IJAZ HUSSAIN Versus HUSSAN ARA

ORDER

1. MUHAMMAD AFZAL ZULLAH, J .‑‑Leave to appeal has been sought by the tenants' side in a Rent Restriction Law case, against the order of their eviction and the dismissal of their writ petition in that behalf, by the Peshawar High Court,

2. The respondent No.1 a widow and her minor children succeeded in obtaining the eviction order on the ground of their personal requirement. Sethi Abdul Latif, their predecessor‑in‑interest and the original landlord, at the commencement of the proceedings (197911978), died in the meanwhile.

3. The disputed 'building' is actually a part of a bigger building, this part is being used by the petitioners as a shop/godown, in the business of foodgrains; while the remaining part is with landlords for residential purposes. The latter have got it vacated for personal use, as Baithak with the remaining residential unit, which it seems is mainly on the upper floors.

4. Learned counsel has contended that the disputed portion being on rent with the petitioners for non‑residential purpose could not be got vacated for residential purpose. This particular plea was not raised in the High Court. The case‑lab on the question of conversion of residential building into non‑residential, ordinarily would not be attracted to the conversion vice‑versa. Moreover, in a case like the present one, it is a question of fact whether the rented unit was constructed and/or let out as non‑residential. The answer to the question like the one raised would depend upon the circumstances of each case. The same not having been raised earlier, no interference is called for, on this basis.

5. The learned counsel next raised the plea of res judicata; but could not press it, after noticing its treatment by the High Court on the basis of a Supreme Court's judgment.

6. The learned counsel also urged the other points on the findings of fact, relatable to the personal requirement of the respondents. After going through the relevant part of the evidence, on the request of the learned counsel, we are of the view that these findings do not suffer from any infirmity justifying interference by this Court.

7. This petition accordingly is dismissed

8. M.Y.H./I‑45/S Petition dismissed.