Find a Lawyer

Second Appeal from Original Order No. 636 of 1979, decided on 20th May, 1980.

-----S. 13(3)(ii)‑Eviction‑Personal need‑Landlord himself in occupation of as rented shop wherefrom his eviction already finally ordered Fact, held, sufficient to order eviction of tenant from shop owned by landlord on ground of personal requirement.

Abdul Aziz v. Muhammad Ibrahim P L D 1977 S C 442 rel.

‑‑ S. 13(3)(ii)‑Eviction‑Personal need‑‑Landlord in possession of another shop belonging to himself but such shop got vacated for reconstruction ‑ Application for eviction of tenant (appellant) filed earlier‑Held, landlord can choose any of his premises for personal use.

Sabu Mal v. Nika Ram alias Heman Das 1973 S C M R 185 ; Nuruddin and others v. Asghar Ali and another 1968 S C M R 1087 and Punjab Hardware Maahine Tools Ltd., Karachi v. Wazir Ali P L D 1976 Kar. 233 rel.

Ch. Muhammad Ahmad Bani for Appellant.

Malik Gul Nawaz Ahmad Khan for Respondents.

Dates of hearing : 12th and 13th May, 1980.

On 6‑6‑1975 the respondent No. 2 filed a petition for eviction of the appellant from a shop in property No. P/771, Satiana Road, Faisalabad on the ground of non‑payment of rent from April, 1973 and on the ground of was claimed that the respondent No. 2 having purchased the property from one Abdul Aleem, the previous owner and no notice under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance was served on the appellant and that the rent had already been paid to the previous owner up to December, 1974. The ground on which the present need has been built up was that the respondent No. 2 claimed himself to be in occupation of a rented shop and that his landlord had already proceeded against him. The eviction petition had been contested by the respondent in respect of shop in his occupation and S, A. O. No. 615 of 1979 was dismissed A by this Court and the time allowed to the respondent to vacate the rent ed shop has to expire on 31‑5‑1980 and it was for this reason that the disposal of the present appeal had been. expedited.

2. The learned Rent Controller, Faisalabad framed the following issues

(1) Whether the respondent has committed default in the payment of rent to the petitioner O.P.A.

(2) Whether the petitioner in good faith requires the premises in dispute for his own use and occupation O. P. D.

(3) Whether the notice under section 13‑A was duly served upon the respondent If so its effect.

(4) What is the actual rate of rent whether it is Rs.100 O. P. A.

(5) Relief.

3. The learned Rent Controller, Faisalabad vide his order dated 7‑7‑1977 decided all the issues against the respondent and dismissed the application. The respondent filed an appeal and the learned Additional District Judge, Faisalabad vide his order dated 10‑9‑1979 reversed the finding and accepted the application of the appellant and ordered his eviction.

4. The learned counsel for the appellant has submitted that the findings of the learned Additional District Judge on the question of default and personal need cannot be legally maintained. Abdul Majid (P. W. 4) Record Keeper proved the certificate issued by the Post Office that the relevant record pertaining to the registration of the notice (Exh. P/2) had been destroyed. The respondent had made reasonable efforts to produce the original record. The shop in question had been purchased vide a registered sale deed dated 9‑4‑1973 from one Abdul Aleem. The copy of the notice, dated 24‑4‑1973 is Exh. P/2. In the notice the rent had been demanded from 9‑4‑1973 @ Rs.100 p. m. As the original record was not available the res pondent in his statement dated 24‑6‑1976 specifically stated that the notice had been sent under registered cover and the postal receipt was duly exhibited as Exh. P./I. It would be pertinent to point out that all this evidence had been ignored by the learned Rent Controller. The learned Additional District Judge was perfectly justified in observing that in the circumstances when the original record was not available the examination of the Postman would have been of no avail. The respondent produced the best evidence available with him. The appellant appearing as his own witness had also admitted that he had come to know in December, 1973 about the change of the ownership from the previous owners. The findings of the learned Rent Controller on Issue No. 4 had not been contested by the appellant. In any case the appellant has not asserted that he had paid any rent to the respon dent after the service of the notice. Admittedly the appellant had failed to pay or tender rent due to the respondent and as such the learned Additional District Judge was perfectly justified in holding the appellant to be a defaulter. This finding of fact is based on proper appreciation of evidence. The findings of the learned Additional District Judge on Issues Nos. 1 and 3 are hereby affirmed. ,

5. The learned counsel for the appellant has submitted that from the evi dence on record it is proved that there are other shops in respondent's occu pation and as such the respondent could not get the shop in question vacated for his personal need. This objection cannot be legally sustained on the basis of the evidence on record. Muhammad Yaqoob (P. W. 3) admitted that he obtained possession of one shop in the same building but it had got a fallen roof and that he had got the same vacated on the ground of re construction and that the same was still lying vacant. The respondent further explained that after occupying the shop in question he would be in a position; to re‑construct the other shop. The learned counsel for the appellant has also relied on similar admissions of the P. Ws. 1 and 2 regarding that shop which is said to be in occupation of the appellant which has not so far been either rented out or utilised by the appellant. According, to the respondent the shop was got vacated for reconstruction after the filing of the present peti tion and that the same cannot be used unless it is reconstructed. It is always the choice of the landlord to utilise any of the premises which belonged to him. The present shop cannot be said to be suitable for his needs so as to disentitle him to occupy his own shop. The very fact that he is in occupa tion of the rented premises in respect of which the order of eviction had been finalised is sufficient to order the eviction of the appellant from the present shop. The shop in dispute in occupation of the respondent cannot treated to be a building in his possession suitable for his needs. Reliance in this behalf may be placed on Abdul Aziz v. Muhammad Ibrahim (P L D 1977 S C 442). In this judgment their Lordships have held that the landlord being himself in occupa tion of a rented premises is entitled to get his own premises vacated and the occupation of such a building though suitable for his need was not to dis entitle him to the use and occupation of his own shop. The learned counsel for the appellant conceded that a landlord had the choice to occupy any shop which he needed and neither tenant nor the Courts are the Judge of his needs. The Courts have only to see whether the landlord requires in good faith the shop in occupation of the tenant for his use and occupation. Reliance may be placed on Sambu Mal v. Kika Ram alias Heman Das (1973 S C M R 185), Nuruddin and others v. Asghar Ali and others (1968 S C M R 1087) and Punjab Hardware Machine Tools Ltd., Karachi v. Wazir Ali (P L D 1976 Kar. 233) as regards the choice of the landlord.

6. In view of the above discussion this appeal is dismissed. The appellant is directed to vacate the premises by 31‑5‑1980 so that the respondent can occupy the shop in dispute when he is evicted from the rented shop presently

in his occupation.

K. M. A. Appeal dismissed.