-petitioner is that respondent Umar Gul filed an application index section 17 of the Cantonments Rent Restriction Act (No.XI of 1963), hereinafter referred to as the Act, seeking his eviction from the suit shop and a godown before the Rent Controller, Nowshehra on the ground of reconstruction of the premises in question pleading that they were in a ruinous condition. The petitioner contested the application by submitting his written statement after which issues were framed and evidence of the landlord taken by the Rent Controller. The petitioner failed to produce his evidence, despite various opportunities and warnings. It was in this situation that the learned Rent Controller closed his evidence and directed his eviction within 7 days, on 23-11-1998.

3. In petitioner's F.A.O:-No.261 of 1998, the High Court noticed the plea raised on behalf of the petitioner that the petition seeking his eviction was mala fide as the respondent has no intention of reconstructing the property in question in that he has no means for doing the needful and observed that the respondent has obtained the requisite sanction for reconstruction of the disputed premises from the Cantonment Board, Nowshehra vide Resolution No.20(4), dated 24-8-1998 (Exh.P.W.l/2) and that Approved Site Plan is also on the file (Exh.P.W.l/3). The learned Single Judge dealt with the situation arising out of the order passed by the Rent Controller, closing his side, and held as below:-- "

5. The order sheets of the learned Rent Controller from Serial Nos.59 t9 67 are worth perusal and they reflect that the appellant was reluctant to adduce his evidence before the Rent Controller despite serious warnings. "

6. Besides, the respondent landlord has obtained necessary sanction for the re-construction of the suit premises from the Cantonment Board vide letter Exh.PW.l/3 on the file. The site plan has also been approved for the reconstruction and it is Exh.P.W.l/3. The approval of the site plan was duly communicated to the appellant vide letter Exh.P.W.l/1. "

7. The aforesaid evidence available on the record is sufficient to prove the bona fides of the respondent for the re-construction of the suit premises. The appellant has, therefore, wilfully avoided to set up his defence before the learned Rent Controller. I am, therefore, of the view that the impugned order of the Rent Controller manifestly seems correct, which is in accordance with law and procedure and has no legal infirmities. The appeal having no merits is, hereby dismissed with costs."

4. Mr. Abdul Karim Khan Kundi, learned Advocate Supreme Court appearing in support of this petition, argued that as the respondent-landlord has not yet got vacated his units of property, which are contiguous to the premises in occupation of his client, from other tenants, he has instructions to state that he will vacate the premises 'within no time', if other tenants under the respondent-landlord vacate their respective tenements.

5. Mr. Salim Dil Khan, learned Advocate Supreme Court appearing on behalf of the respondent-caveator, has controverted the above assertion and vehemently contended that all other tenants have vacated the premises in their respective possession and that the petitioner is the solitary exception. He has also referred to/the provisions of subsection (7) of the section 13 of the Act, to contend that the impugned order cannot be set at naught by putting the respondent-landlord on the terms other than the ones which find mention therein.

6. We have considered the arguments addressed at the Bar and have also perused the available record with the help of the learned counsel for the parties. There is no need for considering the nature of evidence on the record as Mr. Kundi has not expressed his client's aversion to vacate the disputed premises. The concession expressed by him that other tenants have not vacated their tenements, has been duly controverted by Mr. Salim Dil Khan.

7. Be that as it may; the learned Rent Controller as also the learned Judge in Chamber took due notice of the Cantonment Board Resolution No.20(4), dated 24-8-1998 (Exh.P.W.I/2) as well as that of Approved Site Plan (Exh.P.W.l/3) to come to the conclusion that the case of' the respondent-landlord does not suffer from any infirmity whatsoever. No ground for interference in the impugned judgment in these proceedings has been made out.

8. Resultantly, this appeal fails and is hereby dismissed with no order as to costs. M.B.A./K-3/S Petition dismissed.