MUHAMMAD ASHRAF vs MUHAMMAD ADIL ZAIDI and 4 others

' This second appeal in a rent matter has been filed by the tenant, who has failed in both the Courts. It relates to ejectment from Shop No, 11 in Raza Market, Block No,4, Sargodha.

2. The respondents brought the ejectment petition on the ground of default and personal need. It was contested by the appellant on which a number of issues were framed and it was tried. The issue of personal need was found in favour of the respondents while the issue of default was found against them. Resultantly, ejectment petition was allowed vide order dated 12-10-1995. In appeal, it was affirmed by the learned first appellate Court vide order dated 23-4-1998.

3. The learned counsel for the appellant has contended that the bona fide personal need of the respondents had not been established because Shop No, 12 was vacant in the said market while the respondents owned another shop in Rail Bazar and availability of these shops was suppressed by the respondents from the ejectment petition. The plea of mala fide of the landlords respondents was also pressed on the ground that the plea of default was wrongly taken. It was further contended that the property initially belonged to Syed Hassan Ahmed Raza Zaidi, the father of the respondents. All his heirs were not party to the ejectment petition and therefore it could not have been granted. He lastly contended that an amount of Rs,20,000 had been paid as advance rent to the landlords which converted the tenancy into one for a fixed period and, therefore, the respondents could not seek ejectment of the appellant, unless the said amount had been adjusted.

4. On the other hand, the learned counsel for the respondents landlords has supported the judgments of learned two Courts. According to him, the bona fide personal need having been established, as concurrently found of the learned two Courts, no interference was called for in the second appeal.

5. I have considered the submissions made by the learned counsel for the parties. On evidence produced in the case, it has been found that respondents Nos. 1 to 3 were jobless and were not in occupation of any other shop. It has been held and rightly so, that the landlord is sole judge of the choice of a particular premises. Reference may be made to Tahir Umar v. M/s Bata Shoes etc. 1991 M LD 1236 and Muhammad Sharif etc. v. Abdullah etc. (1991 CLC 1381). It has also been found that there are stairs in the vacant Shop No, 12 leaving only a small space which is being used for parking of Scooters and Motorcycles. This shop was offered to the appellant but he declined. This offer was reiterated by the landlords-respondents before this Court which was declined. It is, thus, clear that if the tenant does not consider this available vacant shop as suitable to his needs than the respondents-landlords are perfectly justified in saying that it was not suitable to their need. As far as the shop in Rail Bazar is concerned, it is in occupation of Mehmood Shah another brother of the respondents.

6. The contention of the learned counsel that Shop No, 12 in Raza Market and the shop in Rail Bazar were not disclosed in the ejectment petition, is not tenable. The landlords were under no obligation to disclose it in the ejectment petition. I may add that proceedings under West Pakistan Urban Rent Restriction Ordinance, contemplate only an inquiry and cannot be substituted with the trial of a suit requiring insistence of proof according to the pleadings.

7. The contention of the learned counsel that the other heirs of Syed Hassan Ahmad Raza Zaidi, the father of the respondents not having joined the ejectment petition, it was incompetent, has no merit. One of the landlords can seek ejectment of a tenant. In this view, I am fortified by a judgment of the Supreme Court in Khalique Ahmad v. Abdul Ghani and another (PLD 1973 SC 214).

8. The contention of the learned counsel for the appellant that he had paid Rs, 20,000 to the landlord as advance rent and, therefore, he could not be ejected, has also no force. The arguments is based on 1st proviso to sub-clause (c) of clause (ii) of subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 which provides a safeguard to a tenant against ejectment in cases where the tenancy is for a fixed period.

9. There is no satisfactory evidence that the appellant had paid this amount to the respondent landlord as an advance rent. In reply to the ejectment petition, it was claimed by the appellant that the amount of Rs,20,000 was paid to the respondents landlords as security. This did not covert the tenancy into one for a fixed period. It is also admitted by the appellant in his statement as RW-1 that there was no separate receipt for Rs, 20,000 and also that there has not any writing that it will be deducted from the rent. Therefore, the immunity from ejectment claimed by the appellant on the basis of aforesaid provision was not available. The appellant will be at liberty to establish his claim regarding Rs,20,000 in appropriate proceedings.

10. In view of the above, this appeal has no merit and is accordingly dismissed, leaving the parties to bear their own costs. The appellant is, however, allowed a period of one month from today to vacate the shop.