1985 PLP 1769 (SCMR)

Ghulam Farooq v. Fazal Ghani 1980 C L C 1082 ref. (b) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑Ejectment on ground of personal need of landlord‑‑Bona fide of landlord‑‑Case being that of remand to appellate authority where tenant (petitioner) would get an opportunity of demonstrating lack of bona fide of landlord or insufficiency of his need, leave to appeal was refused in circumstances. Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Respondent No. 1 in person. Nemo for Respondent No.

2. Date of hearing: 16th April. 1985. SHAFIUR RAHMAN, J.‑‑The tenants by two separate petitions seek leave to appeal against a consolidated judgment of the Lahore High Court, dated 23‑12‑1984 whereby two separate constitutional petitions filed by the respondents landlord were allowed and the proceedings were remanded to the District Judge, the appellate authority, for decision afresh. The respondent landlord sought eviction of three tenants from three shops on the ground of his personal need of all the three shops. His case was that he had returned from abroad, had sufficient funds and wanted to establish a business befitting his resources, experience and standing and that he needed the three shops. The Rent Controller rejected his claim, inter alia, on the ground that the respondent has never "run any business" and that "he is an aged person". It was also held that ejectment had been ordered in respect of one shop and that should suffice. On appeal the District Judge maintained this order but took a legal view on the basis of decision in Ghulam Farooq v. Fazal Ghani 1980 C L C 1082 that no landlord can simultaneously ask for the ejectment of a tenant for more than one shop on the ground of personal need. The High Court in the constitutional jurisdiction has corrected what it considered to be a legal error in taking such a restricted view of the need of the landlord. Similarly, it was held that in deeming the vacation of one shop as sufficient for the requirement of the landlord without objectively ascertaining his requirement was an untenable view and could not form the basis of the decision. The High Court held that law gives the landlord a choice and if he says that he needs three of them at the same time, it has to be considered rather in a pragmatic manner. The learned counsel for the petitioner contends that the finding recorded by the High Court while remanding the case to the first appellate authority has tied the hands of the appellate authority and an ejectment order will result against the petitioner. After hearing the learned counsel for the petitioner we find that on the legal plane the view taken by the High Court suffers from no legal infirmity such as may require further examination by this Court. However, it is for the Rent Controller and the first appellate authority to ascertain and determine the exact need of the respondent and then decide upon the question of passing an order of ejectment. It is primarily the function of the Rent Controller and of the appellate authority to ascertain from evidence the nature of the business that the respondent wants to set up and its requirements and if they are satisfied that more than one shop is needed they should not necessarily restrict the claim of the landlord to one shop because there is no such compulsion of law in the matter particularly so where the shops happen to be adjoining and he being the owner landlord can utilise them in accordance with his extended or reduced needs as the case be. As it is a case of remand to the appellate authority the petitioner will get an opportunity of demonstrating the lack of bona fide of the landlord or the insufficiency of his need. These are not the cases fit for grant of leave to appeal at this stage. Leave is, therefore, refused. M.B.A.??????????????????????????????????????????????????????????????????????????????????????????????????????????? Leave refused.