Respondent No. 1, Sheikh Mazhar-ul-Haque, hereinafter referred to as the respondent, made an application for eviction of the petitioner, Abdul Karim, from a shop, situated in Shah Alam Market, Lahore. It was alleged by him that the shop was needed by him and his male children. After usual contest, the Rent Controller, who was seized of the application, made an order of ejectment against the petitioner. Thereupon, he filed an appeal before an Additional District Judge. The appeal was accepted and the case remanded to the learned Rent Controller with the direction that he shall record additional evidence of the parties and then decide the case afresh. Accordingly, the learned Rent Controller recorded the additional evidence and then dismissed the ejectment application.
His order was challenged by the respondent by means of an appeal before another Additional District Judge who accepted the appeal and directed the petitioner to vacate the disputed premises. The petitioner has therefore filed this writ petition against the order of the learned Additional District Judge.
2. The respondent was an officer of the Telephone Department but had been compulsorily retired from service before he had launched ej6'ct_ went proceedings against the petitioner. His case was that he needed the shop in dispute for himself and his two sons. His statement was recorded on two occasions as A. W. 4-once before the case was remanded as aforesaid and then after the case had been remanded. When he was examined for the first time it was disclosed by him that he had two sons of whom the younger one (Dastgir) was running a rented shop but the elder one (Shaheen Pervaiz) was without any shop. Shaheen Pervaiz had also appeared as a witness to support his father. On entering the witness-box for the second time, it was stated by the respondent that Shaheen Pervaiz had also taken another shop on lease.
3. Assailing the order under review, it was contended by learned counsel for the petitioner that the respondent has since been re-instated in Government service and thus his own need for the disputed shop has disappeared. It was also pointed out by him that the respondent had obtained an order of eviction against another tenant, Muhammad Yaqub by name, and, therefore, even if a shop needed by his sons, the respondent could make the said shop available to them by seeking ejectment order passed against Muhammad Yaqub. According to the learned counsel the aforementioned circumstances had not been taken into consideration by the learned Additional District Judge while making the impugned order and, therefore, that order was an order without jurisdiction.
4. While replying to the arguments of learned counsel for the petitioner it was conceded by learned counsel for the respondent that the respondent has since gone back on his Government job. It was, however, urged by him that as there was no evidence on the record showing that the respondent had rejoined Government service, the learned Additional District Judge had not adverted to his re- instatement while making the impugned order. It was also submitted by learned counsel for the respondent that even if the respondent's own need had vanished, his two sons were still in need of the shop in question. It was stressed by learned counsel for the respondent that the respondent could not be non-suited merely for the reason that his sons are presently doing business in rented shops. As regards the eject--ment order obtained by the respondent in respect of the shop of Muhammad Yaqub, the plea raised by his learned counsel was that, for the purpose of doing business, the said shop was not as good as the shop in question and, therefore, the order of ejectment made against Muhammad Yaqub was of no consequence.
5. As for the respondent's re-instatement in Government service, admittedly, by the time of the making of the order under review there was no evidence on the record showing that he had been re-instated. The learned Additional District Judge is; therefore, not to blame for not taking into account his re-instatement while deciding the issue of personal need. If it was the desire of the petitioner then the learned Additional District Judge should examine the. Situation arising out of re- joining of service by the respondent, he ought to have made an application, under subsection (6) of section 15 of West Pakistan Urban Rent Restriction Ordinance, 1959, for making further inquiry but he (petitioner) had omitted to do so. In the circumstances, the petitioner is partly responsible for the lapse attributed to the appellate authority in the matter of determining the effect of re-- instatement of the respondent.
6. Now, even if it is assumed that the respondent's own need has disappeared due to his re-joining the Telephone Department, it will make little difference. As indicated at the outset, the respondent had sought eviction of the petitioner on the plea that he and his male children, i.e. Two sons, wanted to use the shop held by the petitioner. Admittedly, his sons are, in these days, doing business in rented shops. The ejectment proceedings these days doing rise to this constitutional petition were initiated as far back as in 1972 but they have not yielded the desired result to the respondent as yet although a period of nine years has since lapsed. It seems that in view of the inordinate delay which had occurred, in the finalisation of ejectment proceedings, the respondent's sons were constrained to go in for rented premises because, for obvious reasons, one cannot sit idle for years together especially in the present age when the cost of living has gone very high. The case-law is, by now, well-settled on the point that if landlord seeks ejectment of his tenant from any premises belonging to him on the ground of personal need, he cannot be non-suited for the reasons that he is already in possession of premises not owned by him. A This proposition would also hold good in the case in which the landlord seeks possession of his property with a view to accommodating his male children who are occupying property not owned by them or by the landlord. In the circumstances, the respondent's case is not adversely affected by the occupation of rented shops by his sons.
7. This brings me to the ejectment order obtained by the respondent against Muhammad Yaqub.
According to learned counsel for the petitioner that order was not taken into account by the learned Additional District Judge. I am, however, unable to agree with him. It can be easily gathered from the impugned order that the eviction order made against Muhammad Yaqub was considered by the learned Additional Judge and the view expressed by him was that the availability of the shop of Muhammad Yaqub did not constitute a valid ground for non-suiting the respondent. He had given reasons in support of his view which find mention in the following extract from his order :- "Another relevant document is copy of order Exh. R. W. 7/1. This also shows that the present appellant/landlord filed an ejectment petition against another tenant Yaqub on 31-1-1974 which was decided on merits, in favour of the landlord on 1-6-1974. It further shows that the ejectment was sought on the ground of default.
From the analysis of this evidence either it is oral or documentary, it is obvious that the learned Rent Controller has misread the evidence. It is an admitted position from whole of the evidence discussed above that the appellant/ landlord is not in possession of any shop owned by him. If his suns are running any business, either at Hall Road or Beadon Road they are running their business in rented shops. The disputed shop is situated in the area of Shah-Alam Market, Lahore. It cannot be argued that the business of painting cannot flourish in this area when there are large number of such shops in this area. A. W. 3 Shaheen Pervaiz has clearly stated about the business. The disputed shop is also required for him. The point of suitability of the disputed shop has been determined by a witness 1;,.,., d, of the respondent who says that the disputed shop is bigger than r.s;sii:,, the' other two shops. Further a landlord cannot be forced to run Erin yaw his business in a particular shop. If he hag got any shop vacated earlier, it has got no negative effect on his claim. 1t is the choice of the landlord that where he wants to run his business. If the sons of landlord are running their business in rented shops, they cannot be forced to remain in rented shops. As already stated that the learned Rent Controller has misread the evidence it is further painted out that R. W. 2 and R. W.
3 have not stated that the intention of the landlord is only to enhance the rent."
8. I have dealt with occupation of rented shops by the two sons of the respondents. As for the suitability of the shop of Muhammad Yaqub, in respect of Which the respondent has obtained an ejectment order on the ground of default, it was deposed by the respondent that the said shop could not serve his purpose. It was explained by him that the shop in dispute had two doors on different roads. There is nothing on the record to show that the shop of Muhammad Yaqub was also similarly situated. It appears that it was due to the aforesaid location of the shop in question that the respondent had chosen it for his own occupation and that of his sons. The view taken by the learned Additional District Judge, therefore, by and B large, appears to be alright, but even if it is assumed to be erroneous, it cannot be interfered with by this Court, in exercise of its constitutional jurisdiction. The case reported as Muhammad Husain Munir and others v. Sikandar and others (PLD 1974 SC 139), is one of the several authorities in point.
9. Resultantly, this writ petition fails. It is, therefore, dismissed with costs. The petitioner is, however, allowed a period of four months to vacate the shop in dispute.