1991 PLP 1378 (CLC)

Nemo for Respondents No.2 to

6. Date of hearing: 2nd March. 1991‑ On 8th December, 1983, an application under Section 13 of the Punjab Urban Rent. 'Restriction Ordinance, 1959, riled by the petitioner against respondent No.1 seeking his eviction from a shop situated in Block 4, Sargodha, which was in his possession as a tenant at a rent of Rs.300 per month, on the grounds of default in payment of rent and bona Fide personal use of the landlord. Respondent No.1 controverted these allegations by filing a written statement which led to the framing of the following three issues: (1) Whether respondent No.1 is a wilful defaulter in the payment of rent? OPA. (2) Whether the petitioner requires the rented premises in good faith for his personal need? OPA. (3) Relief.

2. In support of his case, the petitioner examined Irshad Ahmad AW 1, Sultan Ahmad AW2, Muhammad Ali AW 3 and appeared himself as AW

4. In rebuttal, the mother of the petitioner Mst. Kubra Begum was produced by respondent No.1 as RW

1. Ahmad Ali son of Nazar Muhammad was examined as AW2 while respondent No.1 appeared as RW 3, Respondents No.2 to 4 who had been impleadcd as pro forma, respondent in the ejectment application, also produced evidence in the form of statement of Riaz Ahmad respondent, who was examined as RW

4. By his order dated 3rd June, 1985, the Rent Controller decided issue No.1 regarding default in favour of the respondent/tenant, but directed his eviction, in view of the findings on issue NGI, under which it was held that the shop, was required bona fidely and in good faith by the petitioner for his own use.

3. Aggrieved by this order, respondent No.1 filed an appeal which was accepted by the District Judge, Sargodha, on 8th September, 1985. While reversing the finding of the Rent Controller on issue No.2, it was held that the petitioner had failed to 'prove that he required the shop in dispute in good faith for his own use. This judgment of the District Judge has been assailed by the petitioner/landlord by riling this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

4. Mr. Muhammad Ghani, the learned counsel appearing in support of the petition, has argued that the judgment of the District Judge, suffers from serious legal errors floating on the surface of the record and is not sustainable. It was emphasised that the reasoning on the basis of which the petitioner was non?-suited, was not only contrary to the law declared by the superior Courts but is also based upon misreading of the record.

5. The learned counsel appearing for respondent No.1. on the other hand, has supported the judgment of the District Judge beside objecting that the Constitutional petition was not maintainable as the dispute pertains to a question of fact.

6. It stands admitted that the shop is jointly owned by the petitioner and respondents Nos. to 4 while his mother Mst. Kubra Begum is the owner of adjacent shop. While non‑suiting the petitioner, the learned District Judge has mainly gone by the fact that the petitioner, alongwith his mother and other co?sharers, got a plan for re‑construction of the building sanctioned from the Municipal Committee, Sargodha, but this fact was not disclosed in the ejectment petition. There is, however, no law which required such a disclosure. It is not necessary for the appellant to have disclosed the facts which have no direct relevance with the dispute but may be remotely connected. (See Haji Mohibullah & Co. and others v. Khawaja Bahauddin (1990 S C M R 1070). Moreover, the District Judge, unfortunately omitted from consideration the statement of the petitioner while appearing as his own witness and of Riaz Ahmad RW 4 to the effect that after the sanction of the plan, the mother of the petitioner and his other co‑sharers had opposed the idea of re‑construction which was, therefore, abandoned. As the District Judge ignored this material evidence, his judgment is, clearly without lawful authority.

7. The other ground which was taken into consideration by the District Judge was that the petitioner was already running a business in a shop belonging to his mother and was. therefore, not entitled to have the premises vacated for his own use. This finding of the District Judge is contrary to law declared by superior Courts. It is in evidence that the shop in possession of the petitioner was occupied by him as a tenant under his mother. This was so stated by the mother of the petitioner Mst. Kuhra l3cgum, who was examined by respondent No.1 as his witness, and appeared as RW 1 to state that she had rented out a shop to the petitioner. That being so, the occupation of a shop as a tenant, could not in any manner render the petitioner as ineligible to have his own shop vacate or t e purposes of his business. See Abdul Aziz and another v. Muhammad Ibrahim (P L D 1977 S C 442).

8. Learned counsel for the respondent has relied upon Shakir Hussain Chishly v. E.A. Breganza (P L D 1984 Karachi 141) and Abdullah v. Hasan Abbas (1985 C L C 992) to contend that as the petitioner had not disclosed in the ejectment petition that he was carrying on business in a shop belonging to his mother, the ejectment petition riled by him was liable to be dismissed. This contention of the learned counsel is contrary to the authority of the Supreme Court of Pakistan in its recent authority in Haji Mohibullah & Co. and others v. Khawaja Bahauddin (1990) S C M R 1070), wherein it was ruled that omission on the part of the landlord in his ejectment petition to state that lie was occupying similar commercial property in the same area suitable for his needs, would not be fatal. In the present case, admittedly the shop in question does not belong to the petitioner and for this reason also no such disclosure was necessary. The judgment of the District Judge is perverse and arbitrary. For the reasons aforesaid, this petition succeeds, the impugned judgment of the District Judge, Sargodlia, dated 8th September, 1985 is declared to be without lawful authority and of no legal effect, with the result that the order of the Rent Controller dated 3rd June, 1985 stands restored, with no orders as to costs. Respondent No. is allowed four months time from today to vacate the premises. H.B.T./S‑926/L??????????????????????????????????????????????????????????????????????????????????? Petition accepted.