1987 PLP 2002 (CLC)

This judgment will dispose of writ petitions Nos. 1262/86 and 1263/86, since both the petitions are directed against the same order.

2. Brief facts, common to both the petitions, are that 3 ejectment petitions were instituted on 11‑2‑1982, in the Court of learned Rent Controller, Chiniot, District Jhang, jointly by Abdul Ghafoor Khan, Manzoor Ahmad Khan and Imran Arshad, all sons of Abdul Shakoor Khan, against petitioners in both the writ petitions (and against a third person‑tenant of the third shop, who later on compromised with respondent No.2 and handed over vacant possession of the shop to him, thus, the third ejectment petition was not pressed having become infructuous, seeking ejectment of the shops in possession of petitioners in both the petitions on three grounds, (i) personal need, (ii) default in the payment of rent and (iii) damage to the property. It is relevant to mention at this juncture that these shops were rented out to petitioners by the late father of respondents Nos.l, 2 and 3, consequent upon his demise, these were, inter alia, inherited by respondents Nos. 1, 2 and 3 jointly and mutation in this regard was duly entered in the revenue record. It may further be mentioned that Imran Arshad at the time of filing of ejectment petitions waa a minor, aged 17 years, and was prosecuting ejectment petition through respondent No .l, his real elder brother.

3. Three issues were framed by the learned Rent Controller (apart from the relief), which are reproduced herein below:‑ (1) Whether respondent has defaulted in the payment of rent? O.P.A. \ (2) Whether the applicants require the disputed shop in good faith for their personal use? O.P.A. (3) Whether the respondent has damaged and decreased the utility and value of the disputed shop? 0 . P . A .

4. The two ejecmtent petitions were accepted by the learned Rent Controller by holding issue No.2 in favour of respondents in these writ petitions i.e. on the ground of bona fide need, vide a order dated 30‑6‑1985 directing ejectment of petitioners in the present writ petitions. Two separate appeals were filed before the learned District Judge, Jhang, which were dismissed vide order dated 25‑2‑1986, upholding, findings of the learned Rent Controller on issue No.2. Hence these petitions.

5. These petitions were admitted for regular hearing vide an order dated 27‑4‑1986 and record was summoned. I have examined the record with the assistance of learned counsel for the parties.

6. It was contended on behalf of petitioners that ejectment was sought on the basis of personal need of joint petitioner, whereas, later on in the evidence of A.W.4 it was stated that each shop is required by each one of petitioners for personal need. Since this was a departure from the pleadings as stated in the ejectment petitions; therefore, ejectment petitions should have been amended so as to categorically mention this substance. I am of the view that since Code of Civil Procedure is not applicable to' proceedings under Rent A Restriction Ordinance is stricto senso; therefore, in the absence of amendment to the petition, petitioners before this Court were not put at a disadvantage in any material particularity because they had full opportunity to cross‑examine AW‑4 and in fact a perusal of the evidence shows that in cross‑examination, a categorical stand was taken to the effect that each shop was required by each one of the petitioners who were joint owners of the two shops in question (third shop stood vacated by the tenant, possession whereof was handed over to third joint owner i.e. Manzoor Ahmad Khan, under a compromise, ho is carrying on his business in that shop). As mentioned earlier i.e. factum of joint ownership was recorded in the revenue record after the demise of their father.

7. Further, the learned counsel for the petitioners has referred to para 6 of the impugned order wherein the learned District Judge, Jhang, having considered the evidence before him, upheld findings of the learned Rent Controller with particularity and in totality on issue No.2; however it has been pointed out to me that the learned District Judge, only upheld personal need of respondent No.1, and in this regard, referred to the following sentence:‑ "With this evidence on the record, therefore, I am of the considered opinion that had the respondents not been in the bona fide need of the shop in dispute for the use of respondent No.1, they would not have gone in for‑eviction of the appellant from the shop in dispute." This sentence cannot be read in isolation. It is to be read in the context of the contents of the paragraph in totality. The learned District Judge categorically upheld finding of the learned Rent Controller on issue No.

2. This point of view further finds support from the fact that there were two appeals before the learned District Judge which were disposed of by the same judgment; therefore, respondent No.1 i.e. Abdul Ghafoor Khan, was acting in one case on his behalf, while in the other he was acting as next friend on behalf of Imran Arshad, his younger brother (minor). The shop, in one case, was required for bona fide personal need of respondent No.1, while in the other case was required for the need of respondent No.3. The bona fide requirement of respondents is further established by the fact that one of the shops which was got vacated by a compromise, possession whereof was acquired by respondent No.2, who is carrying on his business in those premises, and has neither sublet nor has otherwise, dealt with the same in a manner so to cast any doubt on the stance of personal need of respondents.

8. Since this is a cube of' joint ownership of the shops in question which have devolved upon respondent Nos.1 and 2 on account of inheritance and there is a concurrent findings of fact on the issue of personal need by both the Courts below; threfore, I am not inclined to interfere in this constitutional jurisdiction on account of certain technicalities which would unnecessarily prolong the litigation and agony of the parties. In this view of the matter, both petitions are dismissed. However, there will be no order as to costs. H.B.T./S‑54/L Petition dismissed.