ADEEBA MUSHARRAF vs MUHAMMAD ISHAQ and another

' ABDUL QADEER CHAUDHRY, J---The petitioner seeks leave to appeal against the judgment of the High Court dated 3-7-1993.

2. The facts in brief are that the respondents purchased the shop in dispute through the separate sale deeds dated 25-8-1991 and 9-9-1991. They served a notice on 22-10-1991 on the petitioner intimating purchase of the property. On 7-11-1991 against another notice was sent to the petitioner demanding eviction of the premises on the ground of personal requirement. The ejectment application was filed on 25-11-1991. The suit was contested. The learned Additional Rent Controller dismissed the ejectment application. The respondents challenged the order of the Additional Rent Controller by way of appeal before the High Court. The learned High Court accepted the appeal, set aside the order of the Additional Rent Controller and passed the order of eviction.

3. The learned counsel for the petitioner has submitted that in the first notice dated 22-10-1991 the respondents had not mentioned that they wanted the shop for their personal requirement. He further submitted that after the notice dated 22-10-1991 the respondents contacted the petitioner and demanded an amount of Rs,400,000 as "Paggri" of the shop, and on the refusal of the petitioner they instituted the present proceedings. The learned High Court has elaborately dealt with each aspect of the case and rightly rejected this contention of the petitioner. The first notice was only an intimation to the petitioner about the purchase of the shop in question. After about two weeks another notice was sent by the respondents for possession of shop. Mala fide cannot be imputed simply because in the first notice the respondents had not mentioned their requirement.

All the facts brought on record have to be considered and on proper appraisal of evidence a finding is to be recorded. The learned counsel for the petitioner has stated that there is a misreading of evidence, as is not the case of the respondents that the stair going to the upper storey is so small that it cannot be used for running the business. The petitioner's own witnesses have admitted this fact, therefore, the High Court has rightly given a verdict against the petitioner.

The learned counsel next contended that the respondents are already doing business in Kohati Bazar, therefore, they cannot seek eviction of the petitioner from the premises in question. He has referred to section 17 (4) (b) (ii) of the Cantonments Rent Restriction Act (XI of 1963) and submitted that a landlord has to show that he is not occupying any other building in the vicinity. He has submitted that as the respondents are doing business in Kohati Bazar, therefore, they cannot seek eviction of the petitioner under the law. He submitted that the language of Punjab Urban Rent Restcition Ordinance and Cantonments Rent Restriction Act, on this count, is distinguishable; as in the case of Urban Rent Restriction Ordinance a landlord has to show that he is not occupying in the same urban area in which such building is situated, but under the Cantonments Rent Restriction Act he has to show that he is not occupying in the Cantonment area or any other local area in the vicinity thereof in which such building is situate. But, this contention has no force, as according to the evidence of the respondents they are not doing business in Kohati Bazar; and they have only installed machines in that premises. Learned counsel has referred to M.A.H. Siddiqui v. Sh. Fazlur Rehman and others 1991 SCMR 2391, but this case does not help the petitioner. In this case there was conflicting evidence of parties on the question of bona fide personal requirement of landlord, therefore, the case was remanded to the Rent Controller. In the present case the respondents have been able to prove their bona fide. The learned counsel stated that during the pendency of the respondents' appeal before the High Court they had occupied the upper portion of the shop in question in which they are doing business. The learned counsel for the caveator has repudiated this contention and stated that they have only stored the goods in the upper portion. We need not dilate upon this factual controversy, as the petitioner had not raised it before the High Court. As regards the contention of the petitioner about the demand of "Paggri", the respondents have not admitted this fact. R.W.1 made a bald statement that the landlord wanted increase in rent or "Paggri". R.W.2 also not stated definitely that any "Paggri" was demanded by the respondents. He stated that there is a practice of "Paggri" in the locality. No positive evidence has been produced by the petitioner that the respondents had demanded "Paggri" from him. The next contention of the learned counsel that the respondents can do their business in the upper storey of the shop in dispute has equally no force, as it is the choice of the landlord to do business in the building of his own choice. Simply because some other businessmen are doing garments business in the upper storey is not a clog on the right of a landlord.

4. This petition has no force. The same is dismissed and the .

5. The learned counsel for the petitioner lastly submitted that some time may be allowed for handing over the possession of the shop in dispute, as she is doing business in the premises for a sufficient long time. The learned counsel for the respondents has agreed to give four months time, but in view of the fact that the shop is situated in a commercial area, we allow 6 months time to the petitioner for handing over the vacant possession of the shop to the respondents without recourse to execution proceedings and on payment of rent.