JUMA SHER Versus SABZ ALI
This is a petition for leave to appeal against the judgment of the Peshawar High Court, which had set aside the Rent Controller's ejectment order against the respondent-tenant and ordered the restitution of possession under section 151 of the Code of Civil Procedure 1908. The landlord had sought eviction under section 17 of the Cantonments Rent Restriction Act 1963 on the ground of personal requirement. The High Court reversed the finding on personal need, holding that the landlord failed to specify the type of business intended and that the Rent Controller improperly refused official records. The Supreme Court granted leave to consider whether the High Court was justified in reversing the Rent Controller's finding. Furthermore, the Supreme Court declined to suspend the High Court's restitution order, holding that a landlord cannot retain possession without a subsisting ejectment order and that restitution preserves the status quo until the appeal is decided on merits, distinguishing prior case-law where no regular appeal was pending.
- Whether the High Court was justified to reverse the finding of the learned Controller of Rents on the question of personal requirement?
- Is a landlord entitled to remain in possession of a rented premises in the absence of a subsisting ejectment order by a competent court of law?
- Whether an appellate court's direction for restitution of possession of a shop to a tenant should be suspended during the pendency of a leave to appeal petition?
- Section 151, Code of Civil Procedure 1908
- Section 17, Cantonments Rent Restriction Act 1963
ORDER
AJMAL MIAN, J .‑‑‑This is a petition for leave to appeal against the judgment dated 30‑11‑1995 of a learned Single Judge of the Peshawar High Court passed in F.A.O. No.8 of 1995, filed by the respondent against the ejectment order of the Controller of Rents, Peshawar Cantonment, dated 22‑11‑1994 on the ground of petitioner's personal requirement, allowing the same as under:‑----
"Since the respondent/landlord had failed to make out a case for bona fide personal need I accept the appeal and set aside the eviction order passed on 22‑11‑1994. Invoking the inherent powers under section 151, C.P.C. I also order restitution of possession of the suit shop. However, parties are left to bear their own costs. "
The petitioner/landlord has, therefore, filed the present petition for leave to appeal.
2. The brief facts are that the respondent was the tenant of a shop bearing No.25, situated in Khyber Medical Centre, Dabgari Gardens, Peshawar, hereinafter referred to as the shop, at Rs.1,000 per month. The petitioner filed Case No.38 of 1994 under section 17 of the Cantonments Rent Restriction Act, 1963, hereinafter referred to as the Act, before the Controller of Rents, Peshawar Cantonment, on the grounds of default and personal requirement. The petitioner did not press the ground of default. The learned Controller of Rents through his aforesaid order dated 22‑11‑1994 allowed the above case on the ground of personal requirement and ordered the ejectment of the respondent. Thereupon, the respondent filed aforementioned F.A.O. on 16‑2‑1994. While the above F.A.O. was under processing inasmuch as certain objections were raised and the respondent was asked to comply with the same, the respondent was ejected from the shop on 17‑4‑1995. The learned Judge in Chambers, after hearing the learned counsel for the parties, was of the view that the petitioner failed to make out ground of personal requirement inter alia for the reason that he had not stated what type of business he wanted to start. She was also of the view that the learned Controller of Rents was not justified to refuse the respondent's application for summoning of the official record as the respondent wanted to show that the petitioner had some other properties and settled business in Peshawar. Consequently, the above F.A.O. was allowed in the aforesaid terms.
3. In support of the above petition Mr. Aitzaz Ahsan, learned Advocate Supreme Court for the petitioner, has vehemently contended that the ground the petitioner failed to mention the business which he wanted to start in the shop is not sustainable in law in view of various pronouncements inter alia made by this Court involving above question. His further submission was that in spite of repeated opportunities respondent had failed to produce the evidence and, therefore, the learned Controller of Rents was justified in declining the respondent's above request for summoning of the record.
On the other hand, Mian Younis Shah, learned counsel appearing for the respondent/caveator, has contended that the learned Judge in Chambers has recorded a finding of fact against the petitioner, which does not warrant interference by this Court keeping in view the statement made by the petitioner learned Controller of Rents, which does not inspire confidence.
4. We are inclined to grant leave to consider the question, as to whether the learned Judge in Chambers was justified to reverse the finding of the learned Controller of Rents on the question of personal requirement.
5. However, the question arises, as to whether we should suspend the order of the learned Judge in Chambers directing for the restoration of the possession of the shop to the respondent. According to Mr. Aitzaz Ahsan, learned Advocate Supreme Court for the petitioner, since there was no stay order in the field, the respondent was legally ejected from the shop wherein the petitioner has been carrying on business. His submission was that factually his appeal before the High Court had become infructuous. In support of his above submission he has referred to a short leave refusal order in the case of Molik Afzal Ali v. Malik Ashraf Ali (1983 SCMR 1271), wherein the following observations were made:‑‑
"2. It is conceded that no stay having been granted, the petitioner was ejected from the shop on 17‑1‑1982. That being so, the petition has become infructuous. Learned counsel, however, submits that the respondent has in violation of section 13(4) of the Rent Restriction Ordinance sold the shop to a third party on 29‑4‑1982 which, according to learned counsel, showed that his requirement for personal use was not bona fide. This is a matter for which the petitioner, if so advised, may take his remedy under the law.
3. No other point having been argued, the petition is dismissed."
On the other hand, Mian Younis Shah, learned counsel for the caveator, has vehemently contended that since the respondent was ejected while the appeal was pending and as the ejectment order has been set aside by the learned Judge in Chambers, the respondent is entitled . to the restitution of possession of the shop.
6. It is an admitted position that there is no ejectment order in the field in respect of the shop in favour of the petitioner. A landlord is not entitled to have possession of the tenement involved in the absence of any ejectment order in his favour by a competent Court of law. If we were to allow the petitioner to continue to remain in possession of the shop, in fact it will amount to restoration of the ejectment order in favour of the petitioner without the disposal of the appeal arising out of the above petition. Additionally, if after the expiry of several years the appeal arising from the above petition is dismissed, it will not be possible for the Court to compensate the respondent. On the other hand, if the possession is restored to the respondent and the appellant succeeds in appeal, he will be able to get the possession. The above leave refusal order in the case of Molik Afzal Ali (supra) has no application to the instant case inasmuch as the petitioner in the said case was not ejected during the pendency of a regular appeal.
We are, therefore, not inclined to suspend the direction issued by the High Court to the petitioner to restore possession of the shop to the respondent. However, we allow the petitioner 30 days' time from today to restore possession to the respondent of the shop, failing which, the High Court will get the above order executed against the petitioner.
7. In case, the petitioner restores the possession within the above period of 30 days to the respondent, the appeal arising out of the above petition may be fixed for hearing at an early date.
A.A./J‑150/S ?????????????????????????????????????????????????????????????????????????? Leave granted.