2009 PLP 2224 (YLR)

ARSHAD MAHMOOD, J.

This second appeal impugns the order dated 21-4-2008 of the learned Additional District Judge upholding the order of ejectment dated 28-4-2007 of the learned Senior Civil Judge Layyah while exercising the powers of Rent Controller.

2. Backdrop of the case is that appellant is tenant vide agreement dated 13-3-2003 in shop situated within the Municipal limits of Chowk Azam, Tehsil District Layyah fully described in the caption of the ejectment petition which was originally owned by Dr. Salman Afghani. Respondents purchased the said shop through sale-deed dated 8-10-2005. Previous owner of the shop gave notice to the appellant directing him to pay monthly rent to the respondents but respondents resorted to ejectment petition on the grounds of default, subletting of shop, damage to property and bona fide personal need. Appellant contested the petition by filing written reply. He admitted the relationship of landlord and tenant inter se the parties but controverted all other allegations. Divergent pleadings of the parties culminated into issues. Parties were called upon to produce evidence in respect of their respective pleadings and after conclusion of the trial vide order dated 28-4-2007 ejectment petition was allowed and appellant was directed to hand over the vacant possession of the shop within two months. Appellant questioned the said order through appeal which was dismissed by the appellate authority vide order dated 21-4-2008. Hence this second appeal against order.

3. Learned counsel for the appellant while curtailing the controversy at the very outset submitted that all other grounds excepting personal need were dismissed by the learned Rent Controller, therefore, he confined his arguments to this score alone. He argued with vehemence that parties are professional rivals engaged in the business of sweets, therefore, the respondents soon after purchasing the shop on 8-10-2005 filed the ejectment petition on 30-11-2005 which speaks volumes about their mala fide. Learned counsel emphasized that landlord failed to comply with the mandatory requirement of disclosing the material facts in the ejectment petition i.e. that he had other shops in the vicinity and they were not suitable for his personal need and argued that this irregularity goes to the root of case and knocks down the very substratum of landlord's claim. To substantiate his argument learned counsel relied heavily upon "Muhammad Hafeez and another v. District Judge, Karachi East and others" (2008 SCMR 398).

4. On the other hand learned counsel for the respondents stood behind the concurrent findings of the two forums below and argued that disclosure of other property and explanation qua its non-suitability for landlord's business is not mandatory and the testimony of landlord on oath, not shaken in cross-examination is sufficient to establish his personal bona fide need. Learned counsel referred to "Messrs. F.K. Irani and Co. v. Begum Feroze" (1996 SCMR 1178) and "Malik Talkies Distributors v. Khawaja Mehboob Ellahi" (2004 MLD 724) and contended that availability of other shops in the locality does not disentitle the respondents to apply for ejectment on the ground of personal requirement.

5. I have given due consideration to the arguments advanced on behalf of parties and examined the record.

6. Both the forums below after appraising of evidence recorded findings of fact against the appellant. Although respondent/landlords failed to disclose in their ejectment petition that they had other shops in the locality and that the same were not suitable for their personal requirement yet while appearing as AW-1 Muhammad Afzal respondent stated that he had other shops in the Bazar but those shops were not at the front, therefore, not suitable for his business. Even otherwise, failure on the part of landlords seeking ejectment of non-residential property to mention in their ejectment petition that they were not occupying similar commercial property in the same area suitable for their needs, is not fatal. Reference can be made to "Haji Mohibullah & C. and others v. Khawaja Bahaudin" (1990 SCMR 1070). As per dictum of law laid down by this Court in "Tahir Umar v. Messrs Bata Shoes (Pakistan) Limited and 3 others" (1991 MLD 1236) disclosure by landlords in their eviction petition that they were occupying any other shop is not necessary and it is a prerogative of landlords to select any shop for their business. No ground for interference in the concurrent findings of the forums below has been made out. Resultantly this appeal has no force and is accordingly dismissed.

7. Admittedly according to grounds of this appeal appellant has already been ejected, therefore, no cushion period is granted to him. M.H./J-23/L Second appeal dismissed.