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Civil Petition for Special Leave to Appeal No. 205 of 1974, decided or, 15th October 1974.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated the 29th January 1974, in S. A. O. No. 530 of 1965).

------S. 13(3)(a)(ii)‑Requirement for bona fide use of son‑Fact of landlady's son having a shop in his possession and vacating it after enforcement of Ordinance (VI of 1959)‑Not sufficient to spell out lack of bona fides in absence of evidence of vacated shop having belonged to landlady.

---‑ S. 13(3)(a)(ii)‑‑Requirement for bona fide use of son‑Fact of son intended to be put in possession of shop having failed to carry on any business successfully and changed several shops previously-- Does not prove want of bona fides.

The fact that the son for whom the shop was required bad failed to carry on any business successfully and changed several shops previously does not prove want of bona fides. There might be circumstances beyond his control which may be responsible for his earlier failures;

‑‑ Art. 185(3)‑Point not taken in petition for special leave to appeal‑Cannot be allowed to be raised in arguments.

Mushtaq Raj, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate ‑on‑Record for Petitioner.

Gulzar Ahmad, Advocate Supreme Court instructed by Abid Nawaz Abid, Advocate ‑on‑Record for Respondent.

Date of hearing : 15th October 1974.

‑---The petitioner is a tenant of a shop situated in Mohallah Krishan Nagar, Gujranwala, belonging to the respondent herein. The latter applied to the Rent Controller on 31st July, 1963, for the ejectment of the respondent on the ground that she required the shop for the business of her son.

This petition was resisted on the ground that the need was not a bona fide one and the ejectment proceedings were started only to harass the respondent since the appellant merely wanted to enhance the rent.

The Rent Controller decided the case against the landlady on the ground that her son, Muhammad Salim, had vacated another shop in his possession after the enforcement of the West Pakistan Urban Rent Restriction Ordi nance, 1959. Hence his requirement was not bona fide. This order was also maintained in appeal by the learned District Judge, Gujranwala. But in second appeal a learned Single Judge of the High Court has interfered with the concurrent findings of the Courts below as to the bona fides of the requirement of the landlady on the ground that the findings were against the weight of evidence and in disregard of the provisions of subsection (4) of section 13 of the above mentioned Ordinance.

The tenant petitioner now seeks special leave to appeal. The first con tention advanced on his behalf is that the High Court has acted illegally in interfering with the concurrent findings of fact of Courts below which were based on a proper consideration of the evidence on the record. This, however, is incorrect. The Courts below the High Court have clearly been influenced by irrelevant considerations.

The fact that the son for whom the landlady required the shop had vacated another shop which was in his possession after the coming into force of the Ordinance is not sufficient to spell out lack of bona fides in the absence of any evidence that the shop he had vacated also belonged to his mother.

Similarly, the fact that the said son for whom the shop was required had failed to carry on any business successfully and changed several shops previously does not prove want of bona fides. There might be circumstances beyond his control which may be responsible for his earlier failures.

The evidence in this case did show that the said son, Muhammad Salim, was doing some kind of business even before. Whether he did the same successfully or unsuccessfully is immaterial. The fact remains that his mother did require the shop premises to set her son up in business which she was entitled to do. There is no males fides in this as the High Court has rightly pointed out. The tenant would, in any event, be entitled to 19751 restoration of possession in case the landlady does not use shop for the purposes for which it is got vacated.

The next contention advanced is on the basis of sub‑clause (ii) (b) of sub‑section (3) of section 13 of the above‑mentioned Ordinance. It is con tended that since the said Muhammad Salim was actually in possession of a shop at the time of the presentation of petition for ejectment, the land‑lady was not entitled to have the shop vacated by the petitioner. There is no evidence to that effect. According to the petition for special leave to appeal itself, the father of the said Muhammad Salim had only stated that prior to this, Muhammad Salim was running a business in a shop which was given in rent to one Ibrahim with merchandise. This does not show that the shop which Muhammad Salim was occupying belonged to the res pondent‑landlady or that he was occupying any shop at the time of filing the application for ejectment. In any event, this point has not been taken in the petition for special leave it cannot be added in arguments for the first time.

Lastly, it is contended that the requirement was not bona fide because the landlady did not mention the name of her son for whom the shop was wanted. In the evidence, the landlady's witnesses stated that the shop was required for Muhammad Salim but her husband A. W. 2 stated that shop was required for Muhammad Bashir, another son of the landlady. This argument fails to notice that immediately after, the witness corrected himself and stated that the shop was required for Muhammad Salim. Therefore, nothing turns on this point.

We have heard the learned counsel at length and are satisfied that the High Court was right in interfering with the findings of the Courts below which were based on irrelevant considerations.

This petition is, accordingly, dismissed.

Petition dismissed.

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