BASHIR AHMAD vs MUHAMMAD SHAFI

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a tenant, against the dismissal by the High Court of his first appeal against the order of his eviction passed by a learned Cantonment Rent Controller on the ground of personal bona fide requirement of the landlord.

2. ' The question involved before us is one of fact as to whether the landlord bona fide required the premises in dispute or not. The findings of fact by the learned two Courts below being against the petitioner, ordinarily this Court would not interfere in such like cases. Notwithstanding this position, learned counsel tried to argue that the learned Judge in the High Court misread the evidence and the plea raised. According to him, the learned Judge observed by misreading that the two-room house with the landlord was not enough and suitable for accommodating his family of nearly a dozen persons. In reality, the house containing two rooms was referred in the landlord's application as the one in dispute and not the one in possession of the landlord as is assumed in the impugned judgment. He further supported his plea by referring to the deposition of the landlord wherein he categorically stated that the house in his own possession is of four rooms while the one in dispute is of two rooms. The learned counsel argued that the impugned judgment is based on misreading of evidence and it is liable to be set aside.

3. On face, no doubt, the learned counsel seems to be right that the learned Judge in the High Court did not correctly read the above-referred material; but leave cannot be granted on mere misreading of any document or deposition. The misreading has to be not only of an important document but also with regard to an important aspect of the case and further such misreading, if corrected, would make material difference in so far as the outcome regarding findings of fact, is concerned.

4. ' We invited the learned counsel to satisfy us that if the case is remanded to the High Court for correcting the misreading there would be any substantial and material alteration in the findings of fact or other findings in the impugned judgment. Keeping in view the number of family members of the respondent/landlord and also the fact that while one of his married sons with six children is living with him and the other is going to be married as soon as the suit premises are vacated, it was difficult for the learned counsel to satisfy us that the house in possession of the respondent even if it consists of four rooms, would have to be adjudged as enough for landlord's large family.

5. ' Learned counsel then contended that the question of suitability has to be adjudged in the context of the status of the landlord. According to him, in this case, the landlord being a pensioner, would not require any more accommodation than he has and that four rooms are enough for him even if he has a large family. We do not agree with him. It is the judgment and the need of the landlord about which he is the best judge. Regarding status also, the primary consideration is choice about the need and comforts of the landlord. The Court can only interfere in this field when the claim of the landlord is visibly extraordinary. In this case, it is obvious that the status-wise and need-wise the landlord has not at all made an extravagant claim.

6. Lastly, the learned counsel contended that subsequent to the decision of the case by the trial Court, the petitioner discovered that the landlord has some other accommodation also. This new plea we declined to entertain as it required evidence. The trial before the Rent Controller was long enough for the petitioner to have made appropriate inquiries on the questions with regard to the availability of other accommodation with the landlord. A possibility that the plea now being pressed by the petitioner through his counsel is an afterthought cannot be excluded. Leave to appeal, therefore, is refused.

7. ' On the request of the learned counsel for the petitioner, the respondent/landlord has agreed to grant him four months' time to vacate the premises provided that the petitioner gives an undertaking to hand over the vacant possession to the respondent/landlord on the day next after the expiry of four months or before that time, without execution proceedings or even a notice for vacating the premises. The petitioner on the questioning of his learned counsel, has given a clear undertaking in this behalf, and accordingly the request, subject to this undertaking, for four months time on the concession shown by the learned counsel for the petitioner, is granted.