MAULVI ANWARUL HAQ, J.--- On 24-7-2004 the respondent filed an application for ejectment of the appellant from a non-residential building located in Walton Cantonment. The ejectment was sought on the ground of bona fide requirement for personal use. The appellant in his written reply objected that he is running a Book Shop in the said building and he is also involved in printing and selling of books of education and cultural value and as such the ejectment petition cannot proceed in the absence of a notice as envisaged by 3rd proviso to Section 17(4)(b)(iii) of the Cantonment Rent Restriction Act, 1963. Further objection was that the application is premature having been filed before the expiry of the term of the agreement between the respondent and the predecessor of the land-lady. On merits, it was stated that the application is not bona fide and that the respondent lady is running a Beauty Parlor in the basement floor whereas the first and second floors are also in her possession and she owns a building opposite the suit property, which she has rented out after filing the ejectment petition. Following issues were framed by the learned Rent Controller:---
(1) Whether the respondent is a defaulter in the payment of rent? OPA.
(2) Whether the petitioner required the disputed property bona fide personal need? OPA
(3) Whether the petitioner had no cause of action on the day she filed the ejectment 'petition? OPA
(4) Whether the ejectment petition is not maintainable due to violation of Section 17(4)(b)(ii) 1st proviso of Cantonment Rent Restriction Act, 1963? OPR
(5) Whether the ejectment petition is not maintainable being premature for noncompliance of the provision Section 17(4)(b)(iii) 3rd proviso of Cantonment Rent Restriction Act? OPR Whether the ejectment petition is not . Maintainable in the present form? OPR
(7) Relief.
Evidence of the parties was recorded. Issue No. 1 was found to be redundant as not arising out of the pleadings. Remaining issues were answered in favour of the respondent and ejectment order was passed on 15-5-2007
2. Learned counsel for the appellant contends that since in the notice addressed to the appellant by the respondent, after purchasing the property, she had mentioned that he is running a Book Store, the afore-noted provision of law relied upon by the appellant shall come into play and the application would not be competent. He has also reiterated his objection that the application has been filed before the expiry of the time fixed in the agreement. He has taken me through the evidence on the record to urge that even on merits a case of bona fide personal requirement is not made out. Learned counsel for the respondent, on the other hand, contends that the said 3rd proviso upon its term is not at all applicable as there is no evidence on record that the building was left out to the appellant for the said purpose expressly or that at any time thereafter he had obtained the contest of the landlady (both present or erstwhile) to use the building for the said purpose: He has also referred to the relevant pieces of evidence to urge that the bona fide need stands established in the manner prescribed by law. According to him, the cause of action matures during the pendency of the ejectment petition.
3. I have gone through the records of the learned Rent Controller, with the assistance of the learned counsel for the parties. So far as the objection as to the application being premature is concerned, none of the parties had made any effort to produce or to formally prove the lease' agreement.
However, photostat copies appear to have been produced by both the parties. The appellant while in the witness-box was confronted with the same and he admitted that it is a correct copy and that this is the lease .Agreement. Now according to the said copy, Mrs. Tazeem Kausar, the former landlady, let out the building to the appellant for a period of three years w.e.f. 22-2-2002. This period expires on 21-2-2005 whereas the application was filed on 24-72004. However, the said period had expired during the pendency of this ejectment petition, which was decided on 15-5- 2007 and as such the objection has lost its efficacy 4.. Coming to the said main plea of the appellant, the reliance is on the 3rd proviso to Section 17(4)(b)(iii) of the Cantonments Rent Restriction Act, 1963. I deem it appropriate to reproduce here the said proviso: "Provided also that this sub-section shall not apply to serias, hotels, dak bungalows, lodging- houses, residential clubs, restaurants, eating houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural value except where landlord requires any such building to carry on any such business of his own, in which case he may make an application under this sub-section after having served two 'years' notice on tenant; but no building which is not, On the commencement of this Act, being used for any of the aforesaid purposes, or has not after' such commencement been let out expressly for any such purpose, shall be converted to any such purpose except with the consent in writing of the landlord."
5. - It will be seen that the said proviso would apply only if a building has been let out expressly for such a purpose or which has been converted for such purpose
7. The appellant entered the witness-box as RW- 1: His examination-in-chief is Ex.R.1/1. In his cross-examination, he was confronted and he did not deny rather expressed ignorance that the Parlor set up in the basement for ladies could not be continued because of the said location. He, however, admitted that formerly it was a lady Parlor and now it is a male Parlor. He also did not deny rather expressed ignorance that the ground floor of the building is most suitable for the requirement of the respondent lady. Similar was his response to the building opposite the building across the street. His witnesses RW-2 and RW-3 also responded in the same manner to the relevant questions. Having, thus, examined the records, I do find that the respondent lady has established her bona fide personal requirement. The allegation of mala fide with reference to desire for enhancement: of rent is not proved. The FAO accordingly is dismissed. However, the appellant is directed to hand over vacant possession of the building in question to the respondent lady on or before 21-7-2008. In case he fails to do so, the respondent lady shall be entitled to executed the ejectment order in accordance with law. No orders as to costs.
8. The records of the learned Rent Controller be remitted back immediately.