IZHARUL HAQ Versus QASIM ALI

ALI HUSSAIN QAZILBASH, J.‑‑ This is an appeal by leave from the order of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, whereby the Constitutional Petition of Qasim Ali respondent was accepted, the order of the Resst Controller, Pind Dadan Khan, dated 30‑10‑1979 ordering the ejectment of the appellant from the suit shop was restored.

2 Qasim Ali respondent, had sought the ejectment of the appellant from Shop No.7/357 situate in Bazar Kalan, Town Committee Pind Dadan Khan, on the ground of default in the payment of rent, impairing the utility of the shop, reconstruction and personal requirement for his son. The petition was resisted and the pleadings resulted in the framing of the issues of which issue No.2 is relevant for the purposes of the present appeal and is to the effect:

"2. Whether the petitioner requires the shop in dispute bona fide for personal use?"

3. After recording the necessary evidence the Rent Controller held that the respondent required the suit shop in good faith for his son and thus passed an order of ejectment of the appellant vide order dated 30‑10‑1979. The learned Additional District Judge, Jhelum, who was approached in appeal, did not agree with the findings of the Rent Controller on the issue of bona fide requirement of the shop by the respondent for the use of his son and non‑‑suited the respondent vide judgment dated 15‑4‑1981. Respondent then took up the matter to the High Court in a Writ Petition where he secured a favourable order.

4. Leave having been granted against the impugned order of the High Court, the learned counsel for the parties heard and the record perused.

5. The learned counsel for the appellant contended that on previous occasions too the respondent had secured the ejectment of the appellant on almost the same pleas but on the payment of enhanced rent, allowed the appellant to continue with the tenancy. In the instant case, he submitted that the learned Additional District Judge, after considering the evidence of the parties, came to the conclusion that the plea of the respondent in respect of personal use was not based on bona fides. Therefore, the learned Single Judge, while hearing the Writ Petition, has travelled beyond his jurisdiction in upsetting the findings of the learned Additional District Judge.

6. We have considered the arguments of the learned counsel for the appellant in the light of the evidence on the record. True that, on previous occasions, the respondent did not execute the ejectment orders against the appellant and allowed him to continue with his tenancy but then he had required the shop for his own personal use. Presently the case of the respondent is that the suit shop is required by the respondent for the use of his son. There is sufficient evidence on the record in support of this appeal but this seems to have been ignored by the learned Appellate Court. Further the mere fact that the son of the respondent did not appear before the Rent Controller in support of the plea of personal requirement would hardly affect the case. Thus we are of the view that the High Court was justified in restoring the order of ejectment of the appellant. In case, however, the respondent does not occupy the suit shop within the period as contemplated under section 13(4) of the West Pakistan Rent Restriction Ordinance, the respondent can apply to the Rent Controller concerned for the restoration of the possession of the suit shop.

7. The appeal thus fails and is dismissed with no orders as to costs.

M.Y.H./I‑32/S ???????????????????????????????????????????????????????????????????????? Appeal dismissed.