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Civil Appeal for Special Leave to Appeal No. 267 of 1982, decided on 18th April, 1982).

(Against the judgment of the Lahore High Court; Lahore, dated 28‑2‑1982 passed in Writ Petition No. 767 of 1982).

‑‑ S. 13 read with Constitution of Pakistan (1973), Arts. 199 & 185(3) Eviction‑Requirement for personal use‑Burden of proof‑Accommo dation becoming available to landlady during pendency of ejectment proceedings being suitable, adequate and capable of meeting her requirements‑Not elicited from landlady during examination of witnesses‑Such primarily a question of fact required to be established either by evidence or by uncontroverted pleadings‑District Judge referring to choice of landlady and her preference in matter of selecting one out of many tenanted properties in background of pleadings of parties and not applying test of choice and suitability with reference to vacant possession‑Such aspect of case not highlighted even in High Court‑geld : No misdirection of law attracting exercise of constitutional jurisdiction by High Court took place, hence, leave to appeal refused.

Pope Appliance Corporation v. .Span River Paper Mills Ltd. A I R 1929 P C 38 ref.

S. M. Zafar, Senior Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate‑on‑Record for the Petitioner.

Sh. Zia Ullah, Advocate. Supreme Court with Rana M. A. Qadri, Advocate‑on‑Record for Respondent No. 2.

Date of hearing : 18th April, 1982.

The petitioner, a tenant, seeks leave to appeal against the judgment of the Lahore High Court, dated,28‑2‑1982 whereby a constitutional petition filed by him challenging his eviction from a commercial premises was dismissed.

2. The respondent No. 2, a widow and the landlady of the petitioner, sought his eviction from the premises bearing No. 7‑Aziz Mansion, Link McLeod Road, Lahore on the grounds of bona fide personal need, default in the payment of rent, damage to the property and nuisance. During the pendency yet another ground became available to the landlady and that was the failure of the petitioner to observe the direction of the Controller for depositing monthly rents before the 15th of every month inasmuch as the rent for the month of February was deposited not before but on 26th March, 1980. The Rent Controller rejected the prayer of the landlady for getting the property vacated from the petitioner. On appeal, the District Judge held the personal need of the petitioner and her sons proved and the default in complying with the directions of the Rent Controlled under subsection (6) of section 13 of the Rent Restriction Ordinance. He, therefore, ordered his eviction. The petitioner challenged the order of the appellate authority by resort to the constitutional jurisdiction but failed. Hence this petition.

3. The learned counsel for the petitioner relying on Pope Appliance Corporation v. Span River Paper Mills Ltd. (AIR 1929 P C 38) contended that the appellate authority had a misconception about the law applicable to the case which misconception and misapplication of the law vitiated the finding otherwise one of fact, on the question of personal need of the landlady. It is stated that in the same locality and in the same building the respondent had available vacant premises equal in area to that rented out to the petitioner with the only difference that it was on the first floor. There was nothing, according to the learned counsel for the petitioner, to show that that accommodation was not suitable to the needs of the landlady and that in spite of having it at her disposal she could seek the eviction of the tenant. Her need had to be genuine and additionally she had to establish that she was not in possession of premises which could adequately serve her needs.

4. The question of law raised by the learned counsel for the petitioner is not in dispute. . The question which requires examination in this matter is whether that law is at all applicable to the facts of the case now before us. In paragraph 4 of the ejectment application the respondent specifically stated that‑ '

"The petitioner is not in possession of any other commercial building suitable to her needs."

In reply, the petitioner took up the defence that‑

"The petitioner is also in occupation of other huge portion of commercial building through her tenants."

The only issue on this disputed question was‑‑

"Whether the petitioner requires the property for her own use or for the use of her sons bona fide "

At no stage during the examination of the witnesses it was elicited from the landlady that the accommodation which had become available to her during the pendency of those proceedings was suitable, adequate and capable of meeting her requirements. This being primarily a question of fact had to be established either by evidence or by pleadings not controverted. I was in the background of the pleadings reproduced above that the District Judge referred to the choice of the landlady and her preference in the matter of selecting one out of many tenanted properties. The test of choice and suitability was not applied by the District Judge with reference to the vacant possession which was available with her because, except for arguing the matter, it was not, it appears, the case of the petitioner that the accommodation was equally suitable. Even in the High Court, while arguing the constitutional petition, it appears, that this aspect of the case was not highlighted. We are, therefore, satisfied that there is no misdirection of law such as could attract the exercise of the constitutional jurisdiction by the High Court. Hence leave to appeal is refused. The petitioner, however is allowed the period of two months on his undertaking to voluntarily surrender possession to the landlady subject to the further condition that he shall, in the meantime observe the terms of the tenancy and keep on paying the rent due.

Petition dismissed.

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