Brief facts of the case are that respondents filed an eviction petition under Section 13 of Urban Rent Restriction Ordinance, 1959 ("Ordinance") in the year 2006 regarding Shop No. 4 situated at 133/4 Temple Road, Lahore against the appellant. The sole ground agitated under Section 13(3)(ii)(a) of the Ordinance was that the shop was required in good faith for the use of their son namely Sarosh Malik. The eviction petition was accepted vide order dated 29.11.2010 by the Special Judge (Rent), Lahore. The appellant preferred an appeal which was dismissed vide order dated 28.03.2011, hence the instant second appeal against the impugned orders.
2. The sole contention of the learned counsel for the appellant is that respondents already have a vacant shop (Shop No. 2) of the same size and almost adjacent to the shop in question and therefore, bona fide personal need is not established. It is contended that no reason has been forthcoming why respondents do not wish to use the adjacent vacant shop and placed reliance on Allies. Book Corporation through L.Rs. v. Sultan Ahmad and others (2006 SCM R 152), Wali Muhammad and another v. Haji Nasaruddin and another (2009 CLC 1241), and Muhammad Iqbal Chaudhry and another v. Secretary Ministry of Industries and Production, Government of Pakistan and others (PLD 2004 S.C. 413) in support of his contention.
3. Learned counsel for the respondents on the other hand, submits that it is the prerogative of the landlord to select the required shop for his personal need and placed reliance on Muhammad Tayyub v. Syed Abdul Habib (2002 SCM R 1320) and Ghulam Ali and 4 others v. Muhammad Shafi and 2 others (1983 CLC 1418) in support of his contention.
4. Arguments heard. Record perused.
5. The eviction petition set up by respondents is solely on the basis of the bona fide personal need of their son. The eviction petition states that Shop No. 2 is already vacant for several years but is not sufficient for business of their son. I have gone through the statements of Respondent No. 1 and her son (AW-2 and AW-3), as well as, perused Ex.A-1 which is the map of the area showing the shops in question to be almost adjacent and in the same area. No where in evidence have respondents explained why Shop No. 2 is insufficient for the business of their son who seems to be unemployed for the last few years after returning from Canada. The evidence however reveals that some other shops on the first floor of the premises are also vacant for the last several years. On the whole no reason worth consideration has been placed on the record to show why Shop No. 2 or vacant Shops on the first floor have not been put to use by the son of the respondents. There is no evidence to show the proposed nature of business for which Shop No. 2 is insufficient. According to the Map, (Ex.A/1) Shop No. 4 which is almost adjacent to Shop No. 2 is of the same size with Shop No. 3 in between. Therefore, it does not appeal to logic how Shop No. 2 is insufficient while Shop No. 4 is adequate for the same business. Reliance with advantage is placed on Allies Book Corporation through LRs. v. Sultan Ahmad and others (2006 SCM R 152) wherein Saiyed Saeed Ashhad, J. speaking on behalf of the Supreme Court of Pakistan, said:-- "13. We are mindful of the settled law that it is the prerogative of the landlord to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of the landlord to give plausible and satisfactory ground/explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use." (emphasis supplied)
6. I also place reliance with advantage on Wali Muhammad and another v. Haji Nasaruddin and another (2009 CLC 1241) wherein Baluchistan High Court dismissed the eviction petition as no explanation was offered by the landlord, who being in possession of two-shops already, failed to show why shop in dispute was further required for the personal use by his son.
7. It, therefore, transpires that while it is the choice of the landlord to select a shop for his personal use, it is also mandatory that the landlord gives a satisfactory explanation why he prefers the shop in question over a similar shop already in his possession or for that matter any other shop of the same category.
8. Plausible and convincing explanation are required of the landlord in making his selection. This stems from "good faith" requirement prescribed by Section 13 of the Ordinance.
9. For the above reasons, respondents have failed to establish bona fide personal need for the business of their son in the presence of the vacant Shop No. 2 already in possession of respondents. I, therefore, allow this appeal and set aside the impugned orders to the extent of Issue No. 1 relating to bona fide personal need. No arguments were levelled by the learned counsel for the appellant regarding Issue No. 2 which has already been decided against the appellant and is, therefore, maintained.