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Civil Petition for Special Leave to Appeal No. 39-R of 1978, decided on 8th June 1978.

-----S. 13(3), (ii)‑Ejectment proceedings‑Eviction application filed 12 years ago on ground of respondent's personal requirement of shop but when examined by Court 7/8 years later, seeking eviction for running business by his son‑Discrepancy between respondent's evidence and pleadings, held, not very material‑Respondent, held further, even entitled to evict petitioner for his own use or for use of any of his male children‑Petition dismissed.‑[Muhammad Amin v. Ahmad Bakhsh P L D 1976 Lah. 1302 not approved].

Muhammad Amin v. Ahmad Bakhsh P L D 1976 Lah. 1302 not approved.

Malik Nisar Muhammad and another v. Abdul Rauf 1972 S C M R 561 rel.

Moulvi Sirajul Hay, Advocate for Petitioner.

M. Bilal, Advocate for Respondents.

Date of hearing: 8th June 1978.

.‑The dispute in this petition for leave relates to a shop in Jhelum, and, according to Maulvi Sirajul Haq, the petitioner has been the tenant of this shop for about 20 years now. More than 12 years ago, the respondent filed an eviction application against the petitioner for his eviction from this shop on the ground that he required it for his own use and for re‑constructing it. But on account of the pre‑occupation of the lower Courts with what are euphemistically described at the Bar as jurisdictional objections, the Rent Controller recorded evidence in the case only three or four years ago. As the Rent Controller held that the respon dent required the shop both for his own use and for reconstructing it, he ordered the petitioner's eviction. This order was upheld both by the District Court and by the High Court. Hence this petition for leave.

2. Learned counsel very fairly conceded that he could not challenge the concurrent findings against the petitioner that the respondent bad proved his requirement for reconstructing it. But, according to the learned counsel, the three Courts had erred in law in holding that the respondent had proved his requirement for the shop within the meaning of sub‑clause (a) of clause (ii) of subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance (herein after called the said Ordinance), because the evidence on this issue was inconsistent with the respondent's pleadings. In order to appreciate the submission, we may point out that the respondent's plea in his eviction application 12 years ago was that he wanted to run a business in his shop, but when he gave evidence 7 or 8 years later, he said that his son would be running a business in this shop. No doubt the nature of a father's requirement for a shop may be different from that of his son hence the submission that the respondent's evidence was inconsistent with the plea advanced by him in his eviction application. But under clause (ii) of subsection (3) of section 13 of the said Ordinance, the respondent was entitled to evict the petitioner on the ground that he required the shot "in good faith for his own use/or for the use of any of his male children"' As it was not learned counsel's case that respondent's son ‑was occupying a shop in the same urban area within the meaning of sub‑clause (b) of' clause (ii) of subsection (3) of section 13 of the said Ordinance, we pointed out that the discrepancy between the respondent's evidence and pleadings was not material.

Learned counsel then submitted that the respondent should have amended his eviction when application be decided to prosecute it for the requirement of his son: No doubt it Would have been better if the respondent had amended his eviction application on these lines, but if the High Court had allowed the petitioner's appeal on this ground, it would have amounted to making a fetish of technicalities. It therefore, rightly rejected this plea, and it is not irrelevant to point out here that the object of the Legislature in enacting the said Ordinance was to eliminate the technicalities of the law of procedure.

4. Learned counsel, however, relied on the observation of a learned Judge of the Lahore High Court in Mohammad Amin v. Ahmad Bakhsh (P L D 1976 Lah. 1302). There, as in the instant case, the respondent had sought eviction, inter alia on the ground that he required the demised premises (which also happened to be a shop) for his own use, but what he said in evidence was that the shop was required for the use of his children. The learned Judge, therefore, held that the respondent had failed to prove his requirement within the meaning of sub‑clause (b) of clause (ii) of subsection (3) of section 13 of the said Ordinance and observed "Requirement of a property for children cannot be a requirement for the person of the landlord. This shows that the respondent did not require the property bona fide for his own use." With respect, this observation, which is obiter and was unnecessary for the decision of the case, is inconsistent with this Court's judgment in Malik Nisar Mohammad and another v. Abdul Rauf (1972 S C M R 561) and is not good law.

5. There is no merit in this petition which is dismissed. But we give the petitioner 4 months time to hand over the vacant possession of the demised premises to the respondent.

Petition dismissed.

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