SAEED AHMAD vs TARIQ NAZIR BUTT And Another

ORDER

1. JAVID IQBAL J.-- This is a petition for leave to appeal. The petitioner is a tenant of shop bearing No.2, Building No.1, Commercial Zone, Gulberg-III, Lahore. Tariq Nazir Butt respondent No.1 filed an ejectment petition against him on the ground of personal use, which was accepted by the Rent Controller, Lahore on 16th Junuary 1983. The petitioner challenged that order in appeal and the Additional District Judge, Lahore accepted the same vide his judgment, dated 13th February, 1984.

2. Consequently, the respondent landlord filed a Constitutional Petition against the judgment of the Additional District Judge in the Lahore High Court, Lahore arid a learned Single Judge by his order, dated 31st May, 1986 set aside the impugned judgment and restored the order of the Rent Controller. Hence the present petition.

3. The background is that the shop in question was rented out to the petitioner by Nazir Ahmad Butt father of respondent No.1 Tariq Nazir Butt. Thereafter, the shop was partitioned in Nos. 1 and 2 and these two were gifted to his two sons. Respondent No.1 as landlord of shop No.2 had filed the ejectment petition against the petitioner inter alia on the ground of personal use.

4. Learned counsel for the petitioner argued that respondent No.1 could not establish that he needed the premises for his personal use as while the proceedings were pending he had gone abroad to study there. It was next argued that he was not an independent person to look after his affairs himself and that throughout his father had been looking after his affairs. In other words it was his father who was pursuing the ejectment petition. Thirdly, it was urged that the High Court in the writ jurisdiction could not interfere with a finding of fact recorded by the appellate Court. Thus, according to the learned counsel for the petitioner the appellate Court had correctly reversed the order of the Rent Controller on facts and it should not have been interfered with. Learned counsel who appeared on behalf of the caveator respondent No.1 stated that if the respondent had gone abroad while the ejectment proceedings were pending it did not mean that his claim of personal use was not bona fide and consequently the learned Single Judge of the High Court was correct in reversing the judgment of the Additional District Judge. Reliance was placed on Fazil Azim and another v. Tariq Mahmood and another P T. D 1982 SC 218 in which it was held that when a landlord was seeking eviction on the ground of personal requirement he cannot be expected to sit idle for periods of time during the pendency of eviction proceedings. If the landlord during such period had employed himself in a gainful occupation such as going, abroad for earnings, such fact cannot negate assertion of bona fides on his part. So far as the question that respondent No.1 was not an independent person is concerned it was urged that interests of they landlord could be looked after by his agent and if the father of respondent No.1 was looking after his interests while he was away it did not imply that his claim for personal use was false.

5. It was next submitted that the interference by the High Court in writ jurisdiction in this case was justified. Reliance was placed on Lal Din Masin v. Mst. Sakina jan and another 1985 SCMR 1972 in which it was held that if an ejectment was granted by the Rent Controller and his order being reversed in appeal but restored in writ jurisdiction the plea that the High Court in exercise of its writ jurisdiction cannot interfere with a finding of fact recorded by the appellate forum was not sustained because the view taken by the appellate Court had not only been contrary to the established principles of law but also to evidence on record. Thus, the High Court was competent and justified to have interfered in its writ jurisdiction with the appellate order.

6. We have heard learned counsel for the parties, but in the light of the arguments raised by the learned counsel for respondent No.1, in our view, no interference is called for in the impugned order of the learned Single Judge of the Lahore High Court, Lahore in the circumstances of the present case. The result is that this petition has no merit and is accordingly dismissed.