' KHALIL-UR-REHMAN RAMDAY, J.---Through an order dated 2-9-2010, for reasons to be recorded later, this petition had been converted into an appeal and allowed as a consequence whereof the respondent-tenant had been directed to hand over vacant and peaceful possession of the premises in question to the petitioner within a period of two months. Hereunder are the reasons for the said order.
2. It appears from the record that Ahsan-ul-Haque petitioner owned a plot of land in Wah Cantt. On 9-3-1989, he entered into an agreement with Ijaz respondent for construction of shops on the said piece of land amongst others, on the following terms:--
(i) that Ijaz respondent would construct shops on the said plot with his own money;
(ii) that the electricity and the sui gas connections etc. Would also be arranged by Ijaz respondent who was also required to pay the requisite charges of the Cantonment Authorities;
(iii) that after construction of the shops, Ijaz respondent would occupy the said shops as a tenant at a monthly rent of Rs,8000 out of which Rs, 2000 would be paid by the said tenant to the said landlord while the remaining amount of Rs, 6000 per month was to be retained by the respondent towards the cost of construction;
(iv) that the term of this agreement was fixed at ten years which term was however renewable with mutual consent; and
(v) that the above mentioned monthly rent of Rs, 8000 was liable to be enhanced according to the relevant laws after the initial period of five years.
3. It is an admitted position that six shops in question had been constructed by Ijaz respondent within one year and then he took possession of the same from 30-9-1990 with which commenced the above-mentioned term of ten years of the said agreement.
4. On 22-9-2005, Ahsan petitioner filed an application under section 17 of the Cantonments Rent Restriction Act of 1963 seeking ejectment of Ijaz respondent and the reasons urged for the purpose were default in payment of rent and personal need. To avoid unnecessary burdening of this judgment, we do not consider it necessary to go into any details of the first round of litigation, suffice it, however, to say that the said eviction petition filed by the petitioner-landlord was dismissed by the Rent Controller through an order dated 19-4-2007. The appeal filed by the petitioner in the Lahore High Court was dismissed through a judgment dated 15-6-2010 maintaining the said order of the Rent Controller which then led the petitioner to this Court with the present petition.
5. The learned counsel for the parties have been heard at some length and we have also perused the record with their assistance.
6. As it appears from the impugned judgment, the main ground canvassed for eviction of the respondent was the ground of personal need of the petitioner.
7. What had, in the first place, weighed with the two Courts especially the learned High Court in non-suiting the petitioner was that it was only while under cross-examination at the trial that the petitioner had mentioned that he was a Trade Commissioner in the Canadian Embassy; was to retire on 18-8-2006 and required the property for his personal need and that the petitioner had never mentioned either in the petition for ejectment or even through the affidavit (Exh.A1) filed by him that he was in service and that he was about to retire from the same.
8. What had also weighed, rather heavily with the High Court in rejecting the petitioner's plea of personal need was that although he had, as mentioned above, stated that he was due to retire from service on 18-8-2006 yet in spite of the fact that the ejectment petition in question remained pending with the Rent Controller till 19-4-2007, the petitioner never tried to produce any document to show that he had actually retired from service.
9. The third reason which had influenced the High Court for the said purpose was that it was only in the cross-examination that the petitioner had disclosed that he wanted to establish a Trading House in the shops in question and that no such fact had been alleged by the petitioner in the petition filed by him.
10. And what had finally weighed with the High Court to dismiss the petitioner's appeal was that the petitioner had admitted that the property adjacent to the demised premises was owned by him; that he had got the said adjacent property vacated and that he had thereafter sold the same.
11. It is on record, having been claimed and declared by the petitioner that he was employed with the Canadian Embassy as the Trade Commissioner for the last twenty years and that he was to retire on 18-8-2006. The exception taken by the two Courts that he had not alleged in the ejectment petition that the petitioner was in service and was about to retire and that it was only while under cross-examination that he had given the details of the kind of employment in which he was engaged and the time on which he was likely to retire, was misplaced. There is no legal requirement that a party must offer all the details through the pleadings as long as the relevant and necessary jurisdictional fact had been stated and asserted through such pleadings. The petitioner had submitted through his ejectment petition that he required the premises in question in good faith for his personal need and if the details thereof had come on record only through the courtesy of the cross-examiner then the opposite party deserved to thank their own counsel for it and the petitioner could not be punished for the same. As far as the record before the Court is concerned it did stand asserted on record that petitioner had been working as the Trade Commissioner in the Canadian Embassy for the last twenty years; that he was to retire on 18-8- 2006 i,e, within about a year of the filing of the ejectment petition and that he intended to establish a Trading House in the premises in question. Through whose courtesy the said material had come on record was not relevant as long as the said material was available on record. It may be added that the claim of the petitioner that he wanted to set up a Trading House was perfectly reasonable and acceptable as he had had the experience in the field having worked with a foreign mission as its Trade A Commissioner for twenty long years.
12. Both the learned Courts including the High Court failed to appreciate that having so claimed about his service and about the date of retirement, the onus placed on petitioner stood more than sufficiently discharged and it was then for the respondent to show that such a claim made by the petitioner about his retirement was false. No such attempt had been made by the respondent. The impression with the High Court B that once the petitioner had declared that he was to retire on 18- 8-2006 and since the proceedings had remained pending in the trial Court till April, 2009, the fact that no attempt was made by the petitioner to produce any document to establish that the petitioner did in fact retire on 18-8-2006 was an extraneous consideration especially when not even a suggestion had been made to him during the cross- examination that his said claim of his date of retirement was false.
13. Relief had been denied to the petitioner also on the ground that he had got another property vacated prior to the filing of the present eviction petition which he had subsequently sold; that he had even filed a petition seeking enhancement of rent of the property in question and that the tenant had filed a suit for rendition of accounts vis-a-vis the amount of money that he had spent on the construction of the property in question.
14. We have perused the agreement Mark 'A' relating to this construction matter. We do not consider it appropriate to make any comments about the question whether the respondent was entitled to recover the costs of the said construction from the petitioner as we are told that the said matter is pending adjudication with a Civil Court. Suffice it, however, to say that even if it is presumed that the petitioner is liable to pay the said amount of money then the fact remains that the said agreement does not say anywhere that the tenant shall not be asked to vacate the said premises till the entire acclaimed cost of construction is satisfied or adjusted. It is on record that the respondent has in any case enjoyed occupation of the said property for at least twenty years.
Therefore, denying ejectment of the tenant on account of pendency of the suit for rendition of accounts, could not be sustained.
15. The petitioner had been non-suited also on the ground that he had got another property vacated which he had then sold. It had been explained that he had not retrieved the said property through a court of law or even through the Rent Controller and had secured the same after payment of rupees eight lakhs to the tenant. Suffice it to say that ejectment of a tenant by not taking recourse to the provisions of the Cantonments Rent Restriction Act of 1963 and through a private arrangement, was no clog on a landlord's right to seek eviction of a tenant under the said Act of 1963. It may also be added that similar was the case of the learned Rent Controller's reaction to the petitioner seeking enhancement of rent and also seeking his ejectment insinuating that the ejectment was rooted in malice as the purpose was to secure increased rent. Such an inference was also not valid because both the said remedies stood legally provided to a landlord and there was no bar on such a person availing both the remedies simultaneously.
16. Having thus examined all aspects of the matter, we find that the findings of the two courts, though concurrent, were based on misreading of the evidence available on record; that the conclusions and inference drawn by the said learned courts could not be legally sustained and that claim of personal need is found false, the respondent's interests stand protected by law.
Consequently, the two impugned judgments are set aside.
17. These are then the reasons for the short order dated 2-9-2010.