This second Appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance arises out of the following facts:-
2. The appellant Muhammad Ibrahim son of Ali Muhammad Shaikh is the tenant of the respondent Faqir Muhammad son of Abdul Karim Khanzada. The appellant carries on his business as a Goldsmith in the disputed shop belonging to the respondent having C. S. No. 165 of Ward No. 2 of Sarafa Bazar, Jacobabad. The respondent who is a retired Government servant brought ejectment action against the appellant on the sole ground of his personal requirement on 9-2-1977.
3, The learned Rent Controller after hearing the parties disbelieved the testimony of the respondent and reached the conclusion that the disputed shop was not required by the respondent for his personal bona fide use and he therefore dismissed his application.
4. The respondent being aggrieved with the orders of the Rent Controller appealed to the District Judge, Jacobabad who by his order dated 22-4-1979 upheld his appeal and ordered ejectment of the appellant.
5. The learned counsel for the appellant has contended that the disputed shop was originally purchased by the respondent in name of his son Javaid Iqbal who was minor at that time and the respondent was in Government service. The respondent after his retirement in 1975 got it transferred in his name so as to create a ground of his personal requirement though there were other three shops also in names of his sons who did not live at 3acobabad and the respondent himself, was managing these shops. Actually sale of the disputed shop in favour of the respondent was not bona fide but it was made only to misuse it as a ground of personal requirement by the respondent. Javaid Iqbal, his son also owned another shop in the same Bazar which he sold to one Muhammad Haneef for Rs.25,000 who again sold it to Wazir Muhammad for Rs.27,000 only. The disputed shop being in the same `Sarafa' Bazar has been shown to have been sold to the respondent for R3. 3,0C0 only which showed that the transfer of the disputed shop was mala fide and only with a view to create a ground for ejectment. It has also been contended that the respondent has not disclosed either in the notice under section 13-A or his application for ejectment as to what kind of use he- wanted to take from the premises. He has however disclosed it in a reply to a question in cross-examination that he intended either to open a medical store or to work as a petition-writer there. But he has failed to show if he possessed a required certificate to work as a Petition Writer. It has been further contended that his three daughters were also earning members of his. Family and so also his son Javaid lqbal who was in service and drawing a salary of Rs.900 per month. The respondent himself received a sum of Rs.332 as a monthly pension and also Rs.25 as a monthly rent from the appellant. His only son who lived with him was studying M. B., B. S. When the respondent was examined before the Rent Controller on 5-1-1978. There was also a shop in name of Pervaiz who was getting a monthly rent of Rs.300. It has been lastly contended by the learned counsel for the appellant that the observation of the learned District Judge to the effect that the respondent had no other shop was also incorrect as there was another shop also which was purchased by the respondent in name of his son Javaid lqbal when he was a minor and it was being managed by the respondent who was receiving rent for it. There was therefore hardly a case for ejectment of the appellant. In order to support his contention he has relied upon :
(i) 1972 SCMR 437 (ii) PLD 1975 Lab. 200
6. The learned counsel for the respondent on the other hand has contended that the validity of transfer in favour of the respondent cannot be challenged by the appellant at this stage. Moreover no mala fide against the respondent has been attributed by the appellant in his written objections as it would be clear from para. 7 of the objections and no such stand could be advanced at this stage. The requirement of the respondent is within four-corners of section 13 (3) (a) (ii) (a) of the Ordinance. The contention that there are other shops in names of his son is not tenable and it would not in any case be a ground to refuse ejectment of the disputed shop for his personal requirement. The allegation that the ejectment has been sought only to extract higher rent from the appellant would not be helpful to the appellant at this stage as it would be open to the appellant to apply to the Rent Controller for possession of the premises in case the respondent failed to occupy the disputed shop for his personal requirement. The finding of the Rent Controller regarding income of the respondent would also not affect the case for personal requirement of the respondent. He has placed his reliance on :-
(i) 1980 CLC 1189(ii) 1980 CLC 650(i.e) PLD 1976 Kar. 233
7. I have carefully considered the contentions of the learned counsel for the appellant as well as respondent and have also examined the evidence produced by the parties. I have also gone through the citations referred to by the learned counsel for the parties. The point which requires consider--ation is, if the respondent required bona fide the disputed shop for his personal used?.
The contention that the respondent has not specifically disclosed as to how the disputed shop will be used by him is not tenable as the landlord is not required to specifically plead all ingredients of section 13 of the Ordinance and his case would not fall merely because he has failed to plead in his application that the disputed shop would be required by him for either opening a medical store or it would be used by him to work there as a petition-writer. There is also no force in the allegations that the action of ejectment has been initiated only to extract more rent from the appellant as no such circumstance has been proved against the respondent that he or any body else on his behalf demanded enhanced rent from the appellant.
8. As far as relationship of landlord and tenant is concerned, there is, no dispute on it and moment this relationship is accepted the appellant is not entitled to challenge the validity of transfer in favour of the respondent in these proceedings particularly when the appellant has not attributed any against the respondent in his written objections, The case of mala fide as Muhammad Aslam v.
Fazal Karim (1980 CLC 1181) supports this position. The other contention is that there are other shops in names of sons of the respondent. This will not be any assistance to the appellant as it cannot be said with certainty that it was the respondent who was actually owner of these shops.
Moreover there is nothing on record to show that any of the shops even in names of sons of the respondent was vacant or such action for ejectment of any of them is initiated. It is an admitted position that the respondent is a retired Government servant and refusal of ejectment of the disputed shop on the ground that he had an income of about Rs.345 per month is not justified. It is sufficient for the respondent to say that he required the disputed shop either to open a medical store or work as a petition writer and there are absolutely no circumstances to disbelieve his testimony for it. There is clear provision of subsection (4) of section 13 of the Ordinance-whereby the appellant is entitled to regain his possession if the respondent fails to occupy it for his personal use. He being the owner of the disputed shop and his requirement for personal use after his retirement from Government service is undoubtedly bona fide and has been sufficiently substantiated.
9. In the result this appeal fails and I hereby dismiss it with no order as to costs under the circumstances of the case. The appellant/tenant is directed to put the landlord in possession of the disputed shop within two months' time from today.