2018 PLP 89 (CLCN)

SHAKEEL AHMAD, J.

Through this constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner Abdur Rehman son of Haji Allah Bakhsh has sought the following relief:- On acceptance/issuance of the instant writ petition and by setting aside the impugned judgment/order and decree dated 28.4.2015 passed by learned Additional District Judge-II/Rent Appellate Court, D.I. Khan in appeal and judgment and decree dated 29.5.2014 passed by learned civil Judge-II/Rent Controller, D.I. Khan and by dismissing the rent petition of respondent No. 1 with costs throughout or whatsoever relief this Hon'ble court deems fit may please be extended in favour of petitioner.

2. Precise facts of the case are that on 18.4.2013, the respondent No. 1 filed an application for eviction of the petitioner from suit shop against the respondents on the ground that shop in dispute is required for use, occupation and business by his son in good faith.

3. After service of summons, the respondent No. 1 put his appearance, filed written reply on 13.5.2013 and resisted the same on legal plane as well as on merit. From the divergent pleadings of the parties, following issues were framed.

1. Whether the petitioner has got a cause of action? OPP

2. Whether suit is within time? OPP

3. Whether petitioner has made the shop in question for personal need? OPP

4. Whether petitioner is bound to follow the terms and conditions of rent deed dated 18.01.2001? OPR

5. Whether petition in hand is based on mala fide and is liable to rejection with costs? OPR

6. Whether respondent is entitled to recover Rs.615000/- from the petitioner if petition in hand is decreed in favour of petitioner? OPP

7. Whether the petitioner is entitled to the relief as prayed for in plaint? OPP Relief?

4. Pro and contra evidence was recorded, the respondent No.1, produced his witnesses namely Rana Naveedullah and Rana Awais appeared as PW-1 and PW-2 apart from himself to prove the factum of personal requirement of his son whereas the petitioner examined Ghulam Sadiq RW-1, Shoaib ur Rehman RW-3, apart from his own statement.

5. The learned Rent Controller on appraisal of the evidence adduced by the parties, decided the issue regarding personal need, requirement, use and occupation by the son of the landlord/respondent No. 1 against the petitioner and passed the ejectment order by means of judgment dated 29.5.2014. Feeling aggrieved, the petitioner filed appeal before the learned District Judge, D.I. Khan which was marked to the learned Additional District Judge-II, D.I. Khan, it was dismissed vide order dated 28.4.2015, hence, this petition.

6. The learned counsel for the petitioner argued that the shop in dispute is not required to the respondent No. 1/landlord for personal use, occupation and business of his son namely Ameer Hamza. He next contended that the son of the landlord was not produced as a witness in support of his contention, which is fatal to the case. He further argued that two shops of the landlord are lying vacant in the same premises, wherein the son of the respondent can establish his business conveniently, therefore, the eviction order passed by the learned Rent Controller, and upheld by the appeal Court is illegal and the same are liable to be set aside. He lastly argued that the agreement deed dated 18.01.2001 executed between the petitioner and previous tenant (Muhammad Sajid) of the respondent No. 1/landlord reveals that Rs.615000/- was paid to him as 'Pagri', whereon the respondent No.1/landlord put his signature as a witness, therefore, he is bound to return the same.

7. Conversely, the learned counsel for the respondent No. 1 argued that non-appearance of the son of the landlord/respondent No. 1, for whom, the shop in dispute was required for personal use and occupation, is neither essential nor fatal to the case. He next contended that the contention of the learned counsel for the petitioner for recovery of 'Pagri' paid to previous tenant is not tenable. He further argued that even, if the shop of the landlord/respondent No. 1 is lying vacant, it is the choice and prerogative of the landlord to select any shop for personal use and occupation of his son. Lastly, he prayed for dismissal of the present petition.

8. I have examined the respective contentions of the learned counsel for the parties in the light of relevant provision of law and record of the case.

9. Coming to the point as to whether the suit shop is required to the respondent/petitioner for personal use and occupation of his son in good faith and whether non-appearance of the son of the respondent No. 1 was fatal to the petition for use and occupation of the rented out property by landlord for his son. Perusal of the record reveals that admittedly, the respondent No. 1/father is the landlord and wanted the property in question for his son (Ameer Hamza). Scanning of the evidence produced by the respondent No. 1/landlord reveals that his son is jobless and he intends to carry on/establish business of Bangles in the suit shop, if vacated. The landlord's witnesses are consistent on this point. All the PWs were thoroughly cross-examined, but neither any contradiction could be created in the statement nor anything beneficial to the petitioner/tenant has been brought on record, after considering the evidence, the Rent Controller came to the conclusion that the need was bona fide and passed the eviction order. The petitioner/tenant failed to bring on record in evidence which could show that son of the landlord is occupying any shop in the same urban area in which the suit shop is situated for the purpose of his business or any other such building, suitable for his need.

10. The petitioner/RW-2, in his cross-examination admitted that all the shops of the landlord is in occupation of the tenant. The relevant portion of cross-examination is reproduced below:- When the petitioner himself admitted that all the shops of the landlord are in occupation of the tenants, meaning thereby that there is no vacant shop for occupation, use and business of the son of the respondent No.1/landlord. In such circumstances, the contention of the petitioner that two shops of the respondent/landlord is lying vacant which can be utilized by his son is erroneous and based on misconception. Even otherwise, subsection (4) of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 protects the rights of the tenant, which reads as under:- (4) Where a landlord has was obtained possession of a building land in pursuance of an order made under subparagraph (i) or subparagraph (ii) of paragraph (a) of subsection (3), does not himself, or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining, or having been so occupied is re-let within two months of the said to any person other than the original tenant, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored of possession of such building or rented land and the Controller shall make an order accordingly. The plain reading of the aforesaid Section reflects that if, the landlord obtains possession of a building in pursuance of an order under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of subsection (3) of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 and the son of the landlord does not occupy the suit shop within one month from the date of its possession or having been so occupied is re-let within two months of the said date to any person other than the original tenant. The tenant who has been evicted, may apply to the Rent Controller for an order directing that he shall be restored of possession of such building and the Controller shall make an order accordingly.

11. Coming back to the question of nonappearance of son of the landlord, his non-appearance in the witness box is neither essential nor fatal to the petition for eviction. In this respect reliance can well be placed on the case Nisar Ahmad Sheikh v. Additional District and Sessions Judge, District South and another 2017 MLD 605, wherein it was held as under:- "Non-examination of son by the landlord was neither necessary nor fatal to the eviction petition filed by the landlord on personal bona fide use in respect of his son."

12. Coming to the last contention of the learned counsel for the petitioner regarding return of 'Pagri' paid to the previous tenant, perusal of the agreement deed dated 18.01.2001 reveals that it was executed between the petitioner/tenant and previous tenant of the respondent No. 1 namely Muhammad Sajid, whereon the respondent No. 1 put his signature as a witness. This fact has also been admitted by the petitioner in his cross-examination in the following words:- Astonishingly, the aforesaid agreement is neither registered instrument nor tendered in evidence, therefore, the Courts below rightly held that the agreement deed dated 18.01.2001 is not enforceable by him in the capacity of Rent Controller. However, it is observed that right and remedy, if any, available to the tenant for the recovery of said amount of 'Pagri' from the person who was liable to return it, if it is permissible under the law. The tenant may bring an independent action subject to law (Law of Limitation, 1908) before the appropriate forum.

13. For what has been discussed above, the writ petition, being devoid of any force, is dismissed. MQ/179/P Petition dismissed.