2014 PLP 1595 (CLC)

ROOH-UL-AMIN KHAN, J.

This single judgment shall dispose of instant writ petition as well as connected Writ Petition bearing No.3562 of 2011, titled, "Malik Samiullah v. Shakeel", as both are arising out of the same judgment of the learned Rent Controller, Peshawar dated 14-1-2011, and that of the learned District Judge-III, Peshawar dated 17-11-2011, whereby the ejectment petition of the petitioner was concurrently dismissed by both the Courts below.

2. Brief but relevant facts of the case are that, petitioner Malik Samiullah filed an ejectment petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against the respondents on two grounds i.e. wilful default in payment of monthly rent and bona fide personal need of the suit premises, for his residential purpose.

3. Initially the respondents were placed ex parte and after recording evidence of the petitioner, an ex parte decree as prayed for was passed in favour of the petitioner vide order dated 24-5-2010. During execution proceedings, the respondents filed an application for setting-aside the ex parte decree, which was ultimately accepted vide order dated 4-9-2010. The respondents, thereafter, contested the ejectment petition by filing their reply duly supported by an affidavit. Pro and contra evidence of the parties was recorded and after hearing the parties, the learned Rent Controller dismissed the ejectment petition vide order and judgment dated 14-1-2011. The petitioner being aggrieved of the aforesaid order and judgment, filed Rent Appeal No.5/R.A, before the learned Additional District Judge, Peshawar, but the same was dismissed vide order dated 17-11-2011, hence, these petitions.

4. Having heard the learned counsel for the parties, perusal of the record reveals that in support of claim of bona fide personal need, the petitioner himself appeared as P.W.1, who in support of his plea of reconstruction, produced receipt of payment deposited with Town-I, for approval of the site map and receipt of electricity connection. He, in his cross-examination, disclosed that after ejectment of the respondents, he constrained to demolish the suit property and has designed to reconstruct the same for his residential purpose. He admitted the fact that the site plan for construction of residential house is under process but yet not approved by the competent authority. He also admitted the fact that his earlier ejectment petition on the ground of bona fide personal need has already been dismissed by the Rent Controller as well as Appellate Court, in earlier round of litigation. Malik Faisal Abdullah and Malik Saadullah Jan, appeared as P.W.2 and P.W.3, respectively. They also admitted that prior to present ejectment petition, petitioner and his brothers had also filed an ejectment petition against the respondents, which has been dismissed by the Rent Controller as well as Appellate Court.

5. In contrary, respondent appeared as R.W.1, who denied the allegation of personal need of the petitioner and default in payment of monthly rent.

6. We have searched the entire file from cover to cover and have scanned the record carefully, but could not find an iota of evidence, demonstrating the dire personal need of the suit premises by the petitioner or sanction of the site plan for demolition and reconstruction of the property in dispute. In case of ejectment of the tenant, on the ground of reconstruction of the building and bona fide personal need, it is obligatory on the petitioner to obtain necessary sanction for reconstruction or erection, from the relevant authorities, at the time of filing the eviction petition or at least during its pendency, but in the instant case, the petitioner failed to bring any supporting document proving his bona fide personal need. Section 13(3)(a) of the West Pakistan Rent Restriction Ordinance, 1969, provides that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in the following circumstances:

1. In the case of residential building if; (i) He requires it in good faith for his own occupation or for the occupation of any of his children. (ii) He is not occupying another residential building suitable for his needs at the time in the same urban area in which such building is situated; and (iii) He has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area. From the above provisions, it is manifest that a landlord can file application before the Rent Controller for ejectment of tenant, if he requires the property in good faith for his own use or for the use of his children, who are not occupying any such property suitable for his/their need, in the same urban area. The above referred three conditions are sine qua non and must exist before the landlord becomes entitled to the ejectment of the tenant.

7. In the instant case, the petitioner has failed to bring on record that he is not occupying another residential house and that the same is insufficient for his use, rather, P.Ws. during the course of cross-examination, have categorically admitted that the petitioner is residing in his ancestral house, situated in Ramdas Bazar, situated at a walking distance from the suit premises. In order to seek ejectment of the tenant, it is incumbent upon the landlord, to establish his bona fide personal need. For this purpose the landlord, at least has to state in his testimony on oath before the Rent Controller, the basic facts wherefrom the Courts would be able to ascertain and assess in an objective manners that the demand for the ejectment of the tenant from the suit property is based on honesty and with good intention. No doubt, it is settled by the superior Courts that the landlord has a superior right of possession and use of his property as against the tenant, but it has equally been settled that the tenant may not be deprived of his legal business and may not be shunted out from the suit premises, on mere assertion of the petitioner.

8. The scheme of section 13(3) of the Ordinance ibid, provides that the Rent Controller shall not order the eviction of the tenant on the expression of the desire even if in good faith by the landlord, unless the Rent Controller himself is satisfied that the claim of the landlord is based on honesty and bona fide. In the instant case, it is evident from the record that the suit premises is jointly owned by three brothers, two sisters and one mother, being descendants of one Abdullah Jan. Out of them, only Samiullah, the petitioner, has filed instant petition for ejectment of the respondents on the ground of reconstruction of Hujra therein. He failed to place on record any document qua partition of the property between the legal heirs of said Abdullah or to prove that in consequence of any domestic partition, the property in dispute has been devolved upon him or that he has obtained permission from the co-sharers for demolition of the suit premises and reconstruction of Hujra. The Rent Restriction Ordinance is not meant to oust the tenant from rented property, merely on the whims and wishes of the landlord, rather, it provides protection to the tenant, to the effect that until and unless the landlord proves the recognized grounds for ejectment, he shall not be entitled to seek ejectment of his tenant.

9. We have also observed that prior to the instant petition, the petitioner and other co-owners had filed an ejectment petition against the present respondents on the ground of personal bona fide need for their personal business, but the same was dismissed up to this Court. The petitioner on the same ground has filed the instant petition but the facts qua rejection of previous petition and then dismissal of appeal and writ petition by the District Judge and this Court, respectively, are not disclosed in the instant petition. Where a landlord tried to conceal the facts from the Rent Controller qua rejection of earlier rent petition in respect of the same property on the same ground, in that case, not only the cause of action in favour of landlord would be diminished, rather his "good faith" also seriously impaired. Such a conduct of the petitioner would be a determining factor for his good faith in demanding the eviction of tenant.

10. From the above discussion, it is manifest that both the Courts below have properly appreciated the evidence and the law on the subject and has kept in mind the relevant facts and circumstances of the case while dismissing the ejectment petition of the petitioner. The learned counsel for the petitioner failed to point out any misreading or non-reading of evidence or any jurisdictional defect or illegality in the impugned judgments, calling for any interference of this Court. Thus, both these petitions are dismissed. JJK/390/P Petition dismissed.