1980 PLP 281 (CLC)

S. 13(3)(a) & (4)-Ejectment-Personal need-Ejectment sought under S. 13(3)(x)-Subject to restoration of original tenancy right, under S. 13(4) of Ordinance if landlord obtaining possession in pursuance of an order made under S. 13(3) does not himself occupy it within one month from date of obtaining possession of building having been so occupied is re-let within two months of said date to any person other than original tenant. Mian Nusraiullah for Appellant. Muhammad Yaqub Khan for Respondent. Date of hearing : 29th September, 1979. This appeal is directed against the order dated 24th June, 1978 passed by the learned Additional District Judge, Lahore rejecting the appeal filed by the appellant. 2. The brief facts of the case are that the respondent filed an application for eviction of the appellant under section 13 of the West Pakistan Rent Restriction Ordinance, 1959 from the residential building I bearing No. 88-C, situated at Allama Iqbat Road, Lahore on the sole ground of personal need. The appellant (tenant filed) written statement and on the basis of the plea of the parties the following preliminary issue was framed. "Whether the relationship of landlord and tenant exists between the parties ?" 3. Both the parties adduced their evidence on this issue and the learned Rent Controller after recording the evidence and hearing the parties found the above issue vide its order dated 16-1-1978 against the appellant with the observation that the appellant had neither paid nor tendered rent due to the respondent. As a result of it he further directed the appellant to hand over the vacant possession of the disputed premises to the respondent, the landlord within one month time, failing that, coercive process of law would be pressed into service for his ejectment. 4. As against this order of the learned Rent Controller, the appel lant filed an appeal in which the lower appellate Court also affirmed the ejectment order passed by the learned Rent Controller vide its order dated 24-6-1978. 5. As against the order of the lower Appellate Court the present Second Appeal has been filed. The learned counsel for the appellant contended that the finding arrived at by the lower Court on the prelimi nary issue is based upon misreading of evidence and misconstruing of certain documents placed on record. With the assistance of the learned counsel of the parties I glanced through the entire evidence and found nothing on the record to substantiate the contention raised by the learned counsel of the appellant. There is overwhelming evidence on record to arrive at an irresistible conclusion to the effect that the relation ship of landlord and tenant exist between the parties and there is nothing to disturb the concurrent finding of the Courts below. In the instant case the dispute does not end here. It is very strange to note that the learned Rent Controller while deciding the preliminary issue in favour of the respondent landlord, directed the eviction of the appellant on the basis of default from the disputed premises of his own accord on the basis of default which has never been pleaded or raised any where in his application as one of the grounds for seeking the ejectment of the appel lant. In fact the learned Rent Controller should not have directed the ejectment of the appellant but should have proceeded further with the case to arrive at his own conclusion regarding the genuineness of the allegation of personal necessity of the landlord as it was the only ground taken by the respondent for seeking the eviction of the appellant from the premises in dispute. A perusal of the original application filed by the respondent shows that the respondent applied for the eviction of the appellant on the ground of personal necessity under section 13(3)(a) and pot under section 13(2) of the Ordinance. However, he failed to notice the obvious distinction between these two separate statutory, grounds. Under section 13(2)(i) of the said Ordinance, on the proof of alleged wilfull default, a tenant loses his tenancy right and becomes liable to ejectment from the premises in his possession until he enters into a new contract of tenancy. However, the ejectment sought under section 13(3)(a of the Ordinance is subject to the restoration of the original tenancy right under section.13(4) of the Ordinance if the landlord who has obtained possession of a building in pursuance of an order made under sec tion 13(3) does not himself occupy it within Nne month of the date o obtaining possession or having been so occupied is relet, Within two months of the said date to any person other than the original tenant under the order of the Rent Controller passed on an application submitted by the original tenant. 6. For the foregoing I therefore, only uphold the con-current finding arrived at by the Rent Controller as well as the learned lower Appellate Court regarding the existence of relationship of landlord and tenant between the parties set aside the direction of ejectment of the appellant from the premises in dispute issued by the Rent .Controller and confirmed by the learned lower Appellate Court vide its judgment dated 24-6-1978, and remand the case to the learned Rent Controller to proceed with the case on merits according to law. M. Y. M. Case remanded.