MUHAMMAD NASEEM vs AZMAT KHAN

ORDER

1. NASIM HASAN SHAH, J.-The respondent owned a house in village 'Dower' situated in the District of Islamabad and used to reside therein. The said house was acquired by the C. D. A. In 1964 but he continued to reside therein until, according to him, it fell down on account of rains and he shifted to the house of his mother. He then filed an application for eviction of the petitioner from the house in dispute, which is situated in the urban area of Rawalpindi, inter alia, on the ground of personal need.

2. The petitioner herein controverted the allegation that the house of the respondent in village 'Dower' had fallen down and asserted that he was continuing to reside in his own house in the said village 'Dower' and that the ejectment of the petitioner was being sought merely for obtaining the enhanced rent for the house.

3. The Rent Controller accept the plea of the landlord/respondent and ordered the eviction of the petitioner. On appeal, however, the learned Additional District Judge took the view that the respondent had not been evicted by the C. D. A. For over 16 years and there was no urgency in the matter. He also maintained that the respondent was putting up in his mother's house and it was not shown that the said house was insufficient for his needs.

4. Aggrieved by the above order, the respondent moved the Lahore High. Court in its writ jurisdiction and the learned Single Judge of the said High Court (Rawalpindi Bench) accepted the petition on two-fold grounds, firstly; he held that the house owned by the respondent in village 'Dower' was now included in Islamabad and was not in the urban area of Rawalpindi. Under section 13 (3)(1)(a) of the Rent Restriction Ordinance, it is only when a landlord is found to be in possession of building suitable for his needs in the same urban area in which the demised property is situate, that the eviction of the tenant can be refused, and secondly; even if the respondent was residing in the house of his mother he could still be entitled to obtain the ejectment of the petitioner because, as held by this Court in Abdul Aziz and another v. Muhammad Ibrahim (PLD 1977SC444), section 13 (3)

(a) (i) cannot be extended to cover a building occupied by the landlord but not owned by him.

5. Since the petitioner was not owner of the house in which he was presently residing being an occupant in his mother's house this circumstance was not fatal to his case. Consequently, the petition was allowed and the petitioner ordered to hand over possession of the house to the respondent within two months. This order was passed on 1 5-6-1981.

6. We have heard Mr. Muhammad Nawaz Abbasi, Advocate for the peti--tioner but he was unable to show that the grounds on which the learned Judge in the High Court bad proceeded to accept the writ petition were erroneous in law or otherwise suffered from any infirmity. No ground has, therefore, been made out for interfering with the order of the High Court.

7. This petition must, therefore, fail and is dismissed hereby.

8. The petitioner, however, is given two months time to vacate the house on the conditions-

(a) that he continues to pay the monthly rent, and

(b) that he voluntarily surrenders the possession of the house on the expiry of the aforesaid period of two months.

9. The learned counsel for the petitioner has accepted these conditions and this order is based in view of the above undertaking.