1988 PLP 746 (MLD)

Kh. Muhammad Tufail for Respondents. Dates of hearing: 6th, 7th and 8th October, 1979. This second appeal is directed against an order of ejectment passed against the appellant, Najam Moin and respondents Nos. 2 to 13, on an application for their ejectment filed by respondent No.l, Dr. Riazuddin Ahmad.

2. In the application for ejectment filed by the first respondent, he had sought eviction on the grounds of default, creation of a sub-tenancy by respondent No.2. Ch. Riaz Ahmad in favour of the appellant and Mst. Maryam Bibi, the predecessor-in-interest of respondents Nos. 3 to 13, causing of damage to the property in dispute and personal need. The property in dispute is a shop. The Rent Controller who decided the ejectment application found that the shop was needed by the first respondent for the occupation by his son. The other pleas raised by the landlord did not find favour with the learned Rent Controller. He, therefore, passed an order of ejectment on the ground of personal need.

3. The order of ejectment was assailed by the appellant by means of an appeal before an Additional District Judge. The first respondent also filed cross -objections challenging the finding of the learned Rent Controller on the issues of default and sub-tenancy. His objection was sustained by the learned Additional District Judge who also maintained the finding of the learned Rent Controller on the issue of personal requirement. Consequently, he affirmed the order of the learned Rent Controller and dismissed the first appeal of the appellant. He has, therefore, come up in the second appeal to this Court.

4. Learned counsel for the appellant contended that the cross-objections filed by the first respondent before the appellate authority, namely, Additional District Judge were not competent because there is no provision in the West Pakistan Urban Rent Restriction Ordinance, 1959, permitting the said respondent to file these objections. He also maintained that the Code of Civil Procedure, whereunder such objections could be presented, was not applicable to proceedings before the Rent Controller. Learned counsel for the appellant did not dispute the proposition that cross-objections as such were not competent. He, however, maintained that the first respondent could support the order of the learned Rent Controller by objecting to his findings on issues which had been decided against him. The pica raised by the learned counsel for respondent No.l is supported by Messrs Yousaf & Co. v. Mst. Rasheeda Begum P L D 1975 Kar. 684.1, therefore, agree with the learned counsel for the said respondent that A although he could not file cross-objections as such yet, with a view to supporting the order of ejectment passed in his favour, he could object to the findings of the learned Rent Controller on the issues decided against hire.

5. As regards the finding of the learned Additional District Judge to the effect that the respondent had sub-let the premises in question and had also committed default m the payment of rent, learned counsel for the appellant urged that the respondents before the learned Rent Controller had produced in evidence documents, Exhs. R.1, R.2, R.2/1 and R.4 which had bearing on the tissues of default and sub-letting but they were not considered by the learned Additional District Judge. R.1 and R.2 are two certificates issued by the first respondent saying that he had received rent from April to June, 1971, July 1971 to June 1972 and July 1972 to June 1973 from M/s Health Medicos. Admittedly, M/s. Health Medicos is the firm of the appellant and respondents Nos. 3 to 13 who are alleged to be sub-tenants in the present case. The default alleged by the appellant relates to the period from February, 1973. Learned counsel for the appellant submitted that the said two certificates showed that the first respondent was directly dealing with the alleged sub-tenants himself, that they were inducted in the premises in dispute with his concurrence and that he was not right in saying that rent for the period following February, 1973 was not paid to him because in the Exh.R.2 he had admitted receipt of rent upto June 1973. As for the documents Exhs. R.2/1 and R.4 they are copies of the accounts maintained by the appellant and respondents Nos. 3 to

13. They were placed on the record to show that they had paid the rent in dispute to the first respondent. Learned counsel for the first respondent frankly conceded that the aforesaid documents, which had lot of bearing on the issues relating to default and sub-letting, had not been considered by the learned Additional District Judge. Learned counsel for the appellant contended that if the said documents are taken into consideration it will not be possible to maintain the findings of the learned Additional District Judge on the said issues. This proposition was not disputed by the learned counsel for the contesting respondent. In the circumstances, I reverse the findings of the learned Additional District Judge on issues relating to default and sub-letting of the premises in dispute and hold that these two issues have not been proved.

6. This brings me to the issue relating to the personal need of respondent No.l. He has averred that he needs the shop in dispute for occupation by his son Abdul Moeed because he is jobless. His plea is supported by his own depositions as A.W.7 and those of his son, Abdul Moeed (A.W.6). As stated by Abdul Moeed, he is married and has two children. He wants to do business of selling electric goods for which he has received training. There is no rebuttal of the aforesaid evidence of the first respondent.

7. The only contention raised by the learned counsel for the appellant against the concurrent finding of the two tribunals below on the question of personal need was that earlier the first respondent had made an ejectment application in respect of the shop in dispute but had withdrawn the same. According to him, he had withdrawn that application after receiving Rs.10,000 as Pagree. There is no evidence to support the alleged payment of the said amount except statement of Riaz Ahmad, respondent No.2, who is an interested person. His statement in that behalf was rebutted by the first respondent while appearing as his own witness. There is no other oral or documentary evidence regarding the payment of Pagree. I am, therefore, unable to agree with the learned counsel for the appellant that the first respondent had withdrawn the earlier application for ejectment by receiving Rs.10,000 as Pagree.

8. The reason given by the first respondent for withdrawing the earlier application was that he wanted the shop in question for his son, Abdul Moeed but as he found that he was not going to do anything serious and was whiling away his time in the company of undesirable people he had withdrawn the application for ejectment. His statement finds support by the testimony of his said son. There is no evidence in rebuttal. It is, therefore, not possible to brush aside the explanation given by the contesting respondent for withdrawing the earlier application.

9. Learned counsel for the appellant did not cite any authority for the proposition that if an ejectment application is withdrawn by a tenant, he is debarred from making any subsequent application. On the other hand, learned counsel for the first respondent referred to Allah Rakha v. Muhammad Shafi 1978 S C M R 437 in which it was ruled that if after making an ejectment application a landlord enters into a compromise with the tenant and consequently withdraws the ejectment application he is not debarred for ever from making a similar application.

10. The upshot of the foregoing discussion is that, in the circumstances of the present case, the withdrawal of the earlier ejectment application by the first respondent (landlord) is inconsequential so far as the plea that his son needs the disputed shop is concerned, and the finding of the two tribunals below that he requires the premises in dispute for his son is not open to any legitimate exception. The appeal is, therefore, dismissed with no order as to costs. The appellant is, however, allowed a period of four months to vacate the premigas in question. M.Y.H./4156/L Appeal dismissed.