Sheikh MUHAMMAD YOUSAF vs DISTRICT JUDGE, RALWALPINDI And 2 Other

ORDER

1. JAVID IQBAL, J.-- This petition for leave to appeal is directed against the judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, dated 19th November, 1986.

2. The background is that Muhammad Fazil respondent-landlord applied to the Rent Controller, Rawalpindi for the eviction of Sh. Muhammad Yousaf petitioner-tenant on the grounds of default in payment of rent and bona fide personal requirement of the disputed shop for his own use as well as that of his son. However, before the Rent Controller the plea of default of rent was not pressed but the ground of personal requirement was emphasised. The Rent Controller vide his order, dated 27th November, 1982 decided the issue of bona fide personal requirement in favour of the respondent-landlord and ordered the ejectment of the petitioner-tenant giving him four months time to vacate the shop. The petitioner-tenant appealed which was accepted by the District Judge, Rawalpindi on 12th June, 1983. Aggrieved of the same the respondent-landlord filed Writ Petition No. 303 of 1983 In the Lahore High Court, Rawalpindi Bench which was accepted by a learned Single Judge on 31st October, 1984, the appellate order was set aside and the case was remanded to the District Judge to re-decide the appeal. In compliance with that order the District Judge reheard the appeal of the petitioner-tenant and dismissed it on 15th December, 1984 directing the petitioner- tenant to vacate the premises by 31st January, 1985 and to deliver possession of the said shop to the respondent-landlord. Thereupon, the petitioner-tenant preferred Writ Petition No. 47 of 1985 which was again allowed by the learned Single Judge of the Lahore High Court, Rawalpindi Bench on 22nd June, 1986 and the case was again remitted to the District Judge for a fresh decision of the same appeal on merits. The District Judge again reheard the appeal of the petitioner-tenant and dismissed it on 20th July, 1986. Again the petitioner-tenant challenged the said order in Writ Petition No. 618 of 1986 which was dismissed by learned Single Judge of the Lahore High Court, Rawalpindi Bench on 19th November, 1986. Hence the present petition.

3. Learned counsel for the petitioner-tenant firstly argued that respondent-landlord did not provide sufficient proof in support of the plea of bona fide personal need. According to the learned counsel mere statements to that effect of the respondent-landlord and his son were not sufficient to prove the same. It was submitted that he had received Rs.11,000 as Pugree at the time of letting the said shop to the petitioner-tenant and, therefore, was debarred from invoking the provisions of Ordinance VI of 1959 to seek his ejectment. It was also submitted that the respondent-landlord had been working as a cobbler and that at present he alongwith his son wanted to commence the business of goldsmith which should have not been considered as a valid ground for personal need, for a person who had throughout his life carried on the work of a cobbler could not run the business of a goldsmith. Consequently according to the learned counsel the requirement of the said shop for personal use was not bona fide. It was next submitted that the respondent-landlord was carrying on the business of a cobbler in the said shop and he had himself vacated it before letting it out to the petitioner-tenant without providing any sufficient cause for the vacation of the said shop. He was, therefore, barred from seeking ejectment of the petitioner-tenant under the provisions of section 13(3)(a)(ii)(c) of Ordinance VI of 1959.

4. We have carefully considered these arguments of the learned counsel for the petitioner-tenant.

5. The Courts below had held that the respondent-landlord was successful in establishing a bona fide personal need of the said shop and, therefore, while exercising Constitutional jurisdiction the learned Single Judge of the Lahore High Court, Rawalpindi Bench was justified in observing that since that issue had been correctly and properly resolved, it being a question of fact was not review able in the exercise of Constitutional jurisdiction. According to the lease agreement the shop had been let out to the tenant-petitioner for a fixed period of ten years with a right of re-entry reserved by the respondent-landlord, but it is not mentioned in the lease deed that the respondent-landlord had received Rs.11,000 as Pugree from the petitioner-tenant, although it is so stated by him in his statement before the Rent Controller (page 134 of the Paper Book). However, that being mutual arrangement between the parties, would not debar the respondent-landlord from instituting eviction proceedings on the ground of bona fide personal need. In respect of the ground of the petitioner-tenant to the effect that the respondent-landlord had himself vacated the said shop where he was carrying on the business of a cobbler before letting it out to the petitioner- tenant without any sufficient cause and thus violating the provisions of section 13(3)(a) (ii) (c) of Ordinance V I of 1959, the learned Single Judge has observed in his earlier judgment, dated 31st October, 1984 in Writ Petition No. 303 of 1983 when he had previously remanded the case to the District Judge for rehearing the appeal that had the respondent-landlord been asked as to what was the cause for his vacating the same premises and letting it out to the petitioner-tenant he would have provided some explanation but this matter was not put to him. Learned Single Judge, therefore, was correct to arrive at the conclusion that the respondent-landlord may have been a cobbler previously doing his business in the said shop before he let it out to the petitioner-tenant but his prospects could change or his financial position could have improved with the assistance of his son and, therefore, he had a genuine need for the said shop for himself as well as his son to carry out the new business. All the questions which the learned counsel have raised before us were the questions of fact which had also been raised before the learned Single Judge who correctly declined to entertain them as these could not be examined in the exercise of Constitutional jurisdiction. Consequently in our view the impugned judgment is unassailable and does not call for any interference. The petition is accordingly dismissed.