M.A. ZAFAR, J. --- Present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by Muhammad Ashraf calling in question the ejectment orders dated 5.07.2007 passed by the learned Rent Controller, Rawalpindi which was affirmed in appeal by the learned Addl. District Judge, Rawalpindi vide orders dated 10.10.2008.
2. Brief facts of the case are that respondent No. 3/landlord filed an ejectment petition, against the petitioner/tenant from shop No. D-148 situated at Sonar Bazar adjacent to Perish Bazar, Rawalpindi and the tenancy commenced through a rent note dated 5.06.1962 executed by petitioner's father Ghulam Farid in favour of Muhammad Ashraf respondent No. 3. According to the ejectment petition, petitioner failed to pay rant for the months' of October, 2002 to April, 2004 amounting to Rs.
19,000/- and also having failed to pay the rent with increase of 20% i.e.f. 1.7.1989 which comes to Rs.
25,000/- as the increase of 25% rent is an automatic. It was also alleged in the ejectment application that petitioner despite receipt of notice asking him to pay rent after .Increasing 25% has failed to do so. Respondent No. 3 also sought ejectment on personal need on the ground that he is a retired Government Servant and the shop in question is required for personal need of his son who is not doing any job and he does not on any other shop except the present one in the Rawalpindi city. That the petitioner/tenant filed written reply denying the averments of the ejectment petition and asserting that he is not defaulter and he has been regularly depositing the rent in. Court and he spent huge amount on the maintenance of the shop in question.
3. From the divergent pleadings of the parties, the learned Rent Controller framed the following issues:--- (1 ) Whether the respondent has not paid the rent amount from October, 2002 to April, 2004 Rs.
19000/- and the petitioner is entitled to get 25% increase of rent from 1.7.1989 that comes to Rs.
25,000/- ? OPA.
(2) Whether the respondent is wilful defaulter of rent?
(3) Whether the respondent repaired the shop with the consent of the petitioner and such expenditure was adjusted in the rent for month of October to December, 2002 and January, 2003? OPR. (4) Whether the petitioner has no cause of action to file the present petition? OPR (4.A) Whether the petitioner has required the disputed shop for his personal need? OPP
(5) Relief That respondent No 3 appeared as A.W-1 and his son Muhammad Azeem for whose personal requirement the shop is required appeared as AW-2, he also produced Muhammad Jamil as AW-3 whereas Inayat Farooq petitioner appeared as RW-1. He produced Muhammad Rafique as RW-2, Tayyab Mehmood Baloch RW-3 as his witnesses to substantiate his version. He also produced Ex.R- 1 to R-13 relating to the purchase of building material eta. And receipt relating to the rent deposited in the treasury for the month of November, 2006 as Ex.R-13 to Ex. R-32 and closed his evidence. The learned Rent Controller vide orders dated 5.07.2007 accepted the ejectment petition and passed the ejectment orders against the petitioner with the direction to hand-over vacant possession of the shop till 5.9.2007 and also pay balance rent of Rs. 21,000/- to the respondent No. 3 and also pay rent for the remaining two months to him at the rate of Rs. 1562.50 per month.
4. Feeling aggrieved from the order passed by the learned Rent Controller, Rawalpindi petitioner filed .An appeal before the learned District Judge which was finally disposed of by the learned Addl.
District Judge, Rawalpindi who vide judgment and order dated 10.10.2008 dismissed the same. The afore-said orders passed by the learned Courts below have been assailed in the present writ petition.
5. It is contended by the learned counsel for the petitioner that shop in question is in possession of the petitioner family for the last 46 years. Earlier to the petitioner his father was doing business and since the business of the petitioner has been' established and just to blackmail the petitioner and to get enhanced rent the petition was filed, male fide.- He further submits that in the month of July, 2001, in Rawalpindi City flood water reached at the above level of the shop and the same was damaged and required its replacement by reconstruction. The petitioner requested to get the roof of the shop reconstructed with the permission of the respondent No. 3, he spent Rs.7/8,000/- and he adjusted the same from the monthly rent. He further submits that respondent No. 3 is an old man of approximately 75 years; therefore, he cannot run any business in the shop in question.
6. After hearing the learned counsel for the petitioner and perusing the record appended with this petition, I find that it is an admitted fact by the petitioner and his witnesses that respondent No. 3 who was an employee in the Ministry had retired and is not doing any business and same is the position regarding his son Muhammad Azeem as admitted by the petitioner while appearing,as RW-1 that he is also without job. It is also an admitted fact from the side of the petitioner by RW-1 and RW-2 that respondent No .3 has no other shop within the District Rawalpindi and the objection of the Iearncd counsel for the petitioner that no particular business was mentioned, which the landlord son wants to do in the shop in question is not of any substance in view of dictum laid down by the Hon'ble Supreme Court of Pakistan in case of Muhammad Iqbal v. Syed Sohail Wajid Gillani (2004 SCM R 1607) and the relevant observations are as under:--- "Landlord was not bound to mention the nature of business in the statement as he keeping in view his financial position margin of profit and chances of success might select any suitable business after obtaining possession of premises. In absence of choice of business the bona fide personal need of landlord was not effected".
And thus the learned Courts below after taking into consideration the evidence of the parties have rightly came to the conclusion qua the personal need of the respondent No. 3. As far as issue of default is concerned, admittedly petitioner did not pay enhanced rent as required under Section 5- A of the Rent Restriction Ordinance by increasing 25% despite receipt of legal notice calling upon him to do so. The rent for the months of October, November, December, 2002 having adjusted against the repairing is hardly notable. Repairing of the premises is the duty of the landlord and in case he fails' to do so then tenant is under obligation to repair the same with the permission of the learned Rent Controller and in this connection petitioner had neither sought any formal permission from the learned -Rent controller nor he made positive efforts in this regard for getting the consent of the respondent landlord in writing and thus the learned Courts below have rightly decided the issue qua default against the petitioner. No misreading or non-reading of the evidence has been pointed out by the learned counsel for the petitioner for exercising Constitutional jurisdiction by this Court. Since the property in question is "non-residential building" and law provides second appeal.
Under Section 15(6) of the Urban Rent Restriction Ordinance but the petitioner has chosen to file writ petition instead of appeal for the reasons best known to him. Resultantly, there is no force in this petition and the same is accordingly dismissed in limine. -