1994 PLP 1244 (MLD)

This SA.O. is directed against the judgment dated 6-3-1993 passed by the learned Additional District Judge, Sialkot; whereby he reversed the order of the Rent Controller, accepted the ejectment petition filed by the respondent and ordered the petitioner's eviction from the disputed shop.

2. Briefly stated the facts of the case are that the respondent instituted an ejectment petition against the appellant on 2-8-1989 on the twin grounds of default in payment of rent and personal need. He urged that the shop was required for the use of his son named Muhammad Ayyub. In his reply, the appellant denied the allegations of default and also asserted that the landlord owned some other shops in the same urban area which were lying vacant, therefore, his need was not genuine or bona fide.

3. On the pleadings of the parties the learned Rent Controller framed the following issues:

(1) Whether the petitioner requires the suit shop bona fidely for use of his son Muhammad Ayub? OPA. (2) Whether the rate of the rent of suit shop is Rs.500 per month? OPA (3) Whether the respondent is wilful defaulter in payment of rent since February, 1987, if so, its effect? O.P.Parties. (4) Relief.

4. The Rent Controller returned findings on all the issues against the respondent and dismissed the petition vide the order dated 4-10-1990. On the respondent's appeal, the first appellate Court reversed findings of the Rent Controller on issue No.1 and ordered the appellant's eviction vide the judgment dated 6-3-1993.

5. The appellant's learned counsel contends that the theory of choice is not applicable in the facts and circumstances of the present case. He explains that the respondent/landlord had suppressed the fact that 4 other shops belonging to him and situated in the same urban area were lying vacant. Moreover, he did not plead that the said shops were not suitable or sufficient for his personal requirements. In his statement, the respondent merely stated that the said shops were located at. considerable distance from the disputed shop. The learned counsel submits that this was hardly a valid reason for ordering the petitioner's eviction. In support of his contention he relies on Seth Abdus Sattar Haji Ahmad v. Sh. Fazal Hussain and another PLD 1966 Lah. (DB)

733. On the other hand, the learned counsel for the respondent submits that the disputed shop is situated in the commercial centre while the other shops are located in the outskirts of the city and were not suitable for business of the respondent's son. He further submits that other shops were jointly owned by the respondent and his brother Muhammad Yousaf and could not be unilaterally occupied by the respondent for business purposes. Lastly he submits that the first appellate Court has duly considered all the relevant facts and circumstances and rightly held that the respondent's need of the disputed shop was genuine. He places reliance on the case of Mrs. Naheed Ghafoor v. Muhammad Rafiq Chaudhry and 2 others 1993 CLC 53 and Sardar Khan v. Riaz Ahmad and others 1986 SCMR 1981. The respondent's learned counsel further submits that even if the details of personal requirements are not given but -".fence has been led to substantiate it, the same is sufficient to fulfil the requirement of the law. In this connection he places reliance on the case of Fasahat Ali v. Mst. Noor Jehan Begum 1991 CLC 1902.

6. There is considerable force in the arguments of the respondents' learned counsel. The disputed shop is situated in the commercial centre and the other shops jointly owned by the respondent alongwith his brother Muhammad Yousuf are situated in the outskirt of the city and are not suitable for the business of the respondent's son. The respondent cannot run the risk or making investment for his business at a place which is far away from the busy commercial centre of the city. Moreover, the other shops cannot be occupied by the respondent without the consent of his brother. Hence the respondent was fully justified to seek the appellant's eviction from the disputed shop. The first appellate Court has duly considered all the relevant facts and circumstances of the case and rightly allowed the respondent's appeal and ordered the appellant's eviction from the disputed shop.

7. The judgment in the case of Seth Abdus Sattar is not of much help to the appellant. In the case it was held that the landlord, besides establishing his requirement in good faith, must prove that he did not occupy any other property in the same urban area suitable for his needs at the relevant time. The respondent/landlord in the present case being joint owner of the other shops cannot be deemed to be in possession of the shops for the purposes of the law. Of course, he can manage to enter into possession of the said shops with the consent of his brother. Moreover, the said shops are far away from the commercial centre and it can be fairly gathered from the statement of the respondent that the said shops are not suitable for business of his son. The matter of choice in selecting premises suitable for his needs lies with the landlord as held in the c4se of Sardar Khan relied upon by the respondent's learned counsel.

8. I find no merit in this appeal which is dismissed leaving the parties to bear their own costs. H.B.T./S-432/L Appeal dismissed