1991 PLP 1566 (CLC)

Date of hearing: 3rd March, 1991. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the order dated 12-11-1985 passed by the learned Additional District Judge, Lahore, whereby he set aside the order dated 30-10-1984 passed by the learned Additional Rent Controller, Lahore Cantonment, whereby he ordered eviction of respondent No. 3 on the ground of personal need.

2. The background of the case is that the petitioner filed an ejectment application under section 17 of the Cantonments Rent Restriction Act, 1963 against respondent No.3 in respect of Property No.38/160 CMA Colony Lahore Cantt. on 10-5-1983. The petition was resisted by respondent No.3. In view of pleadings of the parties, the learned Rent Controller framed the following issues:

(1) Whether the respondent is defaulter in payment of rent? OPP. (2) Whether suit premises is required for the personal use and occupation of the petitioner? OPP. (3) Relief

3. The parties led their evidence. The learned Additional Rent Controller, after appreciating the evidence on, record, by order dated 30-10-1984, accepted the ejectment petition and directed respondent No.3 herein, to hand over vacant possession of the premises to the petitioner on the ground that the property in question was needed by him in good faith for his personal use. The- issue of default in rent was, however, decided against the petitioner.

4. On appeal, the learned Additional District Judge,, Lahore, after re-?appreciating the evidence, set aside the order of the Rent Controller and consequently the ejectment application filed by the petitioner was dismissed.

5. Ch. Hamid-ud-Din, learned counsel for the petitioner contends that during the pendency of appeal, Ordinance No.IX of 1985 was enforced with effect from 31-1-1985, whereby ejectment orders passed under the Cantonments Rent Restriction Act, 1963, were made appealable to the High Court instead of 'the District Court. Mr. Hameed-ud-Din argued that being change of forum of appeal it applied retroactively to pending proceedings, rendering appeal before: respondent No.1 as incompetent.

6. It is not necessary to dilate on the subject. Suffice it to say that this controversy is settled by the judgment of the Supreme Court in Muhammad Bashir v. Muhammad Firdaus (P L D 1988 SC 232), wherein it was held drat amendment of section 24 of the Cantonments Rent Restriction Act does not indicate that the pending appeals were to be affected by the amendment regarding change of forum of appeal.

7. Ch. Hameed-ud-Din next contended that the learned Additional. District Judge while deciding the issue of personal need has acted in exercise of his jurisdiction illegally in interfering with the finding of tact which was borne out b3 record, inasmuch as, it is the settled law that choice of residence rests with the landlord and this prerogative cannot be substituted by the lower appellate authority. It was contended that this aspect of the 'matter has' not beet appreciated by the learned Additional District Judge, which has resulted in miscarriage of justice and grave prejudice to the petitioner herein.

8. I have perused the evidence led by the parties with a view to find out whether there is any misreading or disregard of material evidence on record. The petitioner has not appeared in the witness-box to support the application filed by him. He has not brought anything on record to indicate the reason which permitted him to seek eviction of the respondent on the ground of personal requirement except the statement of Captain Bashir Ahmad (P.W.1) to the effect that the petitioner was residing in Rabwah, he is a heart patient and was under treatment at Rawalpindi for quite sometime and the doctor's advised him to shift to some place where adequate facilities for treatment were available and in that background the petitioner had decided to shift to his house at Lahore. Captain Bashir Ahmad (P.W.1), however, deposed in his cross-examination that he had no documentary proof in support of his assertion that the doctors advised the? petitioner to shift to Lahore. It is further deposed in his statement recorded on 29-5-1984 that the petitioner suffered heart attack about a year and a half ago and thereafter never suffered any heart attack. On the contrary, respondent No.3 appeared in the witness-box as R.W.2 and categorically stated that the petitioner owns houses at Karachi, Islamabad and Rabwah. The learned Additional District Judge, after re-appreciating the evidence, observed that the petitioner landlord did not appear in the witness-box to prove his personal need and only his attorney Ch. Bashir Ahmad (P.W.1) appeared whose statement was not sufficient to prove the plea of bona fide personal need. It was observed that hospital of coronary diseases in the C.M.H. Rawalpindi is one of the largest coronary diseases hospital in Pakistan and that Poly Clinic Hospital is also located at Islamabad. The matter being concluded by an adverse finding of fact recorded by the Additional District Judge, Lahore, the same cannot be assailed in these proceedings. ???

9. It is true that the choice of residence rests with the landlord and ordinarily his choice cannot be interfered with by the Court. Refer Punjab Hardware and Machine Tools Ltd. Karachi v. Wazirali (P L D 1976 Kar. 233), Sabu Mal v. Kika Ram alias Meman Das (1973 S C M R 185) and Ghulam Muhammad v. Municipal Committee, Kamoke P L D 1976 Lah. 1463. This is however, subject to the bona fide requirement of personal need. Clearly, the burden of proof was on the petitioner to show his personal bona fide requirement which he failed to establish as per finding of fact recorded by the lower appellate authority. In view of the above, I find no force in the writ petition, which is hereby dismissed with costs. H.B.T./D-71/L ??????????????????????? ??????????????????????? ??????????? ??????????? Petition dismissed.