1993 PLP 2227 (MLD)

3. The only issue which was framed by the learned Controller in the case Vas whether the appellant required the premises in question for his personal bona fide use. It is pertinent to point out that the premises in possession of the appellant were of commercial nature. Be that as it may, but after an affidavit in‑evidence had been filed on behalf of the respondent and he was also cross-examined by the counsel of the appellant, the appellant failed to file any affidavit‑in‑evidence notwithstanding the opportunities provided to him in this regard about which there appears to be no controversy between the learned counsel. Consequently, since there was no evidence produced in rebuttal by the appellant, the application filed by the respondent was granted and the respondent was directed to vacate the premises in question within 60 days of the passing of the order.

4. The main contention of Mr. Muhammad Riaz, learned counsel for the appellant before this Court has been that notwithstanding the fact that evidence was not led on behalf of the appellant his ejectment from the demised premises still could not be ordered by the learned Controller since all the requirements of section 17(4)(b) of the Cantonments Rent Restriction Act, 1963 were not satisfied by the respondent. In this regard, the learned counsel has referred to the affidavit‑in‑evidence of the respondent and his cross-examination by the counsel for the appellant. In the affidavit‑in‑evidence the respondent stated that after expiry of the agreed tenancy period he had asked the appellant to vacate the shop in question for the personal use of the respondent but on his refusal the application before the learned Controller was filed. During his cross‑examination certain admissions were made by the respondent which showed that he also owned Shops Nos.2 and 3‑A besides the shop in question. The cross‑examination further shows that one Haji Muhammad Sardar was the respondent's tenant in Shop No.2 and another person named Azeemuddin was his tenant in Shop No.3‑A. The respondent admitted during the cross‑examination that Shop No.2 was rented out to Haji Sardar on 15‑8‑1988 i.e. only a few months prior to the filing of the application on 7‑8‑1988 and Shop No.3‑A had been rented out on 1‑7‑1988 i.e. only about a month prior to such date. Section 17(4)(b) which relates to commercial buildings provides as follows: ‑‑ "(4) a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession, .......... in the case of a commercial building, if‑‑‑ (i) he requires it in good faith for his own use, and (ii) he is not occupying in the cantonment area concerned or in any local area in the vicinity thereof in which such building is situate for the purposes of his business any other such building suitable for his needs at the time, and . (iii) he has not vacated such building in. the said area or vicinity without sufficient cause after commencing of this Act." A plain reading of clause (b) above clearly appears to be indicating that three conditions must be satisfied by the landlord before h(s succeeds in ejecting his tenant from the demised premises in case of a commercial building viz.: (1) He must establish that the building is required in good faith for his own use; (2) that he is not occupying in the cantonment area concerned etc. any other such building suitable for his needs at the time and (3) that he has not vacated such building in the said area or vicinity without sufficient cause after commencement of the Cantonments Rent Restriction Act, 1963. As it can be clearly spelt out from the above provisions the burden to establish the necessary conditions required for establishing a case for ejectment would be on the landlord himself. The eviction application filed by the landlord and the affidavit‑in‑evidence filed on his behalf show that the landlord not only failed to plead his case in accordance with the provisions of clause (b) above but his admission during his cross‑ examination that he had rented out two A similar shops prior to the filing of the eviction application without explaining whether the said shops were suitable for his require ness are not, was fatal to his case. Although Mr. Muhammad Riaz has not cited any case‑law directly on the point but he has placed reliance upon Syed Farzan RIM v. Khalilur Rehman 1981. CLC 1223. In this case, Abdul Hayeen Kureshi, Acting C.J. found the landlord to be disentitled to get eviction of his tenant when it had been established that he had let out two premises, one near to the disputed premises; without explaining whether anyone of their was not suitable for his requirements.

5. The case referred to by Mr. Muhammad Riaz lends support to his contention but in my opinion, the present case still rests at a much higher pedestal than the reported case as such is the requirement of the law itself. Although the case decided by Abdid Hayeen Kureshi, J. had been filed under section 13 of the Urban Rent Restriction Ordinance but the language employed by the legislature in the said section was identical to that used in section 17(4)(b) of the Cantonments Rent Restriction Act. Mr. Nizam Ali Khan has invited my attention to the case of S.M. Zafar v. Vice‑Admiral (Rad.) lqbal F.Qadir 1991 CLC 1137 wherein it has been observed that sufficiency of the accommodation is the prerogative of the landlord and the tenant has not been given power to determine where the landlord should presently reside but it may be pointed out with utmost respect that in the present case, in view of the facts just enumerated in this judgment, the burden clearly was on the landlord to a explain whether the premises let out by him were suitable for his need. The relevant law, reference to which hits already been made in this judgment, clearly places the burden on the landlord to establish the same which the respondent evidently has failed to discharge. I am therefore, of the view that notwithstanding the fact that no evidence was led on' behalf of the appellant, the learned Controller could not have ordered his ejectment from the premises unless the conditions enjoined by the law were fully satisfied. The order passed by the learned Controller, therefore, appears to be erroneous.

6. In the result, this appeal is accepted and the order passed by the learned Controller is set aside. The parties are left to bear their own costs. H.B.T./M‑1732/K Appeal accepted.