19761 C M R 459 (PLP)

DORAB PATEL, J.‑This petition for leave to appeal has been filed against an order of a learned Single Judge of the Lahore High Court by which the learned Single Judge dismissed the petitioner's appeal against the order of the District Judge, Jhelum, directing the petitioner's eviction from the‑ shop leased to him by the respondents. We will refer to this shop as the said shop. According to Mr. Ansari, it was situated in the commercial area of Jhelum and Was evacuee property and when settlement operations began, the said shop, the thara outside it, the chaubara over it and another shop were jointly transferred by the Settle ment Department to Muhammad Islam, the predecessor‑ in‑interest of the respondents, and to one Ghulam Mohyuddin, Muhammad Islam's brother. However, although according to learned counsel, the said shop was trans ferred jointly to the said Muhammad Islam and his brother, the petitioner had taken a lease o: the said shop in 1964 from Muhammad Islam only and had paid rent to him only .and not jointly to him and to his brother. Muhammad Islam died some years ago, leaving behind as his legal heirs his widow and seven children who were all minors on the date of their father's death. Muhammad Islam's window and his seven children are the respondents in this petition, and the second respondent who is now a major, is running a goldsmith's business on the thara outside the said shop. On the allegation that they required the said shop for their own business the respondents filed an eviction application against the petitioner for his eviction in the Court of the Rent Controller, Jhelum and the petitioner restricted his eviction on the ground that the respondents did not require the shop in good faith. The petitioner has withheld a copy of his written statement, but his case in arguments before the Rent Controller was that the require ment of the respondents for the said shop was not in good faith because they could run their business in the chaubara over the said shop and also because Ghulam Mohyuddin, who is the uncle of the respondents Nos. 2 to g had obtained possession of the other shop and had relet it at higher rent to some other person. The Rent Controller dismissed the eviction application on several grounds. The second respondent was admittedly carrying on business on the thara and, though his order is not clear, the Rent Controller appears to have thought that this thara together with the chaubara over the shop was more than sufficient for the business requirements of the respondents. Further, the Rent Controller also hold that the respondents owned the said shop and the other shop jointly with their uncle, and as their uncle had relet the other shop; the Rent Controller held on this ground also that the eviction application was not filed in goon faith, accordingly, he dismissed it. The respondents filed an appeal in the District Court, Jhelum, and the learned District Judge pointed out that the thara on which the second respondent carried on his business as goldsmith was only two feet wide and was exposed "try the sun arid rain". He also pointed out that the petitioners own witnesses had stated that the petitioner had offered higher rent for the said shop to the respondents but the offer hail been refused. The learned District Judge was also satisfied fat late respondents bad no other suitable premises for carrying on the business of a goldsmith, therefore, beset aside the Rent Controller's order and ordered the petitioner's eviction. The petitioner, therefore, filed a second appeal in the Lahore High Court which was dismissed in limine in a very short order. Pence this petition for leave. Mr. Ansari submitted that the learned Single Judge in the High Court had erred in dismissed; the appeal in limine because it raised questions, which could not be decided without 'a careful examination of the evidence. Learned counsel could not explain why the petitioner had not produced certified copies of the depositions in the High Court. But, according to learned counsel, this was not necessary, because a second appeal could only be dismissed Its limine after the record had been summoned and examined by the Judge concerned. The submission is contrary to the express pro-provisions of rule 1 of Order XLI of the Civil Procedure Code and it rejected. Mr. Ansari s secured submission was that the respondents had to prove that they had no not suitable premises for running their business as gold smith. That is correct, but they knave proved that they nave no other she liable. In order meet this difficulty, Mr. Ansari stated that the District Judge had arrest in holding that the thara was not suitable for carry on the business of a goldsmith. We referred earlier to the reasons given by the learned District Judge for his view, and it seems to us that its no other view was possible. But Mr. Ansari relied on the fact that the respondents owned the chaubara ovar the said shop. Now whilst rejecting the plea that the chaubara was not suitable for a goldsmith's business. The learned District Judge omitted to give reasons for his view, therefore, the submission was that the District Court had committed an error of law. The submission does not merit serious examination, A shop on a first floor is obviously not as suitable for a goldsmith's business as a shop on the ground floor, and here we may note that at an earlier stage of the case before us Moulvi Sirajul Haq who appeared on behalf of the caveators stated that the respondents were willing to lease the chaubara to the petitioner. The petitioner rejected this offer because he did not consider the chaubara suitable for his business as a goldsmith. As the respondents run the same business, the submission that the chaubara was suitable for their business does no impress us, and was rightly rejected by the learned District Judge. Mr. Ansari's only other submission had reference to his contention that the respondents owned the said shop and another shop jointly with the said Ghulam Mohyuddin, but as Ghulam Mohyuddin had evicted a tenant from that other shop and then relet it at higher rent to some one else, the sub mission was that these facts established the mala Jades of the claim of the respondents. As. the High Court did not examine this question, we have heard learned counsel at length on it, and, at the outset we have to observe that the con tention that the respondents owned any property jointly with Ghulam Mohyuddin is not supported by the facts. Mr. Ansari, however; relied on a statement of the second respondent in his cross‑examination, and it was on the basis of this statement that the Rent Controller held that the respondents and Ghulam Mohyuddin jointly owned the said shop and another shop. In the first place, it is doubtful if the construction placed on the second respondent's statement by the Rent Controller as correct. Secondly the petitioner and his witnesses themselves stated that the petitioner had obtained the lease of the said shop from Muhammad Islam, deceased, and had paid rent to Muhammad Islam deceased only and after the death of Muhammad Islam, to the respondents. In the face of this evidence, it is not possible to understand how the Rent Controller took the view that the respondents owned property jointly with Ghulam Mohyuddin. However, even if it is assumed that they owned property jointly, the fact that Ghulam Mohyuddin had eased out a shop at higher rent may reset against his bona fides. How can his conduct, react against the good faith of the respondents? Mr. Ansari thought that as the shops were jointly corned, the second respondent should have opened his business in that other shop and, as he did not, it could not be said that he required the said 'shop in good faith or that he did not have any other premises suitable for his business. That other shop was apparently let out in 1972, therefore', the fact that it had been let out would react against the claim of the respondents on two assumptions. The first of these assumptions is that they were entitled to occupy that shop against the wishes of Ghulam Mohyoddin, and the second assumption is that the second respondent was a ma or and bad learnt the business of a goldsmith four years ago. The second assumption relates to a question of fact on which there is not '"a shred of evidence. Additionally, we observed that the petitioner's witnesses admitted that the petitioner had offered higher rent for the said shop to the second respondent who had refused it. Thus, the petitioner's own evidence proves the good faith of the respondents, and the view to he contrary by the Rent Controller is based on a total misreading of evidence. We regret to state that it is also based on a misreading of the law because a it turned on questions of fact which were not pleaded, therefore, this objection should have been dismissed on this short ground. The view taken by the learned District Judge his well considered order is the correct view. The petition is without m it and is dismissed. Petition dismissed.