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Second Appeal against Original Order No. 139 of 1973, decided 29th April, 1980.

‑‑S. 13‑Ejectment‑Personal requirement‑Fact of appellant's son having no experience in business, held, of no ground for holding appellant not requiring shop for personal business‑As to suitability of shop for business it is for appellant to judge and neither Court nor respondent can have any say in matter.

‑‑S. 15 (4) and Civil Procedure Code (V of 1908), O. XLII, r. 1 and Limitation Act (IX of 1908), S. 5‑Ejectment‑Appeal Limitation‑Seven days' delay occurring on account of non‑availabi lity during such period of certified copies of Rent Controller's Order‑Provisions of C.P.C. relating to appeals having been applied by S. 15 (4) of West Pakistan Urban Rent Restriction Ordi nance to such proceedings, provision of O. XLII, r. 1, C.P.C., held, applicable to appeal‑Appellant cannot take advantage as a matter of right of any time spent by her in obtaining certified copy but delay on such ground generally condoned by High Court‑Delay in filing appeal condoned, in circumstances.

‑‑S). 13‑Ejectment‑Argument about absence of relationship of landlord and tenant‑Raised for first time in appeal and not denied at any stage‑ Argument, held, without force.

‑‑S. 13‑Ejectment‑Argument by tenant that landlord's hus band had already a shop, held, extraneous to consideration as appellant's son‑ for whom shop required entitled to have a separate shop and if he wants to start a. separate business he cannot be tied down to carrying on business in shop of his father

Mian Munawar Hussain for Appellant.

G.' A. Gondal and Mirza Anwar Beg for Respondents.

Date of hearing : 29tb April 1900..

This is a landlord's appeal against the order of the learned District Judge, Gujranwala dated 2‑3‑1973 allowing the respondent‑tenant's appeal against the order of ejectment passed by the learned Rent Controller on 13‑11‑1971 on ground of requirement of the shop in dispute for the personal business of the appellant's son Muhammad‑ Salim Anwar. The learned Rent Controller found that the shop was bona fide required for the personal business but the learned District Judge set aside that order on the grounds (1) that Muhammad Salim Anwar had made a statement that he would carry on business in this shop as well as in the adjacent shop in which a tenant was carrying on the book selling business under the name and style of Azim Book Depot. Since no proceedings had been taken against him, this petition was not bona fide (2) that the most suit able shop for Muhammad Salim Anwar would be the shop in which the business of Azim Book Depot was being carried on since Muhammad Salim Anwar wanted to carry on the same business while in the present shop business .of electric goods was being carried on by the respondent, and (3) that the application was mala fide since Muhammad Salim Anwar had appeared in his B.A. Examination now and he must have been a student of Intermediate or 3rd Year at the time of initiation of proceed ings and for this reason it was not possible for him to establish any full-fledged business.

2. It is established from the record that the appellant's husband is also a businessman and is carrying on business of book selling. In these circumstances the statement of Muhammad Salim Anwar that he had gained experience should have been believed. It is clear that since be belongs to a family of businessmen he must also have sufficient experience in business. But assuming that he had no experience, this by itself would not be a ground for holding that he did not require the shop for personal business. The mere fact that no proceeding has been taken by the appellant against the other tenant running the business of Azim Book Depot cannot be any ground for depriving the appellant's son of his right to start business in this shop. The ground that this shop which is adjacent to the shop in which the business of Azim Book Depot is being carried on, is not as suitable to the son of the appellant as the other shop is no ground in the eye of law since neither the Court nor the res pondent can have any say in this matter. It is for the appellant to judge as to which shop would suit her son. The ground on which the learned District Judge has acted is extraneous to the provisions of a section 13.

3. Similarly the fact that Muhammad Salim Anwar was a student of Intermediate or 3rd Year would hardly be a ground for holding that he could not carry on any independent business of his own.

4. Learned counsel for the respondent, however, argued that in view of the statement of Muhammad Salim Anwar he would not be able to start his business in the shop unless the other said shop is also got vacated. This argument is without force. In fact it is contrary to the provisions of subsection (4) of section 13. If the appellant's son does not start business in this shop within the period fixed by this subsection, the respondent would be entitled to get back the possession of the shop.

5. At this stage Mirza Anwar Beg (another) learned counsel for the respondent appeared and he requested that he may also be allowed to address the Court. I accorded him the permission. He raised the following points :‑

(1) The appeal is barred by limitation,

(2) There is no relationship of landlord and tenant between the parties as would be apparent from the statement of Mumtaz Begum appellant herself and any admission made by the respon dent in respect of such relationship is only gratuitous, and

(3) The husband of the appellant bad shop in which his son is already working and be does not require any other shop.

6. The appeal is certainly barred by 7 days but there is an application under section 5 of the Limitation Act. The reason given in that application is that the delay occurred on account of non‑availability during this period of the certified copy of the Rent Controller's order. Learn ed counsel for the respondent, therefore, argued that such a copy was not necessary to be filed since this appeal is not filed against a decree. I do not agree with the learned counsel since the provisions of C.F.C. relating to appeals have been applied by section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance to such proceedings. In these circumstances the provisions of Order XLI1‑, rule 1 are applicable to this appeal. The appellant cannot take advantage as a matter of right of any time spent by her in obtaining the certified copy of the Rent Controller' order but the delay on that ground can be condoned by the High Court and in such cases delay has generally been condoned by the High Court. In these circumstances I condone the delay in filing of the appeal.

7. The argument about the absence of relationship of landlord and tenant has been raised for the first time on the ground that from the statement of Mst. Mumtaz Begum it appears that she did not know that his shop was owned by her and as such the respondent was not he tenant. This argument is without force since the relationship of landlord and tenant was not denied at any stage.

8. The last argument about Muhammad Salim Anwar's father's having a shop is also extraneous to the consideration. The appellant's son is also entitled to have a separate shop and if he wants to start separate business, he cannot be tied down to carrying on the business in the shop of his father. The Court has no jurisdiction in this respect.

9. The appeal is allowed with costs, the order of the learned District Judge is set aside and the order of the learned Rent Controller is restored. The respondent shall vacate the shop in dispute by the 31st of May, 1980.

N.Y.H. ‑‑‑‑ Appeal allowed.

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