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Writ Petition No.2328 of 1985, decided on 28th January, 1987.

---Art. 199--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15--Court-fee--Plea of non-payment of court-fee on memorandum of appeal not raised at proper time--Effect--Question of non-payment of court-fee on memorandum of appeal filed before Appellate Court below not raised by petitioner at proper time, same, held, would be deemed to have been waived by him and same could not be allowed to be raised for first time before High Court in constitutional jurisdiction.

---S. 13 (3)(ii)--Eviction of tenant on ground of personal requirement-- Landlord, held, could not be deprived of seeking possession through ejectment of his property on ground of personal need merely for reason that he has more than one building or different kinds of business- landlord would be legally entitled to ask for vacation of his shop if he required same in good faith for personal use.

--Art. 199--Constitutional jurisdiction, exercise of--Decision of Appellate court below being based on proper appreciation of evidence on record and sound grounds, held, could not be interfered with by High Court in exercise of constitutional jurisdiction when no mis-appreciation of evidence or non-consideration of any relevant material was pointed out in order passed by Appellate Court below and when order was not suffering from any jurisdictional defect.

Nusrat Javid Bajwa for Petitioner.

Jari Ullah Khan for Respondent.

Date of hearing: 28th January, 1987.

The facts giving rise to this petition are that Ata Muhammad Khan (landlord) filed an ejectment petition against Muhammad Khalid Khan and his father Amir Alam Khan petitioners on the ground of personal need.

2. Initially the ejectment was filed against Muhammad Khalid Khan who denied the relationship of landlord and tenant between the parties and took up the plea that his father was in fact the tenant. Consequently, his father was also impleaded as party. Muhammad Khalid Khan and his father contested the petition. On the pleadings of the parties the following issues were framed:-

(1) Whether the petitioner requires the disputed shop for his personal use bona fidely O. P. A.

(2) Relief.

After recording evidence of the parties the learned Rent Controller decided the issues against Ata Muhammad Khan (Landlord) respondent and vide his order, dated 28-1-1985 dismissed the petition. Feeling aggrieved the respondent filed an appeal which was heard and disposal of by the learned District Judge, Mianwali. By his judgment, dated 8-4-1985, the learned District Judge accepted the appeal, set aside the findings on issue No.l and ordered ejectment of the petitioner. Hence this petition.

3. It is, "inter alia", contended- that there has been a misreading of evidence by the Appellate Court and further that there was no proper appeal before the learned District Judge because the memorandum of appeal was not stamped with any court-fees.

4. I have heard the learned counsel for the parties, The question of non--payment of the court-fee on the memorandum of appeal does not seem to have been raised before the Appellate Court at the proper time. If it had raised at that time the Appellate Court might have legally adjudicated upon and determined the amount of court-fee payable on the memorandum of appeal and considered the desirability of granting time for its payment. Since it was not raised at the proper time it shall be deemed to have been waived by the petitioner. Whatsoever, may be the position it cannot be allowed to be raised for the first time in this Court.

5. As regards the question of personal need of the respondent learned District Judge has given cogent reasons for deciding the matter in favour of the respondent. He has rightly observed that the mere fact that the respondent owns more than one properties would not disentitle him to ask for the vacation of a shop/property if he requires the same in good faith. The learned Rent Controller was probably impressed by the fact that the respondent was a big landlord and owned considerable property. As already stated above the landlord) cannot be deprived of seeking possession through ejectment of his property on the ground of personal need merely for the reasons that I he has more than one building or different kinds of business. He is legally entitled to ask for the vacation of his shop if he requires it in good faith for personal use. He has advance cogent reasons for requiring the shop in dispute as he wanted to start the grain brokerage work in the shop in dispute which was situated in the grain market of Mianwali town because under the Local Municipally Rules the said business could not be carried out else where. The learned District Judge had duly considered the evidence led in the case by the parties before arriving at the conclusion that the respondent required the disputed shop in good faith for his personal use. No mis-appreciation of evidence or non-consideration of any relevant material is shown up in the order passed by him. It proceeds on sound grounds and I have no reason to differ or interfere with the same. It was a question of fact which has been properly decided by the competent Court.

6. Finding no illegality muchless jurisdictional defect in the order Judge the writ petition fails and is dismissed.

H.B.T./A-39/L Petition dismissed.

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