' MRS. IRSHAD QAISER, J.--- By this single judgment we propose to dispose of Writ Petitions Nos.1321, 1322, 1323, 1324, 1325, 1327 and 1328 of 2012, wherein the respondents-landlords instituted eviction petitions Nos. 1/RC to 9/RC in the Court of the learned Rent Controller Peshawar for ejectment of the petitioners from the flats, shops and basement in dispute situated in Murad Plaza, Tehkal Bala Jamrud, Peshawar, on the grounds of personal need, default in payment of rent and structural change in the demised premises. On completion of proceedings, the learned Rent Controller dismissed the applications, vide his consolidated judgment dated 23-12-2010. The respondents- landlords preferred an appeal in the Court of the learned Additional District Judge. When the appeal so filed was allowed by the learned Additional District Judge, vide his judgment dated 24-1- 2012, the petitioner filed the instant constitutional petitions.
2. It was argued by the learned counsel for the petitioners that where the respondents failed to prove the grounds of personal need and structural change in the demised premises, the impugned judgment is liable to be dismissed. The learned counsel next contended that the impugned judgment/order is the result of non-reading and misreading of evidence, therefore, it is not sustainable in the eye of law; that the impugned order is a partial eviction order and it is settled principle of law that partial eviction from some part of the demised premises is not acceptable; that it is proved from the record that the demised premises consists of 49 shops, 13 flats and a hall was rented out to various tenants but ejectment petitions were not filed against all the tenants; that choosing of the specific shops and flats for eviction shows mala fide on the part of the respondents and that the respondents failed to prove their personal need. The learned counsel next contended that when the rented premises were sold out by the previous landlord to the respondents, they were required under the law to serve notices upon the petitioners and in the absence of such notices, the impugned finding of the learned appellate Court cannot be sustained'. The learned counsel while concluding his arguments contended that the learned appellate Court without properly examining this factual as well legal aspect of the case has not decided the lis before him in accordance with the requirements of law.
3. As against that, the learned counsel appearing on behalf of the respondents-landlords argued that where the premises in dispute is the sole proprietary of the respondents by purchase through mutation No,12966 dated 22-5-2008 from Iqbal Muhammad Khan and others and they have intended to establish a Banquet/Shadi Hall and a Hotel thereon, the learned Additional District Judge by taking correct view of the subject and situation has rightly allowed the appeal and ordered the ejectment of the petitioners. The learned counsel next contended that after the institution of ejectment petitions the tenants in other 46 shops had surrendered the possession to the respondents and those shops were demolished. The learned counsel next contended that the respondents have filed 16 ejectment petitions against the different tenants out of which some of the tenants had patched up the matter in the Court and agreed to vacate the premises at the time when the issue with the contesting tenants is finally settled.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. The record shows that one Sadaqatullah, Patwari, who was examined as CW1 produced copies of mutation Nos.12966 and 14841 attested on 25-5-2008 Exh.CW1/3. He also produced a copy of mutation No,14260 Exh.CW1/XX-1, vide which the respondents have purchased the landed property from the previous landlords Iqbal Muhammad Khan. These exhibits have clearly established the proprietary status of the A respondents over the demised premises, vide which they purchased the building measuring 6 kanals situated in khasra Nos.2380, 2328, 2275, 2273, 2274 on payment of sale consideration from one Iqbal Muhammad Khan and others consisting of 49 shops and 13 flats along with hall, rented out to different tenants. Moreover, the petitioners have not challenged the ownership of the respondents on the disputed property. They have not denied the relationship of landlord and tenants between the parties. Their main contention is that no notice had been served upon them after the alleged change of the ownership of the premises rented out by Iqbal Muhammad Khan and that the property was purchased by respondents Nos.1 and 2 along with their late father Faiz Rasool and after the death of Faiz Rasool, all his legal heirs are landlords of the demised premises along with the respondents Nos.1 and 2 but the petitions have been filed only by respondents Nos.1 and 2 and not by the other legal heirs of late Faiz Rasool. Thus the ejectment petitions are not maintainable. Nisar Rasool, respondent No,2 who is also attorney for respondent No,1 as well as other legal heirs of Faiz Rasool was examined as P.W.1. He also produced Fard Jamabandi and mutations in respect of suit property Exh.PW1/3 to Exh.PW1/5. He contended that notices under 13-A of the Ordinance were issued to the tenants. He produced and exhibited relevant record in this respect. The notices, envelops of registered AD cards and receipts have been exhibited with out any valid objection on the part of the tenants. In cross-examination they have not denied the issuance of the notices under section 13A of the Ordinance. Issue No,4 has been framed in this respect which has been discussed in detailed by trial Court and decided against tenant while this issue has not been challenged by the petitioners at appellate stage. It is proved from the record that notices under section 13-A were issued to the tenants with regard to the change of ownership.
6. The other objection raised by the petitioners is that the original purchasers of the demised premises were respondents Nos.1 and 2 and their late father Faiz Rasool and after the death of Faiz Rasool, all his legal heirs are landlords of the demised premises along with respondents Nos.1 and 2, but they have not filed the eviction petition against the tenants.
7. Now the question is that whether the present respondents can file the eviction petition in the absence of other legal heirs of deceased Faiz Rasool? In order to settle this dispute, we want to give reference to section 2(c) of the Urban Rent Restriction Ordinance, 1959 wherein the term landlord has been defined which is as under:- "landlord means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other persoh, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under a landlord;"
8. The word landlord as noted above is very wide and encompasses any person who has a right to receive rent and is not restriction only to a I person, who is owner of the property. Reference is made to 2008 CLC 650. Reference is also made to PLD 2007 Lahore 385 wherein it is held:--- "Definition of landlord being very wide, person, even if not owner of property could be deemed to be landlord' in various capacities. Word "landlord" was not limited to the true owner but included an agent, trustee, guardian, receiver, executor and administrator receiving rent on behalf of owner and any person who might be entitled to receive rent for the time being on his own account.
Attorney of landlady receiving rent from tenant who treated him as person to whom they were liable to pay rent, fell within definition of "landlord"."
' Moreover, respondent No,2 who is also attorney for respondent No,1 as well as for other legal heirs of late Faiz Rasool was examined as PW1. The power of attorney is Exh.PW1/1. The claim of the respondents is that the suit premises was rented out to the petitioners by the previous landlord vide agreement deed dated 1-1-2007 and the period agreed upon has been expired on 30-6-2007.
Since they required the suit premises for personal need and intending to establish business of Banquet/Shadi Hall, therefore, they sent legal notices to the petitioners for their eviction. They have also obtained approval of structural changes from the competent authority.
9. Now it is to be seen whether the respondents required the premises for personal bona fide need and whether the site plan of the proposed structural changes was duly approved by the competent authority. It is also to be seen that whether respondents sought partial eviction of 3 shops and 6 flats out of 49 suit shops and 13 flats and it is to be based on mala fide as the intention of the respondents was only to enhance the rate of rent and to receive huge amount as premium.
In order to prove this contention, Nisar Rasool was examined as PW1. He stated "since we required the disputed property for personal need, in this regard before the filing of present petitions we had approached Peshawar Development Authority, for approval of structural changes. In this regard copy of the proposed plan and the required fee being deposited are Exh.PW1/14 (consists of three sheets) respectively. Besides the map obtained we also obtained NOC from Civil Aviation Authority and Air Force Air Headquarter Islamabad. Copy of approval dated 7-9-2009 is Exh.PW 1/16. Copy of NOC from Civil Aviation Authority is Exh.PW1/17. NOC from Air Force is Exh.PW1/18. Copy of approval map is Exh.PW1/2 and my statement already recorded in my affidavit is Exh.PW1/2." He was cross- examined at length but the petitioners/ tenants were not able to rebut his contention. It is admitted fact that the demised premises was comprised of 49 shops and 30 flats and the present petitions are not with respect to all the suit shops and flats, therefore, petitioners raised an objection that since the ejectment was partial eviction, therefore, trial Court had dismissed the petitions being partial eviction. It appears from the record that respondents produced attested copies of the orders of trial Court passed on 17-9-2009, 20-5-2009 and 29-10-2009 in respect of the other shops and flats situated in the demised premises. It has been observed by the learned appellate Court that "per order of the learned Rent Controller passed on all the cases consisting of 46 shops and 7 flats situated within the same demised premises have been decided being patched up between the parties through mutual understanding." It is also contended by the learned counsel, for the respondents that the tenants in other 46 shops had surrendered the possession to them and those shops were demolished. That some of the tenants occupying other portion of the premises had also patched up the matter and had agreed to vacate the premises at the time when the issue with the contesting tenants is finally settled.
10. Keeping in view the above facts and circumstances of the case, we while agreeing with the appellate Court, hold that since there is no dispute between the other tenants of the demised premises and the landlord with regard to vacation of other shops, therefore, it cannot be considered as partial eviction. The present petitioners have not been able F to point out any mala fide on behalf of the respondents. There is nothing on the record that the respondents only want to enhance the rate of rent. Moreover, certain restrictions are imposed on the landlord under section 13(5) of Rent Restriction Ordinance, 1959, vide which penal liability may be imposed when the landlord failed to reconstruct the building in time because he could not evict some of the tenants from the premises. It follows that penal provisions of this subsection sufficient to safeguard the interest of the tenants in case reconstruction is not carried out after obtaining the premises through ejectment proceedings. Under section 5-A the tenants have the right to apply to the Rent Controller for restoration of possession. As the learned Rent Controller without attending to these factual as well legal aspect of the case, has rejected the eviction petitions of the respondents/landlords, we are constrained to hold that his finding is by no attribute in accordance with the requirements of the statute regulating the ejectment of the tenants, therefore, we do not feel inclined to concur therewith. Even otherwise, as, the learned appellate Court handed down detailed findings by discussing each and every issue with reference to the evidence on the record and no prejudice has been shown to have been caused to the H petitioners, has rightly allowed the appeals of the respondents. The arguments with regard to the non-proving the default in payment of rent is without force because mere failure to prove the default in payment of rent will not reflect adversely on bona fide personal need of the respondents landlords as held in the case of Badar & Brothers (Arms and Ammunitions Dealers) Peshawar v. Muhammad Aslam and 2 others (PLD 1977 Peshawar 80)
11. When considered in this background, the impugned judgments of the learned appellate Court being free from any infirmity muchless jurisdictional are not open to any exception. Therefore, all these writ petitions, with the observations made above, are dismissed. However, the petitioners are directed to vacate the disputed premises and to hand over the possession of the same to the landlords within a period of three months positively.