1993 PLP 933 (MLD)

Date of hearing: 18th January, 1993, This judgment shall dispose of FA.O. Nos.110 and 111 of 1990.

2. Respondents in these two appeals are tenants in respect of two shops situated in Main Market Commercial Area, Lahore Cantonment Cooperative Housing Society, Lahore Cantt. The appellant filed two separate applications against them for their eviction from the shops in their occupation on account of default in payment of rent and personal need. These applications were dismissed by the Rent Controller on 9th June, 1990.

3. Aggrieved by that order, the appellant has filed these two first appeals under section 24 of the Cantonments Rent Restriction (Amendment) Ordinance, 1985.

4. Learned counsel for the appellant has, in support of these appeals, challenged 'the findings of the Rent Controller only on the issue relating to personal need. It was submitted that the appellant is contractor and wishes to establish his office in the two shops and due to lack of proper accommodation; he has been forced to open his office on the first floor of the same property in a residential portion.

5. Earlier, when these appeals were heard on 3rd February, 1992, this Court felt the necessity of having an inquiry held into the question as to whether the premises where the landlord/appellant was running his office could be used for commercial purposes. Accordingly, the Rent Controller was directed to do the needful. In compliance with that order, the Rent Controller recorded further evidence and has submitted his report accordingly wherein it was opined that the premises presently being used by the appellant as office are residential in nature and cannot be used for commercial purposes.

6. Learned counsel for the appellant has argued that the Rent Controller had acted arbitrarily while rejecting the applications filed by the petitioner/appellant mainly on the ground that the petitioner had not mentioned in his ejectment application that he was in occupation of other property where he was running his office. In support this contention, reliance has been placed on Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070 and Muhammad Boota v. Haji Ghulam Mustafa etc. 1991 MLD 2385. It was explained by the learned counsel that when ejectment petition was filed, the office of the petitioner was not located in the upper portion of the shops to which he shifted subsequently and, therefore, the fact that he was occupying the upper portion of building, could not have been mentioned in the ejectment petition. It was also contended that the premises, in which the petitioner has opened his office, being residential in nature, cannot be used for non-residential purpose and occupation of such a property cannot be the basis for dismissal of the ejectment petition. Raja Ourban Khan v. Begum M.M. Sharif and another 1980 S C M R 590 and Rana Khalil-ur-Rehman v. Additional District Judge, Lahore P L D 1983 Lah.331 have also been cited by the petitioner's learned counsel.

7. Arguments of the learned counsel for the respondent in F.A.O. No.110 of 1990 have been heard. Learned counsel for the respondent in other connected F.A. No.III of 1990 has not appeared despite repeated calls. It is now 1-30 p.m. He cannot be awaited any further.

8. The facts which stand established on the record and about which there is no dispute, are that the appellant is working as A-Class Contractor and is presently occupying flats situate at the upper portion of the building in which the shops in dispute are located for the purpose of his office. As has been found by the Rent Controller, the flats are residential in nature and cannot be occupied for commercial purposes. Consequently, the occupation of such property cannot be bar in the way of the landlord in having non-residential premises vacated for own need.

9. Learned counsel for the respondent, has however, contended that notwithstanding that the flats were built for residential purposes, but as the same have been used for commercial purposes, they assumed commercial/non-residential character. This contention of the learned counsel cannot be accepted in view of the law laid down in Raja Qurban Khan v. Begum M.M. Sharif and another 1980 S C M R 590 and Rana Khalil-ur- Rehman v. Additional District Judge, Lahore P L D 83 Lah.331 which is to the effect that notwithstanding its user for non-residential purpose the property built for residential purposes remains residential in nature. .

10. Be' that as it may, the appellant has brought on record sufficient evidence to show that his business is bring adversely affected on account of his office being situated on the upper portion rather than the ground-floor. It cannot be denied that the occupation of ground-floor for commercial purpose is snore beneficial and useful than the accommodation on the first floor.

11. Even otherwise, it is well-settled that the landlord is the best judge of the suitability of the property where he would like to carry on his business and his choice, if otherwise reasonable, cannot be substituted by the Rent Controller nor his own opinion.

12. The main emphasis of the learned counsel for the respondent is that the need of the appellant is tot bona fide. He has pointed out that the case set up by the appellant in his ejectment petition was that he was not occupying any premises for his office and the fact that he already maintained an office in the upper portion of this property was purposely concealed and withheld. As ruled by the Supreme Court in Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 S C M R 1070, it is not obligatory for the landlord to disclose that he is in occupation of other premises not suitable for his need in the ejectment petition. To the same effect is the judgment in Muhammad Boota v. Haji Ghulam Mustafa etc. 1991 M L D 2385. In the present case, the landlord, while appearing as witness, has categorically stated that due to lack of accommodation, he was forced to open his office during the pendency of ejectment petition in residential flats. This statement of the landlord is also corroborated by other witnesses examined by him viz. Raja Ghazanfar Ali C (P.W.1), Muhammad Qasim (P.W.2) and Muhammad Ibrahim (P.W.3).

13. Nothing substantial has been brought on the record to show that application has not been filed bona fide. R.W.1 merely stated that the appellant is running his business in the upper portion of the shop R.W.2 admitted that he was close friend of the respondent. Although he deposed that the ejectment petition has been filed with a view to have the rent enhanced, but no details in this behalf were furnished. It is also to be noted that there is no allegation in p the reply to the ejectment petition filed by the respondent that the appellant had ever asked him to enhance the rent or that the ejectment petition has been filed on account of his refusal to agree to the increase in rent. Furthermore, there is sufficient protection available to the tenant/respondent in form of section 17(9) of the Rent Restriction Ordinance, 1963, which provides that in case of failure of landlord to occupy the premises, the possession has to be restored to the tenant. For the reasons aforesaid, the impugned order of the Rent Controller is set aside and ejectment petition filed by the appellant against the respondent is accepted with no order as to costs 'The appellants are allowed four months' time to vacate the shops. AA./M-846/L Appeal accepted.