2015 PLP 1247 (CLC)

WAQAR AHMAD SETH, J.

Malik Tahir Mehmood petitioner seeks the constitutional jurisdiction of this Court praying for:

"that on acceptance of the writ petition, the impugned judgments of both the courts below may kindly be set aside and ejectment application of petitioner may kindly be allowed, any other relief which this honourable court deems fit and proper may also be allowed."

2. Brief and relevant facts leading to this writ petition are that the suit property was transferred in the name of the petitioner through Court decree dated 19-5-2012 passed in Suit No.187/1 of 2011 and on the basis of said decree a mutation No.1036 was also attested in his favour on 29-8-2013. The suit property was rented out to the respondent/Bank and petitioner served a notice upon the respondent/bank regarding change of ownership as well as its vacation on the ground of personal need. The petitioner filed an ejectment petition before the Rent Controller Haripur. The respondent appeared and contested the same by filing written reply. The learned Rent Controller Haripur after recording pro and contra evidence and hearing the parties dismissed the ejectment petition on 13-2-2013. Feeling aggrieved, the petitioner filed appeal, which after contest was also dismissed by the learned District Judge, Haripur. Hence, this writ petition.

3. Arguments heard and record perused.

4. There is no denial of the fact that the ownership of the suit property was transferred in the name of the petitioner through Court decree dated 19-5-2012 passed in Suit No.187/1 of 2011 and on the basis of said decree he became owner of the same and a mutation No.1036 was also attested in his favour on 29-8-2013. The suit property was already rented out to the respondent/Bank and petitioner served a notice dated 24-5-2012 upon the respondent/bank regarding change of ownership as well as its vacation on the ground of personal need and ultimately filed the ejectment petition against the respondent on 20-6-2012.

5. There is no rent agreement deed on behalf of petitioner with the respondent/bank. Petitioner filed the petition for eviction of respondents from the suit premises on the ground of personal bona fide need. The legislature was conscious regarding the ejectment of a tenant on the basis of requirement of premises for personal need of landlord and that is why word "good faith" has been inserted. The relevant portion of section 13 of N.-W.F.P. Rent Restriction Ordinance of 1959 is reproduced:

"Section 13

(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:

(i) in the case of a residential building, if

(a) he requires it in good faith for his own occupation or for the occupation of any of his children; (b) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated and (c) he has not vacated such a building without sufficient cause after the commencement of the Ordinance in the said urban area; (ii) In the case of a non-residential building or a scheduled building or rented land, if:

(a) he requires it in good faith for his own occupation or for the occupation of any of his children; (b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time, and (c) he has not vacated such a building or rented land without sufficient cause after the commencement of the Ordinance in the said urban area;

6. Rent Restriction Ordinance, 1959 has been promulgated for regularizing the rights of both landlord and tenant in Urban area. In fact the main theme behind the said law is to protect the rights of tenants, especially of those tenants, who occupy the commercial building. The said tenant, who has established his business in premises and has achieved the 'good will', cannot be left on the mercy of the landlord. It is also admitted fact that not only such tenant has spent huge amount rather precious time and hectic efforts to build up his business and good will in the rented building. Not only his and his family livelihood is involved rather in case of ejectment financial collapse of tenant cannot be ruled out.

7. The Courts are always conscious regarding the ejectment of a tenant from non-residential/commercial building due to reasons mentioned above. However, it does not mean that a landlord, who has established and proved his bona-fide personal need for himself. The term 'good faith' is prime and essential ingredient of ejectment of the tenant. Now, the mala fide intention of landlord for ejectment on the ground of personal need can only be ascertained if it is proved that landlord in fact is not a 'needy' rather is 'greedy' and only desires to enhance the rent according to his own will or he wants to rent it out to another person on much higher rent. Respondents have been failed to prove that petitioner is not `needy' but a 'greedy' person, who only wants to enhance the rent according to his own wish or to rent out the suit premises to other interested tenant for higher rent. 8 It is needless to say that in case petitioner does not occupy the suit premises within one month after its eviction or rents it out to other tenant after two months of obtaining of possession then under section 13(4) of N.-W.F.P. Rent Restriction Ordinance respondents can apply to the Rent Controller for restoration of the possession of the suit premises. Hence, rights of the respondents are also protected if the suit premises after eviction is not taken into possession by the petitioner for running business of his own or the same is rented out to some one else. In this regard wisdom can be drawn from case of Iqbal Book Depot v. Khatib Ahmed and 6 others reported as 2001 SCMR 1197, wherein it was held:

"Where the statement on oath was quite consistent with his averment made in the ejectment application and the same had neither been shaken nor anything had been brought in evidence to contradict his statement, such statement on Oath would be considered sufficient for acceptance of the ejectment application

Conclusion drawn by High Court being unexceptionable did not call .for interference".

10. We have also dilated upon the question as to whether the entire building would be needed or a part of and, we are of the view it may be left to the discretion of landlord who alone has the authority to decide this aspect of the matter and no advice or suggestion can be made binding upon him as the tenants cannot act as gratuitous advisers. In this regard we are fortified by the dictum laid down in 1968 SCMR 1087. Let we mention here at this juncture that " the rest test whether a premises is required for personal use is whether the need is based on good faith. This being a question of fact and finding on this subject cannot be taken exception to unless it is shown that it suffers from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. 1978 SCMR

437. Nothing solid or concrete could be brought in rebuttal by the appellants showing that the need of landlord is imaginary or based on mala fide.

11. Now adverting to the contention that ejectment application has been moved with mala fides and for the need enumerates therein can be met in a few shops and eviction of entire building is not necessary hardly needs any elaborate discussion as it is well-settled by now that "so far as Ordinance VI of 1959 is concerned there is a qualifying word attaching to the requirement and that is of good faith provided in the law itself There is a penalty provision of restoration of the property in case there is failure on the part of the landlord. These qualifications, limitations and prescriptions clearly suggest the context by reference to which the law has to be interpreted and applied in a given situation".

9. In the facts and circumstances of the case, it has been established on record that petitioner requires the suit premises for his bona fide personal need in good faith but both the Courts below have wrongly and illegally declined relief to the petitioner.

10. Moreover, immediately after the purchase of property and stepping into the shoes of landlord, the petitioner served the notice under section 13-A of the Ordinance, which is admitted by the respondents but even then rent was not remitted to the petitioner nor was collected by the previous landlord, thus, admittedly retained by the tenants/respondents, hence, committed wilful default in view of section 13-A, which provides as under:

"13-A. Tenant to be informed in case of transfer of ownership. Where the ownership of a building in the possession of a tenant of rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (1) of subsection (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him".

11. Consequently, this writ petition is allowed, impugned judgments and orders of both the Courts below are hereby set aside and it is directed that respondents/tenants shall hand over the vacant possession of the suit premises to the petitioner within a period of four months, failing which the petitioner shall evict the respondents/tenants through proper course of law. AG/151/P Petition allowed.