1992 PLP 1235 (CLC)

(e) West Pakistan Urban Rent Restriction Ordinance M of 1959)‑‑‑ ‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Default in payment of rent‑‑‑Appellate Court having thoroughly examined question of default after appraisal of evidence had recorded finding ' of fact that tenant was defaulter‑‑‑Such finding was not open to scrutiny in Constitutional jurisdiction. Abdul Latif v. Muneer Ahmad PLD 1987 Kar. 460; Muhammad Alimullah v. Ziaul Islam PLD 1973 Kar. 56; Dr. Syed Waris Ali Tirmizi v. Mst. Liaqat Begum 1980 SCMR 601 and Mst. Alima Ahmad v. Amir Ali PLD 1984 SC 32 ref. Raja Muhammad Anwar for Petitioner. Ch. A. Waheed Salim for Respondent. Date of hearing: 20th November, 1991. This petition under Article 199 of the Constitution of 151amic Republic of Pakistan calls in question the order dated 12‑12‑1989 passed by the learned Additional District Judge, whereby he dismissed the appeal of the petitioner against the order dated 11‑3‑1989 passed by the learned Rent Controller, whereby the ordered eviction of the latter from Shop No‑2, bearing property No.SE‑9‑R‑23/2 situated at Brandreth Road, (Nishter Road), Lahore. Pre‑admission notice was given in this case by my learned brother Ejaz Nisar, J. by order dated 9‑1‑1990. Learned counsel for the parties have since been heard at length, I propose to treat this case as a notice case.

2. The relevant facts are that Ch. Khursheed Ahmad, respondent No.1 filed an application for ejectment on 15‑11‑1980 against Anwar Ahmad, brother of the petitioner. Anwar Ahmad denied the relationship of landlord and tenant between the parties and took the plea that his brother Shafiq Ahmad petitioner herein, was the tenant. Consequently, the petitioner was impleaded as co‑respondent in the ejectment application by order dated 29‑9 1983 passed by the learned Rent Controller. Both of them contested the application. The learned Rent Controller in view of pleadings of the parties framed three issues relating to maintainability of the ejectment application, default and personal need. The ejectment petition was however, accepted on ground of personal need alone by order dated 11‑3‑1989. The petitioner filed an appeal. Respondent No.1 also filed appeal challenging therein the fording on the issue of default. No appeal was filed by Anwar Ahmad. The learned Additional District Judge, Lahore, after hearing the parties and re‑evaluating the evidence reversed the findings of the learned Rent Controller on the issue of default holding that the petitioner committed default in the payment of rent for the months of July 1980 to November 1980. The fording of the learned Rent Controller on the issue of personal need was maintained. In consequence, the appeal filed by the petitioner was dismissed while that of respondent Khurshid Ahmad was accepted with the direction to the petitioner to hand over vacant possession of the disputed shop within thirty days by order dated 12‑12‑1989. '

3. Raja Muhammad Anwar, learned counsel for the petitioner argued that the Courts below have erred in law in holding that the respondent landlord required the disputed premises for the personal need of his son bona fide. Elaborating his point, Raja Muhammad Anwar submitted that it is proved on record that the property in dispute was claimed by the respondent landlord for the need of his son who is a practising Advocate at Kasur and, therefore, being in the legal profession he cannot run the business simultaneously. It was further argued that the bona fide need of the respondent landlord is also falsified by the fact that three shops of similar nature situated in the same building where the shop in dispute is located were got sold by the petitioner during pendency of the ejectment petition before the learned Rent Controller, in that, one was purchased by Muhammad Sharif (R.W.6), the other by Ghafoor (R.W. 7) and the third by Zubair (R.W. 5). The submission is that the shop sold to Zubair was the most suitable for carrying on the business by Ali Ahmad the son of the landlord and therefore, bona fide personal need of the respondent is not proved on record. Raja Muhammad Anwar, vehemently argued that the appellate Court did not advert to this important aspect of the case and failure to do so has resulted in grave injustice to the petitioner. In support of his plea reliance is placed on Mst. Anwari Begum v. Noor Hasan 1984 CLC 265 and Mirza Farooq Beg v. Muhammad Arif PLD 1981 Kar. 67.

4. The controversy of personal need is concluded by a concurrent finding of fact which is not reviewable in the exercise of Constitutional jurisdiction. Here I do not find any misreading of evidence or omission to take into consideraton any material evidence or violation of any rule of law laid. down by the superior Courts relating to appreciation of evidence or determination of `personal bona fide need' in the context of section 13 of the Ordinance and therefore, the impugned ejectment order warrants no interference by this Court. The mere fact that the son of the respondent landlord holds licence to practise legal profession does not ipso facto debar him to apply to the Rent Controller for ejectment of the petitioner on the ground that the shop in dispute is required by him in good faith for his own use or for the use of any of his children as contemplated by sub‑paragraph (ii) of paragraph (3) of section 13 of the Ordinance. It is true that under rule 175 of the Pakistan Legal Practitioners & Bar Councils Rules, 1976, an advocate should not, as a general rule carry on any other profession or business, or be an active partner in or a salaried official or servant in connection with any such profession or business. Violation of the said rule, however, may be deemed to be a professional misconduct rendering an advocate liable to disciplinary action under section 41 of the Legal Practitioners & Bar Councils Act, 1973, but it does not debar the landlord to apply to the Rent Controller for an order directing the tenant to put the landlord in possession if the non‑residential building is required in good faith for the use of any of his children as contemplated under sub paragraph (a) of paragraph (ii) of subsection (3) of section 13 of the Ordinance, provided his child is not occupying any other building in the same urban area suitable for his need at the relevant time. During the pendency of the ejectment petition, no shop was got vacated or was in possession of the respondent landlord and was got vacated or sold. Admittedly, the son of the respondent landlord was not occupying any other shop in the same urban area for the purposes of carrying on his intended business. The learned Rent Controller observed that it was a small shop in size and after making certain alterations and modifications the same was sold. Before carrying on the intended business, the son of the landlord respondent would be within his right to apply to the concerned Bar Council for suspension of his licence as contemplated by rule 5.14 of the Punjab Legal Practitioners and Bar Council Rules, 1974. Under no provision of law, an Advocate is obliged to seek suspension of his licence the moment his father approaches the Rent Controller for vacation of a non‑residential building for the bona fide use of his Advocate son. Here the ejectment petition was filed in November, 1980 when Ali Ahmad son of the petitioner was neither LL.B. nor was admittedly enrolled as a lawyer. This has been duly explained in the impugned order of the learned Additional District Judge and also by Khursheed Ahmad respondent in his statement as P.W.

3. The son of the respondent landlord was not expected to sit idle or leave his profession till the disputed property was got vacated. Refer Fazal Azim v. Tariq Mahmood PLD 1982 SC 218, wherein it was held that a "landlord seeking eviction on ground of personal requirement would not sit idle for periods of time during pendency of the eviction proceedings. If during such a period he employes himself in a gainful occupation, that as a general proposition, would not negate the assertion of bona fides on his part".

5. Be that as it may, if any Advocate carries on some other employment, business, vocation or profession not connected with law, the Enrolment Committee of the Bar Council can always suspended his licence under rule I 5.15 of the Punjab Legal Practitioners and Bar Councils Rules, 1974. The learned Additional District Judge has thoroughly examined this aspect of the matter and after re. appraisal of evidence came to a positive finding regarding bona fide need of the petitioner's son to carry on business in the disputed shop. This finding is not open to scrutiny in these proceedings. The impugned concurrent finding of fact regarding personal need is in conformity with the principle enunciated by the Supreme Court in Sheikh Muhamamd Yousaf v. District Judge, Rawalpindi 1987 SCMR 307. to the precedent case, ejectment on the ground ‑ of personal need was upheld in writ jurisdiction and the Supreme Court refused to grant leave to appeal on the ground that such questions of fact were rightly not entertained as the same could not be examined in the Constitutional jurisdiction. To the same effect is the case: of Haji Muhibullah & Co. v. Khawaja Bahauddin 1990 SCMR 1070. Furthermore, sufficient safeguard has been. provided in section 13(4) of the Ordinance for restoration of possession to the petitioner in case after the shop in dispute has been got vacated for occupation of the son of the landlord, he fails to do so within one month of obtaining possession or having so occupied re‑lets within two months of the said date to any person other than the original tenant.

6. As regards sale of other shops held by the respondent landlord, there was no bar to sell away the same and utilize sale proceeds thereof for any other purpose. Under Article 23 of the Constitution, every citizen of Pakistan has a right to acquire, hold and dispose of the property in any part of the country subject to the Constitution and any reasonable restrictions imposed in public interest. The sale of other shops held by the landlord during pendency of the ejectment petition was neither violative of any of the provisions of law nor negates the bona fide need of his son in the context of sub‑paragraph (ii) of subsection (3) of section 13 of the Ordinance. It is prerogative of the landlord to select the shop that is required for his personal need and the plea of sale of other shops not in possession of the respondent landlord is not a relevant factor for determining the bona fide personal need.

7. Raja Muhammad Anwar, next argued that the learned Rent Controller gave a finding on issue No.2 that there was no default, but the learned District Judge reversed the finding on this issue on the ground that after remitting the rent of January 1980 and February 1980, the petitioner should have deposited the same in the Court of law. Raja Muhammad Anwar submitted that this finding is not sustainable, in that, the petitioner was made , a party as respondent No.2 in the ejectment petition on 29‑9‑1983 when the rent in dispute had already been deposited through a challan dated 5‑1‑1981. The submission is that on refusal of the landlord to accept the rent, the petitioner was obliged to remit the same through money order which was refused by the landlord and thereafter the petitioner deposited the rent for thirteen months from January 1980 to January 1981 amounting to Rs.3,250 at the rate of Rs.250 per month. Thereafter, it is submitted that the petitioner regularly deposited the rent due in the Court with the permission of the learned Rent Controller and the respondent landlord used to collect the same after intervals in lump sum and this was the practice throughout and therefore, the learned Additional District Judge by misreading and misinterpreting the evidence came to a wrong conclusion that the petitioner was a defaulter for the payment of rent whereas no wilful default was proved on record . In support of his contention, reliance was placed on Abdul Latif v. Muneer Ahmad PLD 1987 Kar. 460, where it was held that where the landlord is proved to have accepted the rent periodically or in lump sum and in case he wanted this impression about past conduct to be erased, then he should have put the tenant on notice or informed him that acceptance of rent in the past in lump sum was. an act of condonation and the same is not to be treated as standard practice and rent has to be paid every month when it is due and failure of tenant in that context would make him liable to eviction, only then the tenant would be deprived of this particular defence.

8. The question of default has been thoroughly examined by the learned Additional District Judge, who after proper appraisal of evidence, recorded a finding of fact that the petitioner was a defaulter. This finding is not open to scrutiny in writ jurisdiction. The so‑called respondent landlord's practice to accept the rent periodically or in lump sum cannot condone the default as held in Muhammad Alimullah v. Ziaul Islam PLD 1973 Kar. 56, This judgment was approved by the Supreme Court in the case of Dr. Syed Waris Ali Tirmizi v. Mst. Liaqat Begum 1980 SCMR

601. The same principle has been reiterated in Mg. Alima Ahmad v. Amir Ali PLD 1984 SC 32, wherein it was held that the practice of attorney of the landlord to collect the accumulated rent was of no avail in explaining the delay and default. The order of the Rent Controller in the precedent case holding that there was no "persistent" or "wilful" default, was erroneous. Respectfully following the precedent cases, I am inclined to hold that the learned District Judge rightly held that the petitioner was a willful defaulter in the payment of rent due. The case of Abdul Latif (supra) was decided by a learned Single Judge of the Sindh High Court after re‑appraisal of evidence in the exercise of appellate jurisdiction under the Sindh Rented Premises Ordinance (No.XVII of 1979). Here no appraisal of evidence can be undertaken. Be that as it may, this controversy stands concluded by the ratio laid down in the case of Mst. Alima Ahmad (supra), which is binding on this Court. In view‑of the foregoing discussion, the writ petition fails and is hereby dismissed, but there shall be no order as to costs. A.A./S‑79/1, Petition dismissed: