1991 PLP 1652 (CLC)

These petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, arises out of an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, filed by Haji Abdus Salam Bhatti, respondent No.3 against Hidayatullah and Muhammad Rafique petitioners in W.P.No.5913 of 1989 and W.P. No.5914 of 1989. In these appeals it was alleged that shops bearing Nos.2 and 6 were in possession of Hidayatullah while shop No.5 was in occupation of Muhammad Rafique petitioners as tenants under Haji Abdus Salam Bhatti respondent. The eviction was sought on the ground that shop No.2 was required by Haji Abdus Salam for his own use and occupation as he wanted to expand the business of Travel Agency which he was carrying in the adjacent shop while the other two shops were required for the use and occupation of his son Abdul Oayyum. Another ground pleaded was that the petitioners had damaged the shops and thereby impaired the value and utility thereof.

2. In the written statements filed by them the petitioners controverted the averments in the ejectment application and stated that Shops Nos.3 and 4 were got vacated by the landlord through the Court which are lying vacant. It is also averred that the landlord has also filed an ejectment petition against tenants in shops Nos.7, 8 and

9. Out of the pleadings of the parties the Rent Controller framed the following seven issues:‑

(1) Whether the respondents Nos.l and 2 have validly paid or tendered the rent in dispute to the petitioner, if not, its effect? O.P. Parties. (2) Whether the respondents Nos.l and 2 have materially diminished the value and utility of the shops in dispute? OPA. (3) Whether the petitioner requires shops in dispute bona fide and in good faith for personal need? OPA. (4) Whether the petitioner was required to file separate ejectment petitions against respondents Nos.l and 2? OPR. (5) Whether this ejectment petition is barred under Section 14 of the Rent Restriction Ordinance? OPR. (6) Whether the petitioner has no cause of action? OPR. (7) Relief.

2. On the basis of the evidence led before him, the Rent Controller came to the conclusion that Shop No.2 was required bona fide and in good faith by Haji Abdus Salam Bhatti respondent and proceeded to direct the eviction of Hidayatullah petitioner from that shop. With regard to the other two shops namely Shops Nos.5 and 6, it was found that the need of the respondent for occupation of his son Abdul Qayyum was not proved and in any case the same was not bona fide. The Rent Controller further opined that the landlord had failed to prove that the shops had been damaged by the tenants and therefore, that issue was also decided against the landlord. As a consequence of these findings, an order of ejectment was passed against Hidayatullah but the ejectment petition, with regard to shops Nos.5 and 6, was dismissed.

3. Two appeals one by landlord regarding shops Nos.5 and 6 and the other by Hidayatullah with respect to shop No.2 were filed which were heard by an Additional District Judge together. By means of his consolidated judgment dated 6th of July, 1989 he proceeded to accept the appeal of landlord as regards Shops Nos.5 and 6 and held that. these shops were required bona fide and in good faith by the landlord for the use and occupation of his son Abdul Qayyum and also that the tenant has damaged the shops thereby impairing the value and utility thereof. On these findings the order of the Rent Controller was reversed and Muhammad Rafique tenant was also directed to be evicted from the shops in dispute. The appeal filed by Hidayat Ullah was dismissed and the findings of the Rent Controller that the shop was required by Abdus Salam Bhatti for his own use and occupation was affirmed. Hence these two Constitutional petitions.

4. Syed Farooq Hassan Naqvi, learned counsel appearing on behalf of the petitioner contended that as far as the case of Hidayat Ullah petitioner in W.P. No.5913 is concerned, the findings recorded by the Rent Controller as also the Additional District Judge that it was required for the use and occupation of the landlord are not supported by the evidence on the record. The learned counsel argued that as other shops in the same building had admittedly fallen vacant but had not been occupied by the landlord nor offered to the tenant for exchange with the shops in his possession, the need cannot be said to be bona fide. There is no force in this contention of the learned counsel. It has been concurrently found by the Rent Controller as also the Additional District Judge that the landlord who was running the business of a Travel Agency in Shop No.l required the adjacent shop No.2 for expanding his business. The fact that other shops had fallen vacant would be of no consequence as those shops are not contiguous to the shop where the landlord was also carrying on business. There is no law which requires a landlord to offer alternative accommodation to the tenant in case he requires the shop in occupation of the tenant for his own use. The W.P. No. 5913 of 1989 as regards Shop No.2 has no force and is dismissed.

5. So far as the other two Shops No.5 and 6 are concerned, it is to be seen that the Rent Controller had decided both the issues relating to personal use and damage to the property in favour of the petitioners. This finding was however reversed by the Additional District Judge. Unfortunately however while doing so, the Additional District Judge neither referred to nor examined the evidence led by the petitioners to show that the plea of personal need was mala fide and further that no damage whatsoever has been caused by the petitioners to these shops.

6. As the Addl. District Judge was reversing the findings recorded by the Rent Controller, he was not only under an obligation to appraise the entire evidence on the record but also to take notice the reasoning which prevailed with the Rent Controller for taking the contrary view. It stands admitted on the record that shops Nos.3 and 4 had fallen vacant but were not occupied by the son of the landlord for whose use the premises were required. Although the Additional District Judge noted this fact but he repelled the contention raised in this behalf without any valid reasons, especially when there was no evidence on the record to show that the Shops Nos.3 and 4 were not suitable for the use of his son. In these circumstances it is clear that the judgment of the Additional District Judge is not sustainable. As a result of what has been stated above these two petitions succeed to the extent that the judgment of the Additional District Judge with regard to Shops Nos.5 and 6 is declared to be without lawful authority and of no legal effect with the result that the appeals filed by the petitioner with respect to the aforesaid shops shall be deemed to be pending before the Additional District Judge and shall be decided afresh in accordance with law. The parties are left to bear their own costs. AA./H‑231/L Order accordingly.