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Civil Petition for Special Leave to Appeal No. 73/R of 1978, decided on 6th July 1978

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 3‑5‑1978 in S. A. O. No. 224 of 1978).

----Ss. 13 & 15‑Contention relating to appreciation of evidence regard ing requirement of shop in dispute for personal use of landlord‑Courts below found to have taken a reasonable view of evidence‑Order of High Court maintained.

‑‑ S. 13(3)(ii)(a)‑Finding of fact‑Held, not open to exception.

Syed M. Shahudul Haque, Advocate and Ch. Akhtar Ali, Advocate‑on Record for Petitioner.

Nemo for Respondent

Date of hearing: 6th July 1978.

, J.‑The petitioner seeks special leave to appeal against the judgment of the Lahore High Court dated 3rd of May 1978, by , which S. A. O. No. 224 of 1978 was dismissed.

In brief the facts are that the petitioner is a tenant of a shop No. C/160 situate in Parris Bazar, Rawalpindi, which was rented out to him by the respondent in February 1973, at a monthly rental of Rs. 200 pursuant to a rent note executed by the respondent in which it was stipulated that the petitioner would not be ejected so long as he continued to pay the rent; and the tenancy was to inure for a period of 11 months. However, in June 1973 the respondent filed an application seeking the ejectment of the petitioner on the grounds, firstly, that the shop was required for his bona fide personal use; and secondly, that he had damaged it. The petitioner resisted the application stating that it was made for the reason that he had not agreed to enhance the rent; and that the portion of the building in which the shop is situate was sufficient for his needs to run the business. The parties led their evidence. From the tenor of the evidence adduced by the petitioner, all that transpired was that he was in occupation of a small shop while the space occu pied by the respondent was large and as such he did not need the small shop for his personal use. On the other hand, the respondent led evidence to show that he was compulsorily retired from service in March 1972; that he joined his son's business being run in the other portion of the building, which catered for ladies garments; and as the space was not sufficient, he needed the shop to accommodate his customers.

Accordingly, the trial Court, on sifting the evidence, reached the conclu sion that the respondent was consistently demanding the vacation of the shop on the ground of his personal need which was bona fide; and as to "the scope and nature of his requirement" it was entirely for the respondent to determine as to what his need was. Consequently the petitioner was ordered to be ejected by order dated 9th of February 1977. His first appeal failed as it was dismissed by the District Judge, Rawalpindi, on 20th of April 1978. The second appeal also met the same fate.

In seeking leave to appeal the learned counsel for the petitioner contended that in vie of the stipulation in the rent note the Courts below erred in not giving effect to it. But this stipulation, in our view, does not place a premium on the right of the respondent to seek ejectment on any other ground recognised under the law. The learned ‑ counsel next contended that the respondent should have served the petitioner with a notice before filing the application. Again, this is not a requirement of law and as such it is devoid of substance.

He next contended that the finding of the Courts below on the require ment of the shop for personal use was against the weight of the evidence on record. But this contention relates to the appreciation of evidence and the Courts below have taken a reasonable view in concluding as they did as to the requirement of personal use being bona fide.

The last contention was that the respondent had got vacated four other shops before executing the rent note; and that being in possession of the remaining portion he was debarred under section 13(3)(ii)(a) from seeking ejectment of the petitioner from the disputed shop. The question again; arises as to whether that portion was sufficient for his needs which was held to be inadequate. This being a finding of fact, it is not open to exception.

There is, therefore, no substance in the petition which is dismissed.

However, we would allow 4 months' time to the petitioner to vacate the shop subject to the payment of monthly rent.

Petition dismissed.

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