ABDUR RASHID Versus M/S. KHALID YOUSUF & CO.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the validity of the order, dated 28‑7‑1985 of the Additional District Judge, Gujranwala accepting the appeal of Muhammad Yousaf Butt, respondent No.2 against an order of ejectment passed by the Rent Controller in respect of Shop NO.B.lII‑4S‑52, Khagoor Mandi, Gujranwala.

2. Noor Muhammad, who was predecessor‑in‑interest of petitioners Nos.1 to 9 and petitioner No.10 Haji Abdul Majeed being owner‑landlords brought an ejectment petition against Muhammad Yousaf Butt and M/s. Khalid Yousaf and Company respondents under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on two grounds namely:

(i) that the respondents had failed to pay or tender the rent for four months preceding the ejectment petition; and

(ii) that the shop was required by the petitioners for personal use, in that, Abdul Rashid and Muhammad Shafiq sons of Noor Muhammad and Abdul Jabbar son of petitioner No.10 were jobless and, thus, in need of commercial premises for the business of cloth.

3. The ground relating to default in payment of rent was later on not pressed and the parties contested the petition only with reference to the personal need of the said petitioners. They produced lengthy oral and documentary evidence in support of their respective contentions. The Rent Controller accepted the version of the petitioners and proceeded to decide the petition in their favour. The respondent‑tenants brought an appeal against the order of their ejectment which was accepted by the Additional District Judge, Gujranwala through the order impugned in this writ petition.

4. The learned Additional District Judge mainly relied upon the fact that the petitioners were occupying as owners such other premises as could be suitable to their requirements. He, therefore, did not accept the bona fide nature of their claim regarding the disputed shop. There is no dispute to the fact that the petitioners are also owners of various other commercial and residential properties but that alone would not be sufficient to disentitle them from seeking the vacation of the shop in question for personal use. There are various factors that have to be considered in deciding the point at issue. The petitioners may be owners of other properties but there is nothing to show that the persons who are stated to be in need of the disputed shop are in exclusive possession of any other similar property. Especially, no such evidence is available in relation to the position of Abdul Jabbar son of Abdul Majeed.

5. An important aspect of the matter is that the petitioners' intend to establish the business of cloth while the alleged alternate shops are godowns located in the grain market. Moreover, where more than one premises area available to the landlord for business, it is for him to choose the one best suitable to his conditions and requirements.

6. The learned Additional District Judge looked at the good faith of the petitioners with doubt also for the reason that they previously filed a similar petition on the same ground but withdrew it after an agreement for enhancement of the rent. Previous enhancement of rent as such is not fatal for a subsequent claim for ejectment unless it is established to be the supreme consideration for initiating proceedings against the tenant. In the present case it has been proved that the aforementioned persons are not doing any job.

7. Moreover, the statements of Noor Muhammad and petitioner No.10 with reference to the economic factors which statedly damaged their business are also very much relevant in this behalf and essentially substantiate the genuineness of their claim. In the light of the evidence on record the order of the Rent Controller was comprehensive, self‑contained and well‑reasoned. The impugned order of the Additional District Judge is sketchy and proceeds on presumptions which have no bearing on the material available on record. The order of the learned Appellate Court is not only contrary to the established principles of law but also to evidence on record. It is, therefore, liable to be struck down. The case of the petitioners for their bona fide requirement of the shop in question for personal use has been established beyond any shadow of doubt.

8. As regards the competency of this Court to reverse the finding of the learned Appellate Court arid to restore the order of the learned Rent Controller a reference may be made to Saeed Ahmed v. Tariq Nazir Butt and another (1987 SCMR 220) and Lal Din Masih v. Mst. Sakina Jan and another (1985 SEMR 1972) where it was held that the High Court was competent and justified to have interfered in its writ jurisdiction with the appellate order. Accordingly, the writ petition is accepted. The impugned order of the Additional' District Judge, Gujranwala dated 28‑7‑1985 is declared to be without lawful authority and of no legal effect and the order of the Rent Controller, Gujranwala dated 20‑3‑1985 directing the ejectment of the respondents Nos.1 and 2 from the disputed shop is restored. The respondent are, however, given two months' time for handing over the vacant possession of the shop in question to the petitioners.

AA./A‑101/L Petition accepted.