1997 PLP R1441 (SCMR)

ZIA MAHMOOD MIRZA, J.‑‑‑This is a petition for leave to appeal against an order of a learned Single Judge of Lahore High Court dated 14‑4‑1996 dismissing the petitioner's second appeal directed against the order of his ejectment passed by the Rent Controller and upheld by the First Appellate Court.

2. Petitioner's ejectment has been ordered on the ground of default in the payment of rent and the bona fide need of the premises by the respondent- landlady for reconstruction and thereafter. for the use and occupation by her husband for doing the business on her behalf. Learned counsel appearing in support of this petition has contended that it was alleged in the eviction petition that the petitioner had neither paid nor tendered the rent since September, 1990 but during the hearing of the petition, counsel for the respondent made a statement before the Rent Controller on 23‑6‑1992 that the petitioner had been regularly remitting the rent at the rate of Rs.1,125 per month till June, 1992 but he had not increased the rent by 25 % in terms of newly‑added section 5‑A of the Rent Restriction Ordinance. Petitioner was accordingly held defaulter on account of his failure to pay the enhanced rent in terms of section 5‑A of the Ordinance. Grievance of the learned counsel is that it was neither alleged in the ejectment petition nor was any issue framed that the default was on account of non‑payment of enhanced rent in terms of section 5‑A. Petitioner could not. therefore, be ejected on that ground. Learned counsel argued that under sub‑section (2) of section 5‑A, the first increase was due on the first day of July, 1989 and it is in evidence that the petitioner had increased the rent from Rs.900 to Rs.1,125 in the year 1989 which was almost 25 % increase. It was further submitted that before the expiry of the next 3 years, the respondent had instituted the ejectment proceedings. Petitioner was, therefore, not a defaulter even in terms of section 5‑A. This aspect of the matter, according to the learned counsel, has escaped the notice of the learned Courts below. Learned counsel further contended that according to the sanctioned plan, the landlady wanted to construct as many as 18 shops. According to the learned counsel, it passes one's comprehension that the respondent's husband would need all the 18 shops for doing the business. Thus, the bona fide need for personal use after reconstruction cannot be said to have been established and the petitioner, therefore, is entitled to appropriate accommodation after re construction as provided in section 13 (5‑B) of the Ordinance. This aspect, too, has not been gone into by the learned Judge in the High Court.

3. Contentions raised by the learned counsel need consideration. Leave to appeal is, therefore, granted. Interim stay order already passed shall continue pending the final hearing of the appeal. A.A./M‑3312/S Leave granted.