2013 PLP 882 (MLD)

SHAH JEHAN KHAN AKHUNDZADA, J.

This appeal is directed against the order dated 23-5-2012 passed by the learned Controller of Rents Cantonment Board Nowshera through which the ejectment petition filed by Miraj-ud-Din appellant/landlord for eviction of Ali Ahmad Siddique and his son Shoaib Ahmad Siddique respondents/tenants from the shops in question, was dismissed.

2. Briefly stated the facts are that Miraj-ud-Din appellant/landlord instituted an application on 9-6-2009 under section 17 of the Cantonments Rent Restriction Act, 1963 (XI of 1963) for ejectment of Ali Ahmad Siddique and his son Shoaib Ahmad Siddique respondents/ tenants from the suit shops bearing Nos. 1081/1-B and 1081/1-C situated at Chungi Street, Main Bazar Nowshera Cantt: on the grounds of personal need and default in payment of rent. In reply submitted by the respondents, the claim of the appellant/landlord was denied and the ejectment petition was alleged to have been filed malafidely to fetch higher rent. Out of the pleadings of the parties, the following five issues were formulated for trial:-- ISSUES: (1) Whether the petitioner has got a cause of action? (2) Whether the petitioner needs the shops for his personal bona fide need? (3) Whether the respondent is wilful defaulter since March 200(sic)? (4) Whether the application is liable to be dismissed on account of mis-joinder and non-joinder of necessary parties? (5) Relief.

3. After recording pro and contra evidence of the parties and hearing of their counsel, the learned Controller of Rents Cantonment Board, Nowshera vide his judgment/order dated 23-5-2012 which is impugned in the instant appeal dismissed the ejectment petition of the appellant. Feeling aggrieved from the judgment/order of the trial Court, the appellant/landlord has preferred the instant appeal.

4. I have heard the learned counsel for the parties and have also gone through the record of the case with their assistance.

5. In the instant case, ejectment is sought on the grounds of personal requirement of the appellant/landlord and default in payment of rent of the suit premises. In support of his claim the appellant appeared himself as P.W.1 and stated in clear terms that the suit shops are required by him for his personal use and is ready to extend any kind of guarantee that after vacation of the suit shops by the respondents/tenants, the same will not be given to any one on rent. Rizwanullah appeared as P.W.2 and supported the stance of the appellant/landlord. As against this Shuaib Ahmad Siddique respondent No.2/tenant in his statement recorded as R.W.1, repudiated the claim of the appellant/landlord and reiterated that the ejectment petition has been filed with mala fide intention and that the appellant/landlord is in the habit of making such like application with sole purpose to enhance rent. He also maintained that the shops in question are not required by the appellant/landlord in good faith for his personal need as he has got so many other shops and one Al-Habib Hotel in Nowshera Gantt. The respondents/tenants produced Khawaja Furkh Latif and Abid Mehmood Afghani as R.W.2 and R.W.4 who are representative of Anjuman-e-Tajiran Nowshera Cantt. They had deposed that a jirga between the parties had been convened for resolving the dispute in which the appellant/landlord was represented through his brother Allauddin who demanded for increase of rent amounting to Rs.15000 in respect of the suit shops which was not accepted by the respondents/tenants. Muhammad Naseer R.W.3 had deposed that he remained tenant in another shop owned by the brother of the appellant/landlord which were got vacated with this promise on oath that after vacating the same, it will be reconstruction and will be given to him but the said promise has not been honoured by the said landlord.

6. Perusal of the entire evidence produced in the case clearly shows that the suit shops are required by the appellant/landlord in good faith for his personal use and occupation and he has succeeded to prove that his demand is genuine, reasonable and sincere. It may be pertinent to mention here that the appellant/landlord appeared as P.W.1 in Court and fully substantiated his claim. He was subjected to the test of lengthy and searching cross-examination to shatter his testimony but nothing favourable could be elicited from him. The other witness namely Rizwanullah P.W.2 examined on behalf of the appellant/landlord has also supported his claim. The evidence on the record is by all means sufficient to prove the genuine demand of the appellant/landlord. There is evidence qualitative in nature to establish that the rented premises are required by the appellant/landlord in good faith and his demand is genuine. More so, in view of the safeguard provided in section 17(6) of the Cantonments Rent Restriction Act, 1963, the assertion on oath by the landlord that he requires the property in good faith for his personal use shall be sufficient to accept his bona fides if such assertions are consistent and in conformity with the averments of the application. I find the averments of the application in line and in total harmony with the statement of the appellant/landlord made on oath duly supported by the statement of his witness namely Rizwanullah R.W.2., therefore, it stands proved that the landlord requires the suit shops in good faith for his personal requirement. So for as the apprehension of the respondents/ tenants that the appellants/landlord will give the suit shops on higher rent to other person after their ejectment is concerned, the provision of section 17(9) of the Act ibid affords sufficient protection to tenant in case landlord does not occupy premises after getting it vacated through eviction order under section 17(2) ibid. The tenant may have recourse to this remedy. Reliance is placed on (1996 SCMR 97 and 382).

7. In the wake of the above, this appeal is allowed, judgment/order dated 23-5-2012 of the learned Controller of Rents, Nowshera Cantt: is set aside and an ejectment order is passed in favour of the appellant/landlord against the respondents/tenants. No order as to costs. MH/55/P Appeal allowed.