SAEEDA BEGUM Versus NAZIR AHMAD

This is a constitutional petition filed by Saeeda Begum, petitioner, for a declaration that the order dated 5‑7‑1984 passed by an Additional District Judge of Lahore dismissing the eviction petition filed by the petitioner, be declared to be illegal and without lawful authority and be set aside and that the order passed by the learned Rent Controller, Lahore, dated 28‑2‑1983 be restored, with a direction that the petitioner may be handed over the immediate vacant possession of the premises in dispute.

2. The brief facts of the case are that Mst. . Saeeda Begum, petitioner, filed an eviction petition against Nazir Ahmad, respondent, claiming his eviction from house bearing No. F‑2728 SR No.3089 outside Masti Gate, Lahore on the grounds; (i) that the tenant had violated the terms of the rent deed by altering the condition of the premises by installing a small Chakki therein for grinding chillies and three Bhattis for dying yarn and sublet an open portion of the premises to another party without her permission; (ii) that the tenant had impaired the condition of the premises and (iii) that the petitioner required the said premises for her personal use, as she had no other place to live in. The said averments were denied by the respondent in his written statement. In reply to preliminary objection No.l taken by the respondent in his written statement, the petitioner in her replication inter alla averred that the respondent had taken the premises for his personal use, whereas he had altered the condition of the same by installing a small Chakki for grinding chillies and five Bhattis for dying yarns and by altering the residential house into godowns. On the pleadings of the parties, the learned Rent Controller framed the following issues;

(1) Whether the present petition is premature in view of preliminary objection No.l?

(2) Whether the present petition is frivolous and vexatious as alleged in preliminary objection No.2?

(3) Whether the respondent has violated the terms of the tenancy as alleged in para 5 of the ejectment petition?

(4) Whether the petitioner requires the premises in dispute in good faith, for her own occupation?

(5) Relief .

The evidence was led by both the parties. After hearing the arguments, the learned Rent Controller decided issues Nos.l and 2 against the respondent, issue No.3 in favour of the petitioner, issued No.4 against the petitioner and accepted the petition and directed the respondent to hand over the vacant possession of the disputed property to the petitioner within a month. Being aggrieved by the said order, the respondent preferred an appeal before the District Judge, Lahore, which was marked to an Additional District Judge, when the appeal came up for hearing the respondent only agitated issues Nos.2 and 3. After hearing the parties the learned Additional District Judge, Lahore, by his order dated 5‑7‑1984, decided the said issue against the petitioner and dismissed her eviction petition. Being aggrieved by the said order, Mst. Saeeda Begum, petitioner, filed a writ petition in the High Court, which is now before me for disposal.

3. I have heard the arguments of the learned counsel for the petitioner and the contesting respondent No.1 and have perused the documents filed with the petition. The rent deed Exh.2 which was executed on 29‑6‑1971 clearly shows that the disputed property was let out. for the personal residence of Nazir Ahmad, respondent. The evidence of Faqir Syed Waqar‑ud‑Din P.W.1 shows that the disputed property was taken on rent by the respondent for his residence, but that he was conducting business therein under the sign board Nazir Company fixed on the premises and that he was using the premises as a godown. The evidence of Abdul Ghani P.W.2 shows that salt trade was being conducted in the disputed premises where two sign boards stood affixed, one bearing the name of Nazir and the other of Munir. The evidence of Syed Abul Hassan Zaidi P.W.3, the Special attorney of the petitioner, shows that the respondent had taken the property for his residence on 1‑7‑1971 as per rent deed Exh.P.2, but that he had converted the same into a godown for salt and that a part of the property had been sublet to Munir & Company. This position is admitted by the respondent's witnesses. In cross‑examination Manzoor‑ul‑Haq PW 1 admitted that two boards, one bearing the name of Nazir & Company and the other of Munir & Company stood displayed on the disputed property. He admitted that the respondent and Munir Ahmad were real brothers. He also admitted that the disputed property had been taken on lease for residential purposes. He further admitted that the respondent lived there; were he also kept a buffalo, and that both the brothers did salt business and their business was joint. He also admitted that in one of the rooms he had seen salt stacks, whereas, in the other the respondent resided with his wife and children. Muhammad Afzal P.W.2 in his cross‑examination stated that the respondent and his brother Munir Ahmad both conducted salt business in the disputed premises. He admitted in cross‑examination that salt was stacked not only in the room, but also in the verandah of the disputed premises. Nazir Ahmad PW 3 respondent in cross examination admitted that the boards "Nazir & Co." and Munir & Co." stood displayed on the disputed premises and that they possessed a salt agency. He, however, denied the fact that they stored salt in the rooms, but admitted that any salt that was left over was stacked in the verandah. From this evidence it is clear that if not the whole premises, at least ‑one room and a verandah are being used by Nazir Ahmad, respondent, for the purposes of salt trade, where he also stacks salt and that his brother Munir Ahmad is associated with him in the said trade. The statement of the learned Additional District Judge that the petitioner had not in her pleadings taken up the plea that the premises in dispute had been converted for the purposes of trade or business, stands belied not only by para 5 of the petition, but also by her reply to preliminary objection No.l in her replication. The findings of the learned Additional District Judge on issue No.3 being based on a total misreading of evidence, his final conclusion on issue No.3 is illegal and deserves to be set aside. It is clear from the pleadings of the parties and the evidence on the record that issue No.3 stands clearly established in favour of the petitioner. In this view of the matter, issue No.2 automatically stands proved against, the respondent.

4. For the foregoing reasons, this petition is accepted and the judgment of the .learned Additional District Judge, Lahore, . dated 5‑7‑1984, is set aside and that of the learned Rent Controller dated 28‑2‑1983 is restored. Nazir Ahmad, respondent, shall hand over vacant possession of the disputed premises to Mst. Saeeda Begum, petitioner, within a month from the date of this judgment. The, petitioner shall be entitled to her costs.

?/S‑241/L Petition accepted.