1979 PLP 388 (CLC)

This second appeal is directed against the judgment dated 15-4-1976 passed by the learned Additional District Judge, Lahore in an appeal arising out of a petition for ejectment filed by the respondent against the appellant under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. 2, Briefly stated the facts are that property No. S. W. 111-9458 Gurunanak Road, Krishan Nagar, Lahore was in occupation of the appellant as tenant under the respondent. The respondent filed a petition for ejectment of the appellant from the aforementioned house on the solitary ground of requirement thereof for personal use and occupation. This petition was resisted by the appellant. The learned rent Controller framed the following issues :- (1) Whether the petitioner requires the property in dispute for her personal use occupation? (2) Relief.

3. After recording the evidence and hearing me parties the learned Rent Controller accepted the application for ejectment by order dated 25-11-1974 and directed the appellant to put the respondent in possession thereof within 2 months of the order. Aggrieved by this the appellant took an appeal to the learned Additional District Judge, Lahore. This appeal was, however, dismissed with costs by Judgment dated 15-4-1976. Hence this second appeal.

4. The learned counsel for the appellant contended firstly that the bona fide requirement of the premises in dispute was not established on record which was a condition precedent for passing an order of ejectment on the ground such as taken in this case ; secondly that since A. W. 3, Attorney of respondent had stated that-the house in dispute is needed for the use of one of the sons of the respondent, it was incumbent to produce the son and having not done so, the onus of proof of issue was not discharged by the respondent. He relied in this regard on Ghulam Mohy-ud-Din v. Suba Khan (P L D 1977 Lah. 1094) and Soofi Muhammad Yasin & Brothers v. Dr. Maj. Abdul Ahad Khan (P L D 1976 Kar. 1231) and thirdly that it has not been proved that the assertion made in the petition for ejectment by the respondent that she is living with 12 members of her family in three rooms was correct. He in this regard referred to the statement of A. W. 1 and Exh. R/7 to contend that from the statement it is established that the respondent does not have 12 family members whilst Exh. R/7 shows that the number of rooms of the house in which the respondent was living was five and not three as alleged in the petition.

5. On the other hand the learned counsel for the respondent submitted that there is overwhelming evidence on the record to show that the house in dispute was bona fide required by the respondent for personal use and occupation and/or for the use and occupation of her children. He in this regard referred to the statements of A. W. 1 and A. W. 3 as also that of the appellant himself who appeared as R. W.

3. He also contended that the ground for personal use and occupation can also be availed if the landlord shows that the accommodation already with him or her was insufficient. He further submitted that the bona fide personal requirement is a question of fact and there being concurrent findings on this point by both the Courts below, there is no ground for interference in the orders of the Courts below in a second appeal.

6. In reply to the contentions raised by the learned counsel for the appellant he submitted that the same stands answered by the Supreme Court authority in case of Khuda Bakhsh v. S. M. Habib Shah Hashmi (PLJ1978 SC411). 7. 1 am of the view that the contentions raised by the learned counsel for the appellant have no force. The second and the third contention purported to convey that the findings of the Courts below on issue No. 1 were not correct and that onus of proof thereof was not discharged by the respondent. I have gone through the evidence on record and am of the view that it has been very correctly held by the Courts below that the respondent has been able to discharge the onus of issue No. 1, effectively.

8. The evidence of respondent's witnesses who appeared as A. Ws. 1, and 3 abundantly establishes the assertion made by her in the petition for ejectment that the accommodation in which she and her family members were living is insufficient for their needs. A. W. 1 has in the examination in-chief stated that there are 13 or 14 members of respondents family an that there is only three rooms' accommodation available with them an that the articles of dowery received in marriage of one of the sons of the respondent is lying in an adjoining house. In the cross-examination affirmed the above position, gave the names of all the children of the respondent and categorically stated that the respondent along with he husband, sons and daughters, son's wife and son's two children were all living in the same house. Again Hamidullah, attorney and husband of the respondent appearing as A. W. 3, corroborated the statements of the witness of the respondent and nothing could be brought out in cross-examination against the assertion made in the petition for ejectment. The statement R. W. 3, the appellant himself in very material respects supports the contentions of the respondent. He had deposed that one of the respondent's son is married who lives with her; that she has four sons and 3/4 daughters and further that except the house in dispute the respondent bad no other house. With this overwhelming evidence it can by no stretch of imagination he said that the respondent had not discharged the onus of the issue question. As to the contents of Exh. R,/7 that it shows the accommodation of the house of respondent as consisting of 5 rooms, suffice it to say that there could be 3 rooms for living purposes and some small rooms for store etc. which for the purpose of assessment are taken as rooms. This in any way does not materially effect the position. Apart from the above position by which it is clearly established that the findings of the . Courts below this issue have been correctly recorded, it may be pointed out that the issue essentially being a question of fact and there being concurrent findings thereon by the Courts below, the same could not be interfered with in second appeal even if the findings had been erroneous.

9. The submission, by the learned counsel that production of the son for whose occupation the house was required as a witness was essential and by not producing him the issue was not proved is also not tenable in the attendant circumstances of the case. It has been brought on record through the statement of the attorney of the respondent that the house is needed for the use of one of the sons and there is nothing on record to show that the assertion so made was incorrect. The authorities cited by the appellant are also not applicable to the case. The authority Ghulam Mohyuddin Suba Khan does not lay down that both the landlord and the person for whose bone fide need the eviction is sought, have to be produced as witness if the ground for eviction is requirement for personal use and occupation. It may also be mentioned here that the Supreme Court's pronouncement in Khuda Bakhsh S. M. Habib Shah Hashmi also very squarely applies to the facts of the present case.

10. Adverting now to the first contention it may be observed that in the light of the above discussion it is manifest that the same is not well founded. Besides the position that the respondent has established the bona fide requirement of the house in dispute by her for own occupation, it may also be pointed out that the provisions of section 13 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 afford an adequate cheque on the male fides of a landlord who after obtaining eviction of a tenant on the ground of personal need does not occupy the premises within one month from the date of taking over possession, as the tenant can then ask for restoration of possession.

11. In view of the foregoing discussion, this appeal is without merit and is dismissed with costs. At this stage the learned counsel for the appellant submitted that the appellant may be allowed sometime for handing over the possession. The learned counsel for the respondent submitted that it' time is to be allowed, it should only be subject to the appellant handing over receipts of deposit of rent to the respondent. I accordingly allow 15 days time to the appellant for handing over possession of the disputed premises to the respondent subject to his handing over receipts of deposit of rent to the respondent within 3 days from today. Needless to point out that in case the appellant does not deliver possession within the period of 15 days as allowed above or does not hand over' receipts within 3 days, the respondent would be entitled to obtain possession through the process of Court. M. A. K. Appeal allowed.